Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200316 DOCKET: C66520

Rouleau, Hourigan and Roberts JJ.A.

BETWEEN

Kim Manos Plaintiff (Respondent)

and

Riotrin Properties (Flamborough) Inc., Wal-Mart Canada Corp. and John Doe Defendants (Appellant)

Counsel: Sabatina Vassalli and Jeff Goit, for the appellant Sivan Tumarkin and Michael Gerhard, for the respondent

Heard: March 10, 2020

On appeal from the judgment of Justice Michael R. Gibson of the Superior Court of Justice, dated January 4, 2019.

Reasons for Decision

[1] The respondent was accidentally sprayed with a fire extinguisher by an employee of the appellant. He commenced an action to recover damages for a respiratory injury he was alleged to have suffered as a result of the incident. At trial, the only issues were causation and damages. The respondent claimed to suffer from reactive airways disorder syndrome (“RADS”) as a result of the incident. The appellant’s position was that the symptoms the respondent was experiencing were the result of a pre-existing condition, or, alternatively, that he was malingering.

[2] The trial judge found that the respondent suffered from RADS that was triggered by the incident. He granted $225,000 in non-pecuniary general damages in addition to pecuniary damages, and damages for subrogated claims for the respondent’s insurers.

[3] The appellant seeks a new trial or, in the alternative, a reduction in the amount of non-pecuniary general damages awarded. Its primary arguments are that the trial judge erred in the admission of the evidence of a participant expert, that his reasons were insufficient because he failed to consider relevant evidence of the appellant’s experts, and that he erred in relying on foreign jurisprudence in making an award of non-pecuniary damages that was manifestly excessive.

(i) Participant Expert

[4] The appellant argues that the trial judge erred by allowing the respondent’s treating respirologist, Dr. Killorn, to give opinion evidence regarding his diagnosis of RADS that went beyond the allowable scope for a participant expert. In response to an objection at trial that Dr. Killorn was opining on the issue of causation, the trial judge distinguished etiology, being the medical cause of a disease or condition, from causation in the legal sense. He held that it was natural for a treating physician to consider the etiology of the condition he or she was treating. Therefore, Dr. Killorn was permitted to testify regarding his diagnosis as a participant expert.

[5] The appellant argues that the trial judge ignored the distinction between legal causation and medical causation in his reasons. It submits that the trial judge relied on Dr. Killorn’s opinion regarding legal causation, which was not formed in the ordinary exercise of Dr. Killorn’s expertise. In addition, the appellant argues that the fact that Dr. Killorn had prepared letters at the request of the respondent means that he was engaged by the respondent for the purposes of r. 53.03, of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[6] Finally, the appellant argues that allowing a participant expert to give evidence as to the ultimate issue of causation, without requiring compliance with r. 53.03 and a report on the issue of causation, amounted to “trial by ambush” and was a breach of procedural fairness.

[7] We are not persuaded by this submission. The trial judge did not rely on the evidence of Dr. Killorn regarding legal causation. Rather, he permissibly relied on Dr. Killorn’s evidence about his diagnosis, which was based on his observations and participation in the events as a treating physician. Further, we see no error in the trial judge’s conclusion that the drafting of the letters, including one addressed to the claims adjuster acting on behalf of the appellant, did not result in a situation where Dr. Killorn was required to comply with r. 53.03.

(ii) Adequacy of Reasons

[8] The appellant argues that the trial judge provided inadequate reasons because he did not explicitly consider the medical evidence of the appellant’s witnesses regarding whether the respondent is suffering from RADS. The parties provided conflicting expert evidence on this issue. The trial judge identified this central causation issue at para. 22 of his reasons:

With respect to the diagnosis of RADS and the overall issue of causation, the plaintiff called Dr. Duncan (family physician), Dr. Killorn (treating respirologist) and Dr. Mintz (expert respirologist). The defendant sought to discount their conclusions. I was ultimately persuaded that their opinions likely most closely reflected what has actually happened to Mr. Manos in medical terms. I accept the opinion evidence of Dr. Killorn and Dr. Mintz concerning their diagnosis.

[9] The appellant adduced evidence from three participant experts, Drs. Neighbour, McIvor and Anderson, that the respondent does not have RADS. The evidence of Dr. Mate, the respondent’s expert respirologist, was consistent with that conclusion. Aside from a reference to these physicians being called by the respondent at trial and a reference to an alternative hypothesis of neutrophilic asthma presented by Dr. Mate, there is no consideration of their evidence in the trial judge’s reasons.

[10] The closest the trial judge comes to analyzing the defence’s medical evidence related to the RADS diagnosis is at paras. 42-43 of his reasons:

I agree that Dr. Chaimowitz aptly described the majority of the specialists’ views regarding the plaintiff’s respiratory illness:

I do note fairly thoughtful and conflicting views about cause of his current respiratory presentation. The majority of those views seem to suggest that whatever predisposition he had to respiratory difficulties, or whatever respiratory difficulties he has had, the exposure to the ammonium phosphate from the fire extinguisher likely sufficiently irritated his airways that it caused a significant exacerbation in his condition sufficient that he likely developed RADS with only modest response to medications.

I would further concur with the view expressed by Dr. Chaimowitz that the most likely explanation is the one that seems the most obvious, which is that the plaintiff is a person whose previous reactive respiratory disease was exacerbated by the irritant from the fire extinguisher.

[11] Proper reasons serve to: (i) justify and explain the result; (ii) tell the losing party why he or she lost; (iii) provide for informed consideration of the grounds of appeal; and (iv) satisfy the public that justice has been done: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 98. For purposes of appellate intervention, the overarching principle is whether the reasons permit meaningful and effective appellate review: Dovbush v. Mouzitchka, 2016 ONCA 381, 131 O.R. (3d) 474, at para. 23.

[12] With respect, the trial judge’s reasons are insufficient. There is no analysis of the evidence of the appellant’s experts who testified that the respondent does not suffer from RADS. Instead, he relies on an incorrect summary of the specialists’ views given by Dr. Chaimowitz, a psychiatrist, who mistakenly stated that the majority of the experts opined that the appellant likely developed RADS as a result of the incident and who was not, in any event, qualified to opine on the RADS diagnosis. While it was open to the trial judge not to accept the appellant’s expert evidence, his reasons had to demonstrate why he rejected it and that rejection had to be rooted in the evidence before him, otherwise his reasons would not be reasonably intelligible to the parties or amenable to meaningful appellate review: Hearn v. McLeod Estate, 2019 ONCA 682, 439 D.L.R. (4th) 217, at para. 29.

[13] Thus, the trial judge did not engage on the critical causation issue. The result is that this court cannot effectively review the trial judge’s reasoning process on this critical issue. This ground of appeal succeeds, and a new trial must be ordered.

(iii) Non-Pecuniary General Damages

[14] The appellant submits that the trial judge erred by awarding non-pecuniary general damages of $225,000 and in relying on foreign jurisprudence in making that award. Given our conclusion that a new trial is required, it is unnecessary to determine this ground of appeal.

(iv) Disposition

[15] The appeal is allowed, and a new trial is ordered. The costs of the appeal are payable to the appellant in the agreed upon all-inclusive sum of $22,500. The costs of the first trial are reserved to the judge hearing the new trial.

“Paul Rouleau J.A.”

“C.W. Hourigan J.A.”

“L.B. Roberts J.A.”