COURT OF APPEAL FOR ONTARIO DATE: 20210507 DOCKET: C66952
Feldman, Paciocco and Coroza JJ.A.
BETWEEN
Joshua West and Robert West Plaintiffs (Respondent)
and
Gordon Knowles and Robin West Defendants (Appellant)
Counsel: Todd J. McCarthy, for the appellant Christopher A. Richard and Katharine A. Book, for the respondent
Heard: March 11, 2021 by video conference
On appeal from the judgment of Justice David L. Edwards of the Superior Court of Justice, sitting with a jury, dated August 6, 2019.
Paciocco J.A.:
Overview
[1] Joshua West, the respondent in this appeal, was injured on June 5, 2010 while a passenger in a motor vehicle involved in a single vehicle accident. He sued the operator of the vehicle as well as its owner, Robin West, who is the respondent’s mother and the appellant in this appeal.
[2] At trial, the respondent argued he was entitled to compensation for past and future income loss based on the premise that “but for” the accident he would have completed post-secondary education and secured employment at an elevated earning capacity.
[3] A jury ultimately awarded the respondent over $1 million, inclusive of interest and costs. Much of that award was for past and future income loss.
[4] On appeal, the appellant asks this court to set aside the jury award and order a new trial on damages. She submits that the trial judge misdirected the jury on the test for causation and improperly excluded relevant evidence in relation to two expert opinions, errors which together resulted in an excessive damages award constituting a miscarriage of justice.
[5] For reasons that follow, I would deny the appeal.
Factual Background
[6] In the early morning of June 5, 2010, the respondent was the back-seat passenger in a vehicle owned by his mother, the appellant, and driven by his friend, Gordon Knowles. The vehicle left the roadway, struck a tree, and caught fire. The respondent was rendered unconscious. He was pulled from the burning vehicle by a passerby.
[7] The respondent brought an action against Mr. Knowles and the appellant, seeking compensation for injuries he allegedly suffered in the accident. The respondent claimed he sustained a head injury which left him with a permanent serious impairment of certain cognitive functions.
The respondent’s alleged educational goals
[8] At the time of the accident, the respondent was registered to start a two-year program at Niagara College in September 2010. This program was designed to qualify graduates for admission to Brock University. The respondent’s expressed goal was to finish at Niagara College, get his Bachelor of Arts degree from Brock University, and then become qualified to work as a teacher.
[9] Around three months after the accident, the respondent began his studies at Niagara College. In his first year, he struggled academically and reported difficulty retaining information. The respondent dropped out of Niagara College during his second year and never completed his program.
[10] In his claim, the respondent alleged that he would have completed his post-secondary education and secured commensurate employment “but for” the impairment allegedly resulting from the head injury he sustained in the accident. He sought damages for past and future income loss on the basis that his earning potential was limited by his failure to complete post-secondary education, a failure the respondent claimed was caused by the accident.
Proceedings at Trial
[11] The respondent’s claim was tried before a civil jury in April 2019. [1] Liability was admitted, but the appellant disputed the extent of the respondent’s head injury, arguing it was only a minor injury from which he had fully recovered.
[12] The appellant also contested the respondent’s claim that “but for” the accident he would have attained his expressed educational goals. The appellant’s theory was that, based on the respondent’s poor academic and attendance record in primary and secondary school prior to the accident, he would not have completed his post-secondary studies and his career prospects would have been no better if the accident had not occurred.
The trial judge’s ruling during re-examination of the appellant’s expert
[13] Dr. Elaine MacNiven, a neurologist, was the sole expert witness called by the appellant at trial. Dr. MacNiven expressed the opinion that the respondent had not suffered a permanent serious impairment from a head injury sustained in the accident. That opinion was based, in part, on Dr. MacNiven’s belief that the accident had only rendered the respondent unconscious for a few minutes or less.
[14] During cross-examination, respondent’s trial counsel sought to discredit Dr. MacNiven’s opinion by suggesting that she had no information about how long the respondent had been unconscious.
[15] In response to this line of cross-examination, appellant’s trial counsel re-examined Dr. MacNiven by asking her whether there was any information in the records she had consulted about a potential timeframe for the respondent’s loss of consciousness. She responded, “I would say I don’t have it all in front of my mind right now, but I would have [it] documented in my report”. Appellant’s trial counsel then attempted to take Dr. MacNiven to page 103 of her expert report.
[16] At this point, respondent’s trial counsel objected to his friend’s attempt to take Dr. MacNiven to a specific page of her report. He argued that appellant’s trial counsel was attempting to lead Dr. MacNiven to correct her with respect to prior inconsistent statements by showing her part of her report, which respondent’s trial counsel contended was not permitted during re-examination.
[17] The trial judge allowed the objection. He ruled that appellant’s trial counsel was permitted to ask Dr. MacNiven whether there was anything in the report that would “clarify” her evidence or to look in her report to refresh her memory, but that he was not permitted to direct her to a specific page.
The trial judge’s ruling regarding the Statistics Canada report
[18] The respondent called Stephanie Greenwald, an accountant, to give expert evidence at trial relating to the respondent’s economic loss. The appellant did not call an economic loss expert of her own but attempted to challenge Ms. Greenwald’s evidence in cross-examination.
[19] During his cross-examination of Ms. Greenwald, appellant’s trial counsel produced a seven-page report published by Statistics Canada containing data and conclusions linking post-secondary educational attainment to income levels (the “Report”).
[20] After asking Ms. Greenwald a series of questions about the Report, appellant’s trial counsel asked the trial judge to have it filed as an exhibit. At this point, respondent’s trial counsel objected, arguing that the appellant had offered no evidence to authenticate the Report. Appellant’s trial counsel responded that since the Report was from Statistics Canada and Ms. Greenwald had relied on other Statistics Canada documents in her work, “it would be helpful to the jury to have [the Report].”
[21] The trial judge deferred his ruling, commenting that he was not prepared, at that point, to admit the Report as an exhibit. He invited appellant’s trial counsel to further question Ms. Greenwald “to get her to agree with the document and that it’s an accurate document from [Statistics Canada]”. The trial judge then added, “I might change my view.”
[22] Appellant’s trial counsel then asked further questions about the Report. During this exchange, Ms. Greenwald testified that she had never seen the Report before. After Ms. Greenwald agreed that the Report appeared to be an official document from Statistics Canada, appellant’s counsel again asked the trial judge to admit the Report into evidence by making it an exhibit. The trial judge declined to do so, noting that the Report had “not been proven” and that “the witness [had] not relied upon [the Report]”.
The exchange between the parties during the pre-charge conference
[23] On April 17, 2019, the trial judge provided counsel with a draft jury charge. The next day, during the pre-charge conference, appellant’s trial counsel raised the following concern about elements of the draft charge dealing with the respondent’s burden of proof with respect to past and future income loss:
MR. FITZPATRICK [appellant’s trial counsel]: Paragraph 60. And it’s dealing with standard [of proof] between actual events and future hypothetical … In other words, the reasonable possibility [of a future loss] must be proven on a balance of probabilities. My concern was, Your Honour, earlier talks about balance of probabilities and then when we start talking about a different method of proof, my concern is that if the jury somehow doesn't tie that together and says, 'Okay, so this is not sort of balance of probabilities.' So that was my concern…
As I say … I know what Your Honour is saying and I'm trying to think of a lay jury and what they would be taking from that. And if they thought that it was somehow different from the balance of probabilities, they may go off on a tangent.
THE COURT: So … I'm going to repeat back to make sure I'm getting your point, but are you saying, in effect, that you would like to see a statement, for example, after, "You must then determine the actual likelihood of this occurring,” a statement to the effect of, 'all of which must be proven in accordance with the balance of probability,' or, 'by a balance of probabilities?’
MR. FITZPATRICK: Something like that. Something like that.
THE COURT: I understand your point.
[24] The trial judge then solicited input from respondent’s trial counsel, who commented, in part, as follows:
MR. RICHARD [respondent’s trial counsel]: I also looked at that part [of the charge] carefully because in every case I have to kind of refresh my memory as to how the burden of proof works with respect to that. What I thought Your Honour was doing was trying to kind of correctly interpret the Supreme Court of Canada in Athey. So I thought that was the approach you were taking and they specifically in Athey cite hypothetical events and their comment is, ‘Hypothetical events, such as how the plaintiff’s life would have proceeded without the tortious injury or future events, need not be proven on a balance of probability.’ So I had thought that that was what Your Honour was trying to reflect.
[25] Appellant’s trial counsel then re-stated his concern as follows:
MR. FITZPATRICK: [I]t’s just that whenever I see the … balance of probabilities and then a different method of proof I think counsel and judges understand, but it might send a message to a jury. So … that was my concern about that part.
THE COURT: Okay I’ll think about that.
[26] Following the pre-charge conference, the trial judge provided counsel with a further version of the charge in an email dated April 18, 2019. In his email, the trial judge stated, “I have not had an opportunity to consider the issue raised by [appellant’s trial counsel] about the onus of proof issue, but thought that you may prefer to receive the draft sooner than later”.
[27] On Monday, April 22, 2019, the day prior to closing submissions and the formal jury charge, the trial judge sent another draft charge to the parties via email. In the email, the trial judge informed counsel that “[u]nless I agree to further changes on Tuesday, this is the Charge that I plan to provide to the jury”. The parties did not request further changes to the charge on onus of proof or causation.
The trial judge’s charge to the jury on the burden of proof and causation
[28] The trial judge’s charge to the jury included the following instruction relating to special damages for past income loss:
In deciding what actually happened in the past, you must weigh the evidence and reach a conclusion on a balance of probabilities. For anything that you decide is more probable than not, you should treat as certain. When you are asked to determine what might have happened in the future, or what hypothetically would have happened in the past but for the injury, you must use a different method of proof. First, you must decide if the event is or was a reasonable possibility. You must then determine the actual likelihood of it occurring. I will refer to this in more detail when I discuss special damages.
You cannot assess [past income loss] with absolute certainty and mathematical precision. The question requires you to predict, to some extent, what would have happened but for the accident and you are required to do that to the best of your ability on the evidence you’ve heard.
Significant to the [respondent’s] claim is his position that but for the accident, he would have completed a two-year program at Niagara College and then enrolled at Brock University in a four-year BA program, with one-year credit given to him because of his Niagara College degree. Or alternatively, he would have completed the Niagara College program and entered the workforce.
If you conclude that because of the injuries he suffered from the accident the [respondent] did not complete his post-secondary education, then the onus is on the [respondent] to prove, or in other words, the standard of proof by which the [respondent] must satisfy, changes with respect to the remainder of your consideration for past lost income. The onus is not on the [respondent] to prove his lost income on the balance of probabilities. Instead, the [respondent] need only satisfy you on the evidence that there is a real and substantial risk or possibility of loss of past income to be entitled to damages under this heading.
What you have to decide, then, is whether there is a real and substantial risk or possibility that the [respondent] suffered a loss of past income because of the injuries sustained. The higher or more substantial the risk of the [respondent] suffering such a loss, then the higher the award he should receive. However, in arriving at your assessment under this heading, you should exclude from your consideration any remote, fanciful, or speculative possibilities. I repeat again, the burden is on the [respondent] to satisfy you that there is a real and substantial risk that he suffered a past loss of income by reason of the injuries he sustained. [Emphasis added.]
[29] The core of the trial judge’s direction to the jury on causation was as follows:
There is the burden of proof on the [respondent] to prove the [appellant’s] fault caused or contributed to the [respondent’s] injury. The test to establish that causation does not need to be applied too rigidly, nor must it be established with scientific precision. It is essentially a practical question of fact that can be best answered by ordinary common sense.
If the [respondent] has satisfied you that his overall condition resulted from the cumulative effects of the injuries sustained in this accident, and his pre-existing condition, the [respondent] is nonetheless entitled to full compensation so long as you are satisfied on a balance of probability that the injuries sustained in the accident materially contributed to his overall condition.
If you are not satisfied that the accident materially contributed to the overall condition, then you should assess damages based only upon the nature and extent of the injuries directly attributable to the accident caused by the [appellant’s] negligence….
If the [respondent] has satisfied you that his overall condition resulted from the cumulative effects of the injuries sustained in the accident, his pre-existing condition, if any, and the injuries sustained after the accident, the [respondent] is nonetheless entitled to full compensation so long as you are satisfied on the balance of probabilities that the injuries sustained in the accident materially contributed to his overall condition.
If you are not satisfied that the accident materially contributed to the overall condition, then you should assess damages based only on the nature and extent of the injuries directly attributed to the accident. That is to say if the accident did not contribute to his final condition, you should segregate the injuries sustained in the accident and assess those damages in isolation from his pre-existing condition, if any, and his post-accident injuries. [Emphasis added.]
The jury’s verdict
[30] In response to the five questions, below, that the trial judge provided to the jury on the verdict sheet, the jury returned their verdict on damages as follows:
(1) As a result of the June 5, 2010 motor vehicle accident, what amount, if any, would you assess for the respondent’s pain and suffering and loss of enjoyment of life? Verdict: $160,000.
(2) As a result of the June 5, 2010 motor vehicle accident, has the respondent suffered a past loss of income for the period from June 5, 2010 until the commencement of this trial? Verdict: Yes.
(3) If the answer to question #2 is yes, at what amount do you assess this past loss of income? Verdict: $50,000.
(4) Will the respondent suffer a future loss of income as a result of the motor vehicle accident of June 5, 2010? Verdict: Yes.
(5) If the answer to question #4 is yes, at what amount do you assess the future loss of income? Verdict: $500,000.
Issues on Appeal
[31] The appellant submits that the trial judge committed three errors that together resulted in a miscarriage of justice; namely, “excessive” damages awards for past and future income loss. Those alleged errors can be stated and approached conveniently as follows:
(1) The trial judge erred in instructing the jury with respect to the causation test they were to apply;
(2) The trial judge erred by unfairly curtailing cross-examination of Ms. Greenwald and denying the request by appellant’s trial counsel to have the Statistics Canada Report, on which he had questioned Ms. Greenwald, filed as an exhibit; and
(3) The trial judge erred in refusing to allow appellant’s trial counsel to direct Dr. MacNiven to specific parts of her expert report during re-examination.
[32] During oral submissions, the appellant advanced the additional argument that some of the passages in the jury charge contained an error in the description of the respondent’s onus of proof to establish past income loss. This issue was raised in the appellant’s supplementary notice of appeal, but ignored in her factum. Not surprisingly, the respondent did not address this issue in his factum. However, in the absence of objection by the respondent, and given the respondent’s readiness to address it during oral argument, I will address this submission as a fourth issue in this appeal.
[33] As I will explain, I would reject all four grounds of appeal.
Analysis
(1) No Reversible Error Occurred in the Jury Direction on Causation
[34] The appellant submits that the trial judge erred by directing the jury to apply the “material contribution” test when evaluating causation related to damages for past and future income loss. She argues that the trial judge directed the jury to apply a “material contribution” test, when they should have been directed to apply the “but for” test.
[35] Even if the trial judge was wrong to use “material contribution” language, a point I need not decide, I would deny this ground of appeal. The appellant challenges the sufficiency of the jury direction, and with such challenges the question this court must answer is “whether the jury would have properly understood the law at the end of the charge”: Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 209 O.A.C. 127, at para. 51 (C.A.); Ross v. Bacchus, 2015 ONCA 347, 126 O.R. (3d) 255, at paras. 30-31; Samms v. Moolla, 2019 ONCA 220, [2019] O.J. No. 1484, at para. 48. For the reasons below, I am satisfied that, at the end of the charge, the jury would have properly understood that they were to apply the “but for” test in determining causation with respect to past and future income loss.
[36] Without question, the trial judge used the language of “material contribution” in directing the jury on the issue of causation. The term “material contribution” appears several times in the charge. The appellant objects to all such references, but takes particular exception that the trial judge twice told the jury that the respondent was entitled to “full compensation” so long as they were satisfied on the balance of probabilities that the injuries sustained in the accident “materially contributed to his overall condition”.
[37] The appellant grounds her objection to such language in the decision in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 8-13 and 46. In that case, at para. 13, a majority of the Supreme Court of Canada affirmed that the test for causation is the “but for” test, and that the “material contribution to the risk” test applies only in cases where “it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it”. The majority in Clements ordered a new trial because the trial judge’s reasons for decision left open the possibility that he had applied a “material contribution to the risk” test rather than the “but for” test in a case where there were not multiple tortfeasors: at paras. 50-54.
[38] The respondent agrees that the “but for” test applies in the case at hand, a concession that is well-taken. As this court recognized in Donleavy v. Ultramar Ltd., 2019 ONCA 687, 60 C.C.L.T. (4th) 99, at para. 69, “the critical threshold … for the application of the material contribution to risk approach is the impossibility of proving which of two or more possible tortious causes is in fact a cause of the injury.” It is the “‘but for’ test [that] is generally applied in establishing causation in the tort of negligence”: Donleavy, at para. 62. This would include cases such as the one before me, which involve the alleged acts of a single tortfeasor. [2]
[39] In resisting this ground of appeal, the respondent submits that the term “material contribution” can be used as an alternative way of describing the “but for” test. He relies, in part, on the pre-Clements decision in Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 41, where Major J. said, “[t]he plaintiff must prove causation by meeting the ‘but for’ or material contribution test.” The respondent therefore submits that we should treat the references to “material contribution” in this jury charge as communicating the “but for” test.
[40] Given my view that at the end of the charge the jury would have properly understood the law it was to apply, I need not consider whether it remains appropriate after Clements to use “material contribution” language in describing or applying the causation test. However, I do share the view expressed by van Rensburg J.A. in Donleavy, at para. 72, that using “material contribution” language where the “but for” test applies “is a potential source of confusion”. Given that the phrase “material contribution” is used in the law of torts to describe a test that differs from the “but for” test, it may be prudent to avoid using the terms “material contribution” or “contribution” when describing the “but for” causation test.
[41] Having said this, I will now explain why the trial judge’s reference to “material contribution” did not confuse the jury in this case.
The trial judge properly directed the jury to apply the “but for” causation test
[42] The contest in question was whether the respondent had met his burden of establishing that “but for” the accident he would have finished post-secondary education, thereby elevating his earning power. The trial judge made it clear to the jury that, in order for the respondent to benefit from such a finding of causation when damages were calculated, the jury had to be satisfied that he would have completed post-secondary education if he had not been injured in the accident.
[43] With respect to past income loss, the trial judge directed the jury that they “must assess the amount that [they] consider the [respondent] might reasonably have earned for the period from the date of the accident, being June 5, 2010, to April 1, 2019, had the accident not occurred, and compare it to his actual earnings to determine whether [the respondent] suffered a loss of income to-date” (emphasis added). He then told the jury expressly that this question required them “to predict, to some extent, what would have happened but for the accident” (emphasis added).
[44] The trial judge again used “but for” language in describing the respondent’s position that “but for the accident, he would have completed a two-year program at Niagara College and then enrolled at Brock University in a four-year BA program.” The trial judge also recounted the respondent’s position that he had “suffered financial loss of income up to the date of the trial because the injuries that he suffered from the motor vehicle accident prevented him from completing his educational plan” (emphasis added). To determine if the respondent had proven his alleged past income loss, the trial judge then told the jury:
You must decide whether absent the motor vehicle accident, [the respondent] would have successfully completed his Niagara College course and found employment, or alternatively completed his Niagara College program and then gone on to be accepted into and successfully complete a BA degree at Brock University and then found commensurate employment. [Emphasis added.]
[45] The trial judge subsequently instructed the jury on how to proceed if they were to “conclude that because of the injuries he suffered from the accident [the respondent] did not complete his post-secondary education” (emphasis added).
[46] Each of these directions to the jury relating to past income loss required the jury to find the “but for” test to be satisfied. In these circumstances, I would hold that, despite the “material contribution” language in the charge, the jury would have properly understood that they were to apply a “but for” analysis in assessing causation for past income loss.
[47] The trial judge then moved on to instruct the jury on future income loss. The trial judge directed the jury that their task relating to future income loss was to assess “the difference, if any, between [the respondent’s] potential earning capacity if he had not suffered the injury and his actual earnings capacity” (emphasis added). In order to comply with this direction, the jury had to apply the “but for” test.
[48] I would therefore find that in assessing causation for the respondent’s alleged past and future income loss, the jury would have properly understood that they were required to apply “but for” reasoning, and no other form of reasoning. In my view, no reversible error occurred in the jury charge.
The appellant did not object to the causation charge at trial
[49] Before leaving this issue, there is one further consideration worthy of mention. The appellant claims that her trial counsel objected to the trial judge’s “material contribution” instruction. I do not accept this. Appellant’s trial counsel raised concerns only about comments that the trial judge had made in his draft charge relating to the applicable onus of proof.
[50] Nor do I accept that the exchange between the parties during the pre-charge conference, after appellant’s trial counsel raised his concerns about the onus of proof, amounted to an objection to the references to “material contribution” in the charge. The appellant submits that this exchange should have alerted the trial judge to his “error” in referring to “material contribution”. I need not decide whether, in the absence of an express objection, providing a trial judge with information that should alert the judge to an error in a jury charge amounts to an objection in law; there is simply nothing in the exchange in question that should have alerted the trial judge to reconsider his proposed causation charge.
[51] Therefore, this is a case where the appellant challenges a jury charge in the absence of an objection at trial. Although not critical to the outcome of this ground of appeal, the absence of an objection supports my conclusion that no reversible error occurred. It is likely that appellant’s trial counsel did not object to the “material contribution” language because he recognized that the charge, when taken as a whole, posed no risk of leading the jury to misapply the law of causation on the issues that mattered.
[52] Accordingly, I would find no reversible error in the jury charge.
(2) No Error Occurred Relating to the Statistics Canada Report
[53] The trial judge did not unfairly curtail the cross-examination of Ms. Greenwald, the economic loss expert called by the respondent, on questions arising from the Statistics Canada Report. Nor did the trial judge err by denying the appellant’s request to admit that Report into evidence as an exhibit. I would dismiss this ground of appeal.
[54] It appears appellant’s trial counsel printed the Report out from the Internet. The Report had not been produced during discovery, nor was the respondent provided with advance notice that it would be adduced at trial. Evidently, it is the appellant’s position that the Report should have been admitted into evidence as proof of the correlation between education and income, so that the jury could then rely on the Report in quantifying the respondent’s income loss.
[55] The appellant submits that the trial judge erred by “unfairly” limiting the cross-examination on an “authoritative and public report”, and by not making the Report an exhibit, which she argues was admissible under s. 32 of the Ontario Evidence Act, R.S.O. 1990, c. E.23.
[56] I see no merit in these arguments. The trial judge did nothing to curtail the cross-examination. Questions the appellant’s trial counsel attempted to ask using the Report were permitted. The cross-examination ended only when appellant’s counsel said, “[t]hose are all my questions.” Indeed, respondent’s trial counsel did not initially object when appellant’s trial counsel produced the Report and began using excerpts from it to cross-examine Ms. Greenwald. The objection arose only when appellant’s trial counsel attempted to have the Report entered into evidence as an exhibit.
[57] Nor, in the circumstances, was the Report itself admissible. To show this, I need not address whether the trial judge was correct in excluding the Report because it “had not been proven” or shown to be authentic, although I am strongly inclined in that direction. I need not pursue this question because the trial judge was certainly correct in excluding the Report on the basis that the witness had not relied on it.
[58] The law permits expert witnesses to be cross-examined using a published document, but the document itself does not become evidence unless the expert effectively incorporates it into their evidence by recognizing it as authoritative; in other words, by relying on the document: see R. v. Marquard, [1993] 4 S.C.R. 223, at pp. 251-52; R. v. Anderson (1914), 22 C.C.C. 455 (Alta. C.A.), at pp. 459-60.
[59] Ms. Greenwald did not rely on the Report. She had never even seen the Report before. Although she expressed agreement with specific propositions put to her from the Report, at no time did she affirm the general accuracy of the Report or recognize the Report itself to be authoritative. Her agreement that the Report was published by Statistics Canada is not enough to treat it as having received her expert approval. Quite simply, the appellant did not establish a proper basis for the admission of the Report.
[60] Section 32 of the Evidence Act does not assist the appellant. This provision was not cited before the trial judge. Even if it is now open to the appellant to rely upon s. 32 on appeal, that provision does not support the admission of the Report. Section 32(1) provides as follows:
Where a book or other document is of so public a nature as to be admissible in evidence on its mere production from the proper custody, a copy thereof or extract therefrom is admissible in evidence if it is proved that it is an examined copy or extract, or that it purports to be signed and certified as a true copy or extract by the officer to whose custody the original was entrusted.
[61] I need address only one of the preconditions in s. 32(1) to show that it does not help the appellant. Assuming, without deciding, that a Statistics Canada report is a public document within the meaning of s. 32, the Report would only be admissible under s. 32(1) if it was produced “from the proper custody”. No such evidence was led.
[62] In her appeal factum, the appellant also relies upon this court’s decision in R. v. St. Lawrence Cement Inc. (2002), 60 O.R. (3d) 712 (C.A.). That decision does not assist the appellant, either. St. Lawrence Cement deals with judicial notice of regulations, not judicial notice of reports issued by government agencies. Moreover, at no point was the trial judge asked to take judicial notice of the Report. Given that the Report was being offered to establish “adjudicative facts” (facts relevant in determining the factual dispute between the parties), it is most unlikely, in my view, that the principles of judicial notice would have supported admitting the Report, even had this avenue for admission been raised: see R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 62; R. v. Perkins, 2007 ONCA 585, 228 O.A.C. 120, at paras. 38-39.
[63] Finally, although a trial judge is entitled to mark a document that has been used during cross-examination as a lettered exhibit to assist the trier of fact in understanding the answers given during cross-examination, this is a matter of discretion. This trial judge was not asked to exercise that discretion; appellant’s trial counsel clearly asked him to make the Report an exhibit to be used as evidence in the case.
[64] Accordingly, I would not accept this ground of appeal.
(3) No Reversible Error Occurred During Dr. MacNiven’s Re-examination
[65] When Dr. MacNiven was being re-examined, the trial judge refused to allow appellant’s trial counsel to direct the witness to specific parts of her expert report. Counsel apparently wished to do so to assist Dr. MacNiven in giving testimony in response to her cross-examination by the respondent. I see no error in this decision by the trial judge; he was entitled to make it. In any event, the appellant has not shown that this ruling caused a miscarriage of justice.
[66] This episode concerned testimony Dr. MacNiven gave in cross-examination about the length of time the respondent had been unconscious as a result of the accident. The trial judge ruled that appellant’s trial counsel could ask Dr. MacNiven to look in her report, but he could not direct her to a specific page.
[67] Appellant’s trial counsel accepted this ruling without further objection and responded that he thought he might be able to find the information he was seeking in an exhibit. He tried to do so without success. The trial judge then gave him the lunch break to continue his search. When the trial resumed, appellant’s trial counsel pursued other grounds of re-examination but did not return to the foundation for Dr. MacNiven’s premise that the respondent had been unconscious only a short time.
[68] I see no error in what transpired. Given that Dr. MacNiven had indicated she could not recall, without examining her report, what information she had relied on relating to the respondent’s loss of consciousness, the trial judge was entitled to permit Dr. MacNiven to consult her report to refresh her memory. He was prepared to do so and invited appellant’s trial counsel to have Dr. MacNiven review her report for this purpose. Although other judges may have gone further and exercised their discretion, in the interests of trial economy, to permit counsel to direct the witness to a relevant location in their report, the trial judge was not required to permit this. His decision not to permit it was understandable in the circumstances. Indeed, appellant’s trial counsel sought to pinpoint the material he wanted Dr. MacNiven to consult before he had even asked her to examine her report to find the information in question.
[69] In any event, the appellant has failed to establish that this ruling caused a miscarriage of justice. The trial judge gave appellant’s trial counsel other possible avenues to bring Dr. MacNiven to relevant parts of her report, if any, but those avenues were not taken.
[70] Moreover, I have examined page 103 of Dr. MacNiven’s report, the page to which appellant’s trial counsel attempted to direct her. I see nothing in that page that would in any way have supported Dr. MacNiven’s belief that the respondent was unconscious for only a few minutes or less. Nor has the appellant produced any other evidence to support her contention that the expert report could have assisted Dr. MacNiven in overcoming the challenge made in cross-examination.
[71] I would therefore reject this ground of appeal.
(4) No Error Occurred in the Jury Direction on Standard of Proof
[72] Unlike past events, hypothetical events, such as how a plaintiff’s life would have proceeded absent a tortious injury, need not be proven on the balance of probabilities. Instead, hypothetical events must be “given weight according to their relative likelihood”: Athey, at para. 27; MacLeod v. Marshall, 2019 ONCA 842, 148 O.R. (3d) 727, at paras. 17-18.
[73] The appellant does not contest this proposition. However, she argues that past income loss is a past event, rather than a hypothetical event. She submits that the trial judge therefore erred in the passages reproduced above at para. 28 by instructing the jury that the respondent was entitled to compensation for past income loss if he established “a real and substantial risk or possibility of loss of past income”. The appellant argues that the jury should have been told that the onus was on the respondent to establish past income loss on the balance of probabilities.
[74] I do not agree with the appellant’s conception of the law. Thorburn J.A. rejected the same argument in MacLeod, at paras. 17-18. The relevant general rule was put succinctly by J.E.D. Savage J.A. in Gao v. Dietrich, 2018 BCCA 372, at para. 34:
With respect to past facts, the standard of proof is the balance of probabilities. With respect to hypothetical events, both past and future, the standard of proof is a “real and substantial possibility”.
[75] The rationale for these distinct standards is simple: what would have happened in the past, but for an injury, is no more knowable than what will happen in the future. The balance of probabilities standard is appropriate for past events which have actually occurred. However, it is too rigid when assessing, hypothetically, what would have occurred in the past if not for some tortious conduct. Instead, in such circumstances a lower, more flexible standard of “real and substantial possibility” applies.
[76] The income the respondent would have earned between the accident and trial but for his injury is hypothetical. The trial judge was therefore correct to instruct the jury that they were to award the respondent compensation under this head of damages if there was a “real and substantial risk or possibility that [he] suffered a loss of past income because of the injuries sustained” or, in other words, that he would have finished school and earned more than he did up to the date of trial, had he not been injured in the accident.
[77] Accordingly, I would dismiss this ground of appeal.
Conclusion
[78] For all these reasons, I would dismiss the appeal and order costs on the appeal in the agreed upon amount of $20,000, payable to the respondent, inclusive of disbursements and HST.
Released: May 7, 2021 “K.F.” “David M. Paciocco J.A.” “I agree. K. Feldman J.A.” “I agree. S. Coroza J.A.”
Footnotes:
[1] Mr. Knowles, the driver of the vehicle and the appellant’s co-defendant, did not participate at trial.
[2] Although there were two defendants named in the respondent’s claim (the operator and the owner of the motor vehicle in which the respondent was a passenger), only the conduct of the operator is relevant to the causation inquiry, as the liability alleged against the appellant owner is vicarious.