Court of Appeal for Ontario

Date: 20241011 Docket: COA-23-CV-0625

Before: Roberts, George and Wilson JJ.A.

Between:

Laelana Ali Plaintiff (Appellant)

And

Anam Irfan and Syed Ahmed Defendants (Respondents)

Counsel: Darryl Singer, Allan Cocunato, and Jillian Carrington, for the appellant Ryan Truax, for the respondents

Heard: October 2, 2024

On appeal from the judgment of Justice William M. LeMay of the Superior Court of Justice, dated July 24, 2023, sitting with a jury.

Reasons for Decision

[1] The appellant appeals the judgment of the trial judge dated July 24, 2023, and asks that this court substitute its own decision or a new trial be ordered. After the appellant’s submissions, the appeal was dismissed from the bench with reasons to follow. These are our reasons.

[2] This action arose from a motor vehicle accident that proceeded to trial with a jury. At trial, the sole issue was whether the appellant had sustained a loss of competitive advantage in the workplace as a result of injuries arising from the accident. The jury was asked to determine three questions:

Did the accident cause or contribute to a psychological or physical condition that the [appellant] continues to suffer from as of today?
If the answer to question one is yes, has the [appellant] suffered a loss of competitive advantage as a result of the accident?
What compensation, if any, should be paid for that loss of competitive advantage claim?

[3] The jury returned a verdict finding that while the appellant had suffered some psychological or physical injuries from the accident, she had not sustained a loss of competitive advantage. Given its determination of the first two questions, the jury did not answer question 3. The trial judge then entered a judgment in accordance with the jury verdict dated July 24, 2023.

[4] The appellant submits that the answers to the jury questions are irreconcilable and that the jury verdict is therefore unreasonable. She highlights that the onus of her proving that there is a real and substantial possibility of a loss of competitive advantage is less than on a balance of probabilities and argues that the respondent failed to call evidence to contradict the appellant’s evidence that her ability to work was impaired by her injuries. She submits that it logically follows from the jury’s acceptance of the appellant’s evidence that she continued to be impacted by the accident that she suffered a loss of competitive advantage.

[5] We do not accept these submissions.

[6] We start with the well-established appellate standard of review of a jury verdict. Where there is some evidence to support a jury’s verdict, a high degree of deference will be granted and a verdict will not be set aside even if the jury could have arrived at a different determination based on the evidence: Lazare v. Harvey, 2008 ONCA 171, at para. 29; Kerr v. Loblaws Inc., 2007 ONCA 371, at paras. 4, 53. In McCannell v. McLean, [1937] S.C.R. 341, at p. 343, the Supreme Court stated that, "the verdict of a jury will not be set aside as against the weight of the evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it."

[7] The appellant fails to meet the high threshold required to demonstrate that there was no evidence to support the verdict and that no jury properly instructed could have answered question two in the negative after finding that the appellant suffered some injuries in the accident.

[8] There was no inconsistency in the jury’s answers to the first two questions. They are supported by the evidence that the jury was entitled to accept. Specifically, there was evidence to support the jury’s determination that while the appellant suffered some injuries, they did not result in a disadvantage to her in her job. It was open to the jury to accept the evidence that the appellant had prior medical problems and had been involved in two subsequent motor vehicle accidents in which she had sustained injuries. It was also open to the jury to reject the appellant’s evidence about how the subject motor vehicle accident impacted her career as a teacher and to accept the evidence of her employer that supported the finding that there was no impact. There is no basis upon which to interfere with the jury’s findings.

[9] Nor do we accept the appellant’s submission that her evidence was unchallenged. Credibility was an issue at the trial and the jury was properly instructed on how to deal with credibility issues. The appellant no longer takes issue with the correctness of the jury charge. The appellant was thoroughly cross-examined at trial. She did not call any medical evidence at trial, nor did the evidence from her employer support the claim that her work trajectory had been adversely affected by her injuries from the accident. The onus was on the appellant to demonstrate that there was a real and substantial possibility that she had suffered a disadvantage in her employment: Lazare, at para. 18. The jury’s finding that she had not suffered such a disadvantage meant that the appellant had not met her burden of proof. That finding was open to them on the evidence.

[10] The appellant asks that this court set aside the jury verdict and substitute its own assessment of damages. Even if we were persuaded that the jury verdict was unreasonable, which we are not, for the reasons set out in Lazare, it would not be appropriate for this court to determine a figure for future loss of competitive advantage given the issues of credibility and causation which were present at trial.