Court of Appeal for Ontario
Date: August 13, 2025
Docket: COA-24-CV-0495
Justices: Simmons, Rouleau and Pepall JJ.A.
Between
Paul Meldazy Plaintiff (Respondent)
and
Wadi Nassar and Toronto Transit Commission Defendants (Appellants)
Counsel
For the Appellants: David Zuber and James Tausendfreund
For the Respondent: Chris Morrison and Margaret Klassen
Heard
June 16, 2025
On Appeal
On appeal from the judgment of Justice Loretta P. Merritt of the Superior Court of Justice, sitting with a jury, dated April 19, 2024.
Endorsement
Simmons J.A.:
[1] Introduction
[1] The appellants, Wadi Nassar and the Toronto Transit Commission (the "TTC"), appeal from a judgment awarding the respondent over $1.5 million in damages arising from a motor vehicle accident.
[2] The issues on appeal relate to the trial judge's failure to put certain questions proposed by the appellants to the jury and to the trial judge's discussion of the evidence and instructions on past income loss in her jury charge.
[3] For the reasons that follow, I would dismiss the appeal.
Background
[4] On January 18, 2016, the respondent was stopped in heavy traffic in his 2014 GMC pick-up truck when he was rear-ended by a TTC bus driven by Wadi Nassar (the "bus accident"). The respondent claimed that as a result of the bus accident he suffered back and neck injuries, anxiety, depression, chronic pain, panic attacks and PTSD symptoms.
[5] Following the bus accident, the respondent was involved in two further motor vehicle accidents (the "subsequent accidents"). The first was on September 6, 2017. His pick-up truck was rear-ended by a Dodge Dart, a vehicle he described as a compact four-door sedan. The second occurred on July 7, 2021. The respondent was driving on Roxborough Road when an Uber vehicle attempting to pull out of a parking spot struck the side of his pick-up truck. According to the respondent, the subsequent accidents caused only temporary aggravations to the injuries caused by the bus accident.
[6] The trial of the respondent's claim for damages arising from the bus accident proceeded in front of a jury for five weeks in March and April 2024. At the opening of trial, but in the absence of the jury, the appellants admitted negligence and liability for the accident.
[7] The trial judge subsequently heard submissions in late March 2024 concerning the questions to be put to the jury. In her ruling[1], she accepted the questions proposed by the respondent and rejected those proposed by the appellants.
[8] Concerning causation, the trial judge held that a question was unnecessary because the appellants had admitted negligence – thereby acknowledging a duty of care, breach of that duty, and that the breach caused harm beyond de minimis. She also found an alternative causation question proposed by the appellants during oral argument both unnecessary and confusing.[2] Nonetheless, the trial judge confirmed the general principle that the appellants were only responsible for the harm caused by the bus accident and that the issue for trial would be what damages the respondent suffered as a result of it.
[9] Concerning damages, the trial judge found, in general, that the questions proposed by the appellants contained embedded assumptions, were overly complicated, and risked causing confusion.
[10] The trial judge summarized the appellants' proposed questions at para. 13 of her ruling. She said they asked the jury to quantify the plaintiff's damages from the date of the bus accident to the date of his September 2017 accident (such damages were referred to in the question as "the past damages of the Plaintiff"), and then asked "whether the plaintiff suffered ongoing pain or limitations [caused by the bus accident] extending beyond the date of the [September 2017] accident". If the answer to that question was yes, the jury was asked to quantify the plaintiff's damages after the September 2017 accident and then "apportion them [by percentage] between the TTC bus accident, the [September 2017] accident and the [July 2021] accident".
[11] The trial judge found the proposed questions flawed for several reasons, including that they presumed that the respondent had suffered divisible injuries, "lean[ed] the jury toward giving weight to the second accident", and were not fair and neutral.
[12] The trial judge was of the view that there were "various ways" the jury could approach "the issue of sorting out what damages [were] caused by [the bus accident]" and that the legal issues to be considered by the jury in assessing damages would be the subject of the jury charge. She said, "[t]here are better ways to ensure the jury understands than to require it to answer the detailed questions proposed by [the appellants], for example, through careful jury instructions."
[13] The jury delivered its verdict by answering the question proposed by the respondent as set out in the jury charge:
1. In what amount do you assess the damages of the plaintiff, Paul Meldazy, arising from the motor vehicle collision on January 18th, 2016? In the following categories:
a) General non-pecuniary damages, pain and suffering, the loss of enjoyment of life: $157,000
b) Past loss of income to the time of trial: $90,000
c) Past medical expenses: $82,457
d) Future loss of income, loss of earning capacity, and loss of competitive advantage: $725,000
e) Future cost of care and medical expenses: $460,000
f) Future housekeeping and home maintenance expenses: $100,000
Issues on Appeal
[14] The appellants submit that the trial judge made the following errors:
i) she failed to permit a jury question addressing causation;
ii) she failed to permit a jury question concerning apportioning damages between the respondent's three motor vehicle accidents;
iii) she failed to summarize in her jury charge important evidence relating to the respondent's credibility; and
iv) she failed to instruct the jury to disregard the respondent's expert's evidence concerning past income loss.
[15] Based on the cumulative effect of these errors, the appellants submit that a new trial should be ordered. In the alternative, they ask that the judgment be varied by eliminating the jury award for past income loss in the amount of $90,000.
Discussion
(1) Failing to permit a causation question
[16] The appellants acknowledge that they admitted liability for the accident at trial. However, they assert that causation was a live issue. An expert in biomechanics called by the appellants testified that the forces involved in the accident[3] were so low that there was no expectation that the respondent would have been injured in the accident and that, in any event, such forces did not explain the respondent's back injury.
[17] The appellants therefore assert that the trial judge erred in failing to permit a standard jury question on causation.
[18] I would not accept this submission.
[19] Even assuming, without deciding, that the trial judge erred in characterizing the appellants' trial counsel's (not Mr. Zuber or Mr. Tausendfreund) admission of negligence as an admission of causation, I am satisfied that the combined effect of the jury question asked and the trial judge's jury charge made clear that the jury could award damages to the respondent only if they were satisfied that any injury suffered by the respondent would not have occurred but for the negligence of the appellants. As noted above, the jury question asked the jury to assess the respondent's damages arising from the bus accident as follows (the specified categories have been omitted):
In what amount do you assess the damages of the plaintiff, Paul Meldazy, arising from the motor vehicle collision on January 18th, 2016? [Emphasis added.]
[20] The trial judge's jury instructions made clear the "but for" causation test the respondent was required to meet:
As I mentioned earlier, [the appellants] admit they are at fault for the accident. This does not make them automatically liable for all the damages claimed by [the respondent]. [The respondent] must prove, by showing on a balance of probabilities, that the accident caused his injuries. In other words, the [appellants] are only responsible for the injuries caused by the bus accident.
The legal principle is expressed in these terms: Mr. Meldazy must prove on a balance of probabilities (more likely "yes" than "no") that "but for" the negligent conduct, the injury claimed would not have occurred. The basic test is known as the "but for" test of causation. The plaintiff must establish that the bus accident was a cause of the injuries. [Emphasis added.]
[21] In addition, the trial judge repeated in her jury charge the appellants' position, which was forcefully set out in the closing address of appellants' trial counsel, that the jury should render a verdict that "there were no damages for either physical or psychological injuries." In his closing address, the appellants' trial counsel urged the jury on more than one occasion to write zero in all the categories listed in the jury question.
[22] Civil jury questions and jury instructions "are intended to work hand in glove": Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, at para. 59. I am satisfied the above-noted jury question and instructions would have made it clear to the jury that they were required to assess whether the respondent had proven that the injuries he claimed would not have occurred but for the appellants' negligence.
(2) Failing to permit questions concerning apportioning damages between the respondent's three motor vehicle accidents
[23] In addition to asserting at trial that the bus accident did not cause any harm to the respondent beyond de minimis, the appellants adduced evidence to support their position that the subsequent accidents had a significant impact on him. They accordingly proposed the series of jury questions described above aimed at apportioning damages between the three accidents.
[24] The appellants submit that their proposed questions are consistent with the basic principle set out in *Athey v. Leonati*, [1996] 3 S.C.R. 458, at para. 32, that a plaintiff need only be put in the position he or she would have been in, absent the defendant's negligence – not a better position. Further, they say their proposed questions are also consistent with the apportionment approach upheld by this court in *Hicks v. Cooper* (1973), 1 O.R. (2d) 221, subsequently adopted in the Ontario Superior Court in cases such as *Broadbent v. Greater Toronto Transit Authority* (2008), 54 C.C.L.T. (3d) 19, at para. 143, and which they claim was endorsed by this court in *M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada)*, 2012 ONCA 135, 109 O.R. (3d) 351, at para. 43.
[25] The appellants contend that the trial judge erred in law and/or in mixed fact and law in failing to allow their proposed jury questions on apportionment of damages between the respondent's three motor vehicle accidents, or some variation of such questions. Further, during oral argument, they submitted that the trial judge erred in her jury instructions relating to assessment of damages and, in particular, in relation to apportionment of damages and divisible and indivisible injuries.
[26] I would not accept these submissions.
[27] While the appellants maintained that the preferable method of addressing damages issues is through jury questions, they acknowledged both in this court and in the court below that such issues could be properly addressed through jury instructions. Without endorsing every aspect of the trial judge's reasoning on the appellants' proposed questions, I am satisfied that she declined to put the appellants' proposed questions to the jury because they were flawed and complex and because she was satisfied that the damages issue could be properly dealt with by adopting the less complex question proposed by the respondent and providing proper jury instructions. I see no error in this approach.
[28] Further, although the appellants rely on Hicks as setting out an appropriate model for jury questions in a case involving successive motor vehicle accidents, their proposed questions did not follow the Hicks model.
[29] The Hicks model is premised on asking the jury to assess damages for an initial accident based on an assumption that the trial in relation to the initial accident took place the day before the next accident occurred. The Hicks model then apportions damages for a subsequent accident by asking the jury to do a global assessment and deducting the quantum assessed for the initial accident from the global assessment. The focus is thus on determining the damages for the subsequent accident after an initial assessment of the damages attributable to the initial accident.
[30] In contrast, the appellants' proposed jury questions asked the jury to assess the "past damages" suffered by the respondent prior to the September 2017 accident even if they found that the effects of the bus accident extended beyond that date and then to assess the global damages suffered by the respondent after September 2017 and apportion them by percentage to the three accidents. The appellants acknowledged in their appeal factum that their proposed questions were novel. Further, appellants' counsel conceded in oral argument on appeal that the reference to "past damages" in the proposed questions was inappropriate.
[31] In all the circumstances, I see no error in the trial judge's decision not to accept the appellants' proposed jury questions but rather to frame the jury question in the manner proposed by the respondent and to address related issues in her jury instructions.
[32] Concerning the jury instructions issue, the appellants did not object at trial to the instructions they now challenge. Moreover, although they included a ground of appeal concerning those instructions in their notice of appeal[4], they confirmed in their appeal factum that they were not advancing it and did not make written submissions on the point.
[33] In my view, in all the circumstances, it is not in the interests of justice to entertain the appellants' submissions concerning the trial judge's jury instructions made only in oral argument. In her jury instructions, the trial judge made it clear to the jury that the appellants were "only liable for injuries attributable to the TTC bus accident." The appellants do not take issue with this instruction. The respondent's counsel was unprepared to comprehensively respond to the appellants' submissions at the oral hearing because the appellants had expressly abandoned their jury instructions ground of appeal in their factum. The jury instruction issues raised by the appellants in oral argument are best left to another day when they can be properly raised and fully argued.
(3) Failing to summarize evidence relating to the respondent's credibility
[34] At the pre-charge conference, appellants' trial counsel raised concerns about the trial judge's draft summary of the respondent's evidence and its impact on the jury's assessment of the respondent's credibility and reliability. Trial counsel suggested that the summary may have "resulted in various sharp points that have been made [being] blunted" and could signal to the jury that they need not concern themselves with the points that had been made.
[35] Further, in relation to one specific paragraph of the summary, trial counsel asked the trial judge to add a sentence concerning a statement the respondent made to an insurance adjuster about his hours of work being reduced after the second accident. The proposed sentence would clarify that the respondent had initially said he thought his statement about his hours of work being reduced was in relation to the first accident but later agreed that his statement to the adjuster was made in relation to the second accident.
[36] The trial judge did not include the requested sentence in her jury instructions. Particularly since the jury was provided with copies of the trial judge's charge, the appellants submit the failure to do so undermined the defence theory of the case.
[37] I would not accept this submission.
[38] In response to the appellants' trial counsel's general concern, before beginning her summary of the evidence, the trial judge expressly cautioned the jury that it was their role to determine issues of credibility, reliability and bias and for that reason, she had not summarized all the evidence relevant to those issues. She said:
I now turn to my summary of the evidence. I preface my remarks by noting that the parties cross examined on credibility, reliability and bias. It is your role as the trier of fact to determine the credibility and reliability of the evidence of the witnesses and in light of your role, I have not summarized all of the evidence on these points.
[39] In addition to this specific instruction, the trial judge also provided the jury with standard instructions that the jury should rely on their own memory of the evidence, not her summary of it, that it was their assessment of what evidence was important that mattered, not hers, and concerning how to assess inconsistencies in a witness's evidence.
[40] In the circumstances, I fail to see how the failure to add one sentence to her jury instructions relating to a factual point constitutes an error. The trial judge expressly instructed the jury that she was not summarizing all the evidence and it was their recollection of the evidence that mattered. Furthermore, the appellants' trial counsel had summarized the evidence at issue in his closing address. He chose not to include it in his statement of the appellants' position that was included in the trial judge's jury charge. I see no error in the trial judge's treatment of this issue.
(4) Failing to instruct the jury to disregard the respondent's expert's evidence concerning past income loss
[41] As of January 2016, the respondent had worked for a construction company owned by his father for many years. At the time of the bus accident, he was being compensated based on a 41.5-hour work week and also received an annual payment equivalent to 28% of corporate profits.
[42] Because the respondent worked for a family business and was paid on the basis of a standard number of hours and a percentage of profits, the respondent called an economic loss expert[5] to assist with the calculation of past loss of income. At the request of the respondent's trial counsel, the expert was qualified to give opinion evidence concerning quantification of economic damages. The appellants' trial counsel confirmed he did not object to the expert being qualified to do so.
[43] The expert testified that he understood that, had the bus accident not occurred, the respondent's sales would have been higher, he would not have turned away work from existing clients and expenses would have been lower because the respondent would not have delegated certain tasks. These and other factors made calculating past income loss challenging. To overcome the challenges, the expert adopted a comparative approach, saying the respondent's loss could be viewed as a function of the cost of replacing the services the respondent could no longer perform. So, he considered the cost of the respondent hiring someone to make him as effective as he was before the bus accident – in other words, so the respondent could have generated the sales and income he was producing before the bus accident and managing the expenses at the same level as pre-bus accident.
[44] Rather than using the respondent's non-arm's length pre-bus accident salary of $245,000, the expert used a reduced figure of $199,989, being the average income in Canada of a senior manager in construction, the same job category as that of the respondent. As calculating economic damages is not an exact science, the expert adopted three scenarios as a range and calculated the economic impact of a 50%, 40% and 30% disability on a comparable wage earner. Further, he took what he viewed was a conservative approach and assumed that the respondent's losses commenced in 2021. These calculations yielded figures of past income loss of $215,500, $172,400 and $129,300 for the period January 1, 2021 to March 18, 2024.
[45] At the pre-charge conference, the appellants' trial counsel submitted that the expert's economic loss theory should not be put to the jury. Counsel argued that the theory reflected a potential loss to the construction company, not to the respondent, because it was based on the cost of a replacement worker. Moreover, there was no evidence that the company had ever hired a replacement worker and the respondent's expert conceded that he did not review the respondent's time sheets, the respondent's actual hours worked did not form part of his calculations and that he did not review or do any calculations concerning the construction company's profits.
[46] The appellants submit that the trial judge erred in failing to instruct the jury to disregard the respondent's expert's evidence concerning past income loss.
[47] I would not accept this submission. The appellants had the respondent's expert's report prior to the trial and did not object to the expert's qualifications or to the admissibility of his evidence on this issue at the time it was adduced. Calculation of past income loss was a difficult issue for many reasons, including those noted above, the fact that the respondent's income was a function of both hours worked and company profitability and that there was no industry average for construction company sales. As the trial judge pointed out during the pre-charge conference, the respondent's expert's evidence was not premised on a replacement worker being hired, rather it was an attempt to value the extent to which the respondent's ability to earn income had been diminished based on the cost of the work he claimed he was not doing.
[48] I acknowledge that a trial judge can have an ongoing gatekeeper function in relation to expert evidence where it emerges during the trial that the prejudicial effect of such evidence exceeds its probative value.[6] However, I am not persuaded that this is a case where the trial judge erred by failing to exercise that function.
[49] The appellants exposed various flaws which they claimed existed in the respondent's expert's evidence, through cross-examination and the appellants' own expert's evidence. These included matters such as the failure to take account of the respondent's hours worked and company profits, which went largely to the weight of the evidence rather than to its admissibility.
[50] As I have said, no objection, or effort to vet the admissibility of the evidence by way of voir dire, was made prior to the evidence being called. Clearly the evidence was an attempt at valuing something that was difficult to value. In the circumstances, I am not satisfied that the appellants have demonstrated that the trial judge erred by failing to instruct the jury to disregard the respondent's expert's evidence in her jury instructions.
[51] In any event, even if an instruction to disregard the evidence might have been appropriate, I am not satisfied that a basis exists for varying the jury's verdict.
[52] The respondent called other evidence at trial in support of his past income loss claim. According to the respondent, following the accident he continued to be paid based on a 41.5-hour work week, whether he worked those hours or not, and the company bookkeeper was keeping track of the shortfall in his hours worked with an expectation that he would eventually pay back the deficit in his hours worked. Although the respondent acknowledged there was no written agreement confirming the arrangement, he and his parents testified that by the trial date, the respondent owed the company between $150,000 and $200,000. During the pre-charge conference, trial counsel for the appellants conceded that the jury could make a past income loss award if they accepted that the respondent had to repay a deficit in hours worked to the company.
[53] The jury awarded $90,000 for past income loss. Clearly, they arrived at this figure based on their assessment of the evidence that was before them. I am not prepared to hold that it was not open to them to do so. When the quantum of damages is difficult to ascertain, it is for the jury to make their best estimate: *Meady v. Greyhound Canada Transportation Corp.*, 2012 ONSC 657, at para. 237, citing *Wood v. Grand Valley Railway Company* (1914), 51 S.C.R. 283, at p. 289. See also *Penvidic v. International Nickel*, [1976] 1 S.C.R. 267, at p. 279. This court should only vary the amount if 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": *Marcoccia v. Ford Credit Canada Limited*, 2009 ONCA 317, 77 M.V.R. (5th) 1, at para. 29, leave to appeal to S.C.C. refused, 33218 (September 24, 2009), citing *Snushall v. Fulsang* (2005), 78 O.R. (3d) 142 (C.A.), at para. 19, leave to appeal refused, [2005] S.C.C.A. No. 519. This high standard is not met in this appeal.
Disposition
[54] As I have not acceded to any of the appellants' grounds of appeal, I would not order a new trial or adjust the damages award.
[55] I would therefore dismiss the appeal and award costs of the appeal to the respondent fixed in the agreed-upon amount of $30,000 inclusive of disbursements and HST.
Released: August 13, 2025
"J.S."
"Janet Simmons J.A."
"I agree. Paul Rouleau J.A."
"I agree. S.E. Pepall J.A."
Footnotes
[1] 2024 ONSC 1903.
[2] Concerning causation, the appellants proposed the following two questions:
Has the Plaintiff proven on a balance of probabilities that the accident of January 18, 2016 caused an injury to the Plaintiff, Paul Meldazy?
In what amount has the plaintiff proven damages for the following items that, but for the negligence of the defendant, would not have occurred?
[3] The bus speed at collision was calculated at 8 km/h.
[4] Paragraph (d) of the appellants' notice of appeal states:
The trial judge erred in law and/or in mixed fact and law, in failing to properly instruct the jury regarding divisible and indivisible injuries.
[5] The expert testified that he operated an accounting practice that specializes in the quantification of economic damages, primarily in personal injury cases, but also in some forensic accounting cases for fraud. His qualifications included a Chartered Professional Accountant designation and a Chartered Business Valuator designation.
[6] *Bruff-Murphy v. Gunawardena*, 2017 ONCA 502, 138 O.R. (3d) 584, at paras. 66-67.