ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. 06-CV-318795

DATE: 20121011

BETWEEN: BILJANA BEADER (Plaintiff)

AND : CORY LLOYD EVANS (Defendants)

BEFORE: M.A. SANDERSON J.

COUNSEL:
Esther M. Cantor for the Plaintiff

Blair Y. Nitchke for the Defendant

R U L I N G

re Threshold Motion

[ 1 ] This trial commenced on Tuesday, May 22, 2012 and continued until June 12, 2012. Only damages were in issue. On the last day of the trial, I heard a "threshold motion"/submissions from counsel for the Defendant to the effect that the Plaintiff had not satisfied the onus of proving that she fell under the statutory exception in s. 267(5) of the Insurance Act , i.e., in the accident of February 3, 2005, she did not suffer and does not suffer from a permanent serious impairment of an important physical, mental or psychological function.

[ 2 ] On the same day, the jury awarded the Plaintiff general damages of $10,000, but nothing for past or future

(a) income loss,
(b) housekeeping expenses; or
(c) treatment and rehabilitation expenses.

[ 3 ] After the jury returned, as did Brown J. in Clark v. Zigrossi 2010 ONSC 5403 , I questioned whether counsel for the Defendant still wanted a formal ruling on the threshold issue. It appeared that by reason of the applicable statutory deductible, the Plaintiff would not recover any damages.

[ 4 ] In Clark , Brown J. wrote at paragraph 17:

[17] The threshold motion that has been brought before me is one that I understand is standard practice for defendants to bring. The context of this case leaves me scratching my head as to why I should have entertained a threshold motion at all. The jury’s verdict of $5,000.00 in general damages reduced, as it must be, by the statutory deductible of $15,000.00, results in an award of zero to the Plaintiff; that is to say, the Plaintiff did not obtain judgment. The threshold motion would result in exactly the same result - i.e. if granted, the action would be dismissed. I am alive to the fact that on the issue of costs, the Court of Appeal, in its decision in Rider v. Dydyk held that for the purpose of considering Rule 49 offers the deductions required to be made for an award of non-pecuniary loss under section 267.5 of the Insurance Act should not be taken into account. So, I shall wait to see what Rule 49 offers, if any, there may have been. But that is the only possible relevance I see for a threshold motion in this case.

[ 5 ] In Clark , Brown J. wrote at paragraphs 8-11 and 18:

[8] A threshold motion may be brought before or at trial. Where the motion is brought during a jury trial, what role may the jury’s verdict play in the judge’s determination of a threshold motion? That issue was nicely summarized by Reilly J., in Parks v. Peter :

The Ontario Court of Appeal has made it quite clear that the trial judge has an independent obligation to assess the threshold issue, which assessment and ruling might be in fact quite inconsistent with a jury verdict (resulting in at least one case "judge nullification" of a jury's award of damages). In Kasap v. MacCallum , 2001 7964 (ON CA) , [2001] O.J. No. 1719, the trial judge ruled against the plaintiff on the threshold issue while the jury deliberated on the issue of damages. The jury then returned and awarded the plaintiff substantial damages. In accordance with his ruling on the threshold issue the trial judge dismissed the action. Notwithstanding the jury verdict, the Ontario Court of Appeal upheld his ruling. The court stated at paragraphs 7 and 8:

The Legislature has left it to Judges to determine whether the threshold has been met. This will often overlap a jury's considerations; and particularly where the symptoms are subjective.

Nowhere does the legislature say that the Judge is bound to consider the jury verdict much less that the Judge is bound by any implied finding of credibility of the jury. By the same token the legislation does not suggest that a Trial Judge cannot, in the exercise of judicial discretion, consider the verdict of the jury. The legislation is clear: the Judge must decide the threshold motion, and in doing so, the Judge is not bound by the verdict of the jury. The timing of the hearing is in the discretion of the Trial Judge.

[9] In light of the differing roles of judge and jury, the timing of the hearing of a threshold motion during a jury trial takes on some significance. If the motion is heard and decided before the jury renders its verdict, then, one might argue, the jury has labored for naught. On the other hand, if the motion is heard and decided after the jury renders its verdict, might the judge be unduly influenced by the verdict? These are not new issues. On the threshold motion argued before me both counsel submitted large volumes of authorities. A review of them reveals two contending schools of thought.

[10] As to the possibility of the judge giving undue weight to the jury’s verdict, in Chrappa v. Ohm , [1996] O.J. No. 1633 (Gen. Div.) , Lax J. thought this was a real risk, which merited hearing and deciding the threshold motion before the jury rendered its verdict. …

[11] In Dinham v. Brejkaln , 2005 46749 (ON SC) , [2005] O.J. No. 5409 (S.C.J.), Cumming J. took a different tack and voiced concern at para. 38 about how a decision by a judge on a threshold motion could undercut the work performed by the jury:

As an aside, I add that I question the utility of a regime having a judge mandated by statute to determine the so-called “threshold motion” when a six person jury has spent several days of their time as conscientious citizens hearing evidence, deliberating and arriving at a verdict late into the evening which in reality is of no effect because, unknown to the jury, a judge then makes a ruling contemporaneously which has the consequence that the entire exercise of the jurors is a waste of effort. …

[18] The danger of threshold motions after the jury has rendered its verdict is, as has been indicated in Riley J.'s decision in Parks v. Peter, the possibility of inconsistent findings of fact by the trial judge and by the jury. If a jury has been selected as the trier of fact and if we are to preserve the jury system in civil cases in this Province, in my respectful view judges must take great care in avoiding interfering with findings of fact made by the jury which are implicit in their verdicts. Where the trial judge can infer what those findings of fact were, a jury verdict should not be interfered with, directly or indirectly, unless the rigorous test for setting aside a jury's verdict is met.

[ 6 ] I agree with Brown J. that insistence on a threshold ruling obviously creates the possibility of inconsistent findings.

[ 7 ] However, I note that in Kasap v. Golden Champagne Enterprise , 2001 7964 (ON CA) , 144 OAC 369, 2001 CarswellOnt 1554, where the trial judge heard and granted a threshold motion while the jury was deliberating, and a jury returned a verdict awarding substantial damages [suggesting it had found permanent, serious impairment of an important bodily function], the Ontario Court of Appeal, in response to counsel for the plaintiff/appellant's submission that the trial judge had been obliged to rule in conformity with the finding implicit in the jury's verdict, wrote at paragraphs 5-6:

[5] Kasap’s credibility was central to both the determinations of the threshold issue and the jury’s verdict as to the award of damages. It is conceded that if Kasap was believed when he testified that the accident caused him to suffer from fibromyalgia, then the threshold for bringing an action was met. The diagnosis of fibromyalgia is based in large measure on the subjective complaints of the individual afflicted. Kasap submits that it is the exclusive province of the jury to determine the facts. As a result, he submits that the trial judge was obliged to accept that Kasap was a credible witness and to rule that the threshold had been met.

[6] The question of whether a trial judge should rule on a threshold motion made at trial has been the subject of some considerable judicial comment and divergent views by trial judges. (For decisions that favour a ruling on the motion after a jury has made its determination see: Kostiuk v. McIntyre (1997), 1997 26886 (ON CJ) , 1 C.C.L.I. (3d) 73; Duguay v. O’Neill 1996 8227 (ON SC) , (1996), 31 O.R. (3d) 22; and for decisions that favour a ruling before a jury has made its determination see: Andre v. Roque 2000 22358 (ON SC) , (2000), 48 O.R. (3d) 131 (Sup. Ct.); Chrappa v. Ohm (1996), 1 O.T.C. 248 (Gen. Div.) ; Greer v. Horton (1996), 18 O.T.C. 332 (Gen. Div.) ; McMurray v. Davies , [1996] O.J. No. 4834 (Gen. Div.) ). None of the decisions at the trial level has, however, suggested that a trial judge is bound to follow the implicit finding of the jury. At its highest, the verdict of the jury is a factor for the trial judge to consider. See Duguay v. O’Neill , supra , at p. 23.

[ 8 ] The Ontario Court of Appeal held in Kasap that the judge may but is not required to consider the jury verdict, and is not bound by its findings, express or implied.

[ 9 ] Shortly after the threshold motion was argued, counsel requested that I defer deciding the threshold motion. They advised me in mid-July 2012 that they did require a formal ruling.

[ 10 ] I have struggled with the proper role of a trial judge in deciding such a motion. I am aware that in rare circumstances, s. 108(5) of the Courts of Justice Act appears to provide jurisdiction for a trial judge to pre-empt a jury's verdict.

[ 11 ] In my view, it is generally not my role, but the Court of Appeal's, to consider whether a jury's findings should be set aside. I would not have expressed my views here but for the insistence of counsel on a ruling. Given my respect for juries generally, I would have preferred to reach a conclusion consistent with the jury's.

[ 12 ] Having heard the same evidence as the jury over several weeks of trial, unfortunately I do not and cannot agree with their apparent conclusions on the seriousness of her impairment. In my view, the Plaintiff has met the onus of proving on a balance of probabilities that as a result of the accident of February 3, 2005, she suffered a serious, permanent impairment of an important physical and psychological function. She is continuing to suffer psychological and physical impairments and will likely continue to do so over the balance of her life. While she is capable of working part-time, she will be permanently disabled from working on a full-time basis. She continues to be clinically depressed as a direct result of the accident.

The Evidence

Overall

[ 13 ] The Plaintiff's case was based on the evidence of the Plaintiff, her family, her treating doctors, other treatment providers and experts, all to the effect that she has suffered and continues to suffer serious pain, headaches and psychological sequelae as a result of the accident. She gave evidence that she has always wanted to work full time at her profession. Because of her physical limitations from the accident, she retrained for less physically demanding work. She can do that less demanding work only part-time and with pain. She can do light, not heavy, housekeeping. She will need ongoing treatment.

[ 14 ] The Defendant's case was founded on the conclusions of Drs Cameron and Reznick that she was malingering, the accident provided no physical basis for her complaints and caused her no psychological impairment.

[ 15 ] I shall now review the evidence upon which I have concluded that the Plaintiff does suffer from a permanent impairment of important physical and psychological functions caused by the accident of February 3, 2005.

(continues exactly as in source)

...

Disposition

[ 193 ] The threshold motion is therefore denied.

M.A. SANDERSON J.

Released: