Tracey v. Moore et al, 2017 ONSC 7568

CITATION: Tracey v. Moore et al, 2017 ONSC 7568

NEWMARKET COURT FILE NO.: CV-09-0222-00

DATE: 20171219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Joyce Tracey Plaintiff

– and –

David Keith Moore, Christopher Davey and York Fire & Casualty Insurance Company Defendants

Andrew Kerr, for the Plaintiff

Philip Tyborski and Angela Comella, for the Defendant, York Fire & Casualty Insurance Company

HEARD: December 4, 2017

ENDORSEMENT

sutherland J.:

Overview

[1] During the jury trial, I heard a motion brought by counsel for the plaintiff concerning the failure of the plaintiff to present any evidence on the claim of past and future care costs, including medical, drug, therapy and housecleaning costs and whether these issues should be permitted to be determined by the jury.

[2] After hearing submissions, I ruled that the issues outlined above should not be presented to the jury for determination. I indicated at the time that my reasons would follow. Below are my reasons.

Position of the Parties

[3] The plaintiff concedes that no evidence has been called to determine the issues of past and future care costs, including medical, drug, and physiotherapy and housecleaning costs.[^1] The plaintiff submits that Rule 52.10 of the Rules of Civil Procedure[^2] (the Rules) governs this situation. The plaintiff argues that a “mistake” implies negligence on part of any party. A mistake, if by reasonable diligence, can be rectified. The Rule contemplates relieving a party of such a mistake. The Rule permits the court to ask the jury if on the evidence claims for past and future care costs are warranted. If the jury indicates in the affirmative, the court, judge alone, can determine the quantum at a later date, if the parties do not agree on an amount. The argument is that there is no irreparable prejudice to the defendant that could not be compensated in costs. Thus, the question of whether future care costs is warranted should be presented to the jury for determination.

[4] The defendant disagrees. The purpose of Rule 52.10 is not for the factual matrix, as argued by the plaintiff. The plaintiff had ample time and opportunity to obtain the necessary evidence to present to the jury. The plaintiff’s failure to do so cannot be rectified by Rule 52.10. The defendant will suffer irreparable prejudice. The trial will be significantly delayed. The plaintiff will have to obtain an expert report on the necessity of the past and future care costs including the amount and duration for said costs. The defendant will have to obtain its own expert report. There would be required a judge alone trial within a jury trial. The defendant filed a jury notice for a reason. The trier of fact role of the jury, on these issues, would be circumvented. Furthermore, the plaintiff does not meet the criteria for Rule 52.10, as described by the case law, and the Rule does not apply in the circumstances.

Analysis

[5] Rule 52.10(b) reads:

52(10) Where, through accident, mistake or other cause, a party fails to prove some fact or document material to the party’s case,

(b) where the case is being tried by a jury, the judge may direct the jury to find a verdict as if the fact or document had been proved, and the verdict shall take effect on proof of the fact or document afterwards as directed, and, if it is not so proved, judgment shall be granted to the opposite party, unless the judge directs otherwise.

[6] The plaintiff has directed the court to several cases that indicate the court has discretion under Rule 52.10, with jury and non-jury trials, to permit further evidence to be called after the close of a trial.[^3] The defendant directed the court to several cases as well.[^4]

[7] From my review of the case law provided, it seems to me that whether the court reopens a case is a discretionary one. The cases provided flow from a varied of factual circumstances. Some were with a jury and others were judge alone. Most of the cases dealt with a specific issue of evidence that were dealt with a judge alone. None of the cases dealt with a factual situation as is here, a jury trial were the plaintiff wants the jury to make some factual findings and the judge others.

[8] I agree with the statement of D.S. Ferguson J. in Cantlon[^5]:

[24] As I read the case law the issue of re-opening the trial is a discretionary one for the trial judge. The test in Scott v. Cook is not determinative. Indeed, my reading of these cases suggest that the test varies with the circumstances of each case, as there are many possible reasons for re-opening a hearing.

[9] In exercising that discretion, I decipher from the cases that the court may consider:

(a) whether the party requesting the re-opening acted with reasonable diligence before trial in obtaining this “new” evidence;

(b) where there will be irreparable prejudice to the opposite party;

(c) whether the “new” evidence would probably have changed the result; and

(d) even if reasonable diligence was not exercised, in exceptional circumstances, should the trial be reopened to avoid a miscarriage of justice.

[10] There is no question in this case that the evidence could have been obtained prior to trial if the plaintiff exercised reasonable diligence. There will be prejudice to the opposite party but I cannot conclude that this prejudice would be irreparable. The defendant would request and receive an adjournment with costs thrown away. The introduction may have changed the result but as it turned out, given the jury verdict after this motion was decided, it seems the “new” evidence would have made no difference in their decision.

[11] The lack of reasonable diligence in this case, in my opinion, is crucial. This is a jury trial. The plaintiff had ample opportunity to obtain the expert report and evidence required. The plaintiff, in direct examination, asked her forensic accountant expert, Mr. Sherman, the question of future care costs. His response was telling. His response was that he was not retained to make such a calculation.

[12] Accordingly, I do not find that a miscarriage of justice is present if the trial is not re-opened.

[13] In addition, this is a jury trial. A jury notice was served and filed by York Fire. To accept the submission, in my opinion, would remove from the trier of fact, the jury, the determination of the extent, duration and costs of any future care costs. This is an issue that a jury should make. It would be in conflict, in my opinion, on the purpose and role of a jury if the court adopted the submission of the plaintiff, that is, the jury determine if a future care costs claim is viable and then after hearing another mini-trial, the judge determines the extent, duration and quantum of the future care costs.

Disposition

[14] I therefore dismiss the motion of the plaintiff and order that questions of past and future care costs not be presented to the jury for deliberation and the trial not be re-opened to permit the plaintiff to lead evidence of present and future care costs.

Justice P.W. Sutherland

Released: December 19, 2017

[^1]: This is not a situation where some evidence has been called and the court needs to determine if sufficient evidence was presented to permit the applicable question to be given to the jury for deliberation, as in Day v. Haiderzadeh, 2017 ONSC 7319, or Johnston v. Walker, 2017 ONSC 3370.

[^2]: RRO 1990, Reg. 194.

[^3]: Malfara v. Vukojevic, 2014 ONSC 6604; Griffi v. Chul Lee, 2005 48316 (ONSC); Degennaro v. Oakville Trafalgar Memorial Hospital, 2011 ONCA 319; Cantlon v. The Corporation of the City of Timmins, 2006 39081 (ONSC).

[^4]: Scott v. Cook, 1970 331 (ON SC), [1970] 2 O.R. 769 (Ont. HCJ); Lo v. Ho, 2010 ONSC 662 and Johnston v. Walker, supra, footnote 1.

[^5]: Supra, footnote 3.