Court File and Parties

COURT FILE NO.: 4522/11 DATE: 2018/11/13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LOUDIA ISMAIL, Plaintiff AND: MEAGHEN FLEMING and LAURIE FLEMING, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: Karl Arvai and Louis Crowley, for the Plaintiff Brian Foster and Catherine A. McIntosh, for the Defendants

HEARD: October 2-3, 2018

Endorsement

Plaintiff’s motion to strike jury notice

Introduction

[1] The plaintiff in this personal injury action claims substantial damages said to have resulted from a 2009 motor vehicle accident, in respect of which liability has been admitted.

[2] In particular, the plaintiff alleges:

a. that she generally was healthy, active and fully employed for many years prior to the relevant accident;

b. that the accident caused her to sustain soft tissue injuries that in turn evolved into chronic pain, (e.g., headaches, neck and shoulder pain, and pain radiating down her left arm into her hand), as well as chronic pain syndrome;

c. that her persistent and recurring chronic pain, and associated conditions of depression, sleep disruption, fatigue, and cognitive difficulties, (e.g., problems with memory and concentration), eventually rendered her incapable of continued employment with her former employer or any other employer, and substantially interfered with her other activities of daily living; and

d. that she accordingly has substantial claims for general damages, (relating to her pain and suffering, and lost enjoyment of life), future care costs, (including the cost of necessary ongoing assistance with housekeeping and home care maintenance), and future income loss.

[3] The defendants dispute the plaintiff’s assertion that she has been disabled by any accident-related injuries; e.g., emphasizing a suggested lack of objective findings to support ongoing injury and disability, and questioning the credibility and/or accuracy of the plaintiff’s various subjective complaints.

[4] The defendants also challenge the quantum of damages sought by the plaintiff; e.g., by alleging that the plaintiff has failed to engage in appropriate mitigation of damages. In that regard, the defendants emphasize, in particular, the plaintiff’s failure, (after working six months following the underlying accident), to attempt any further return to work with her former employer, (which had confirmed a willingness to provide accommodations), or any other form of employment.

[5] The matter recently was the subject of a lengthy civil jury trial, over which I presided.

[6] That trial commenced with jury selection on October 1, 2018. For reasons set forth in a separate endorsement, [1] it unfortunately ended with my declaration of a mistrial on October 31, 2018.

[7] At the outset of trial, members of the jury were excused for a time to permit argument and adjudication of five preliminary motions and objections raised by the parties. The issues raised therein required resolution prior to counsel making their opening addresses to the jury, and/or prior to the presentation of any evidence.

[8] The various preliminary motions included one brought by the plaintiff, pursuant to Rule 47.02(2) of the Rules of Civil Procedure and s.108(3) of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, for an order striking out the jury notice filed by the defendants.

[9] The various preliminary motions and objections were the subject of extended argument on October 2 and 3, 2018.

[10] Not wishing to delay return of the jury or progress of the trial any further, I communicated my corresponding substantive rulings to counsel via email, in the early morning hours of October 4, 2018, “for reasons to follow”.

[11] In relation to the plaintiff’s motion for an order striking the jury notice herein, I made the following ruling, for reasons to follow: “The motion is dismissed, without prejudice to the plaintiff’s ability to make a renewed or similar motion during the course of the trial.”

[12] This endorsement provides my promised reasons for that ruling.

General principles

[13] General principles and considerations governing such determinations were either acknowledged or not seriously disputed, and in my view include the following:

Except where the matter comes within the list of exclusions prescribed by s.108 of the Courts of Justice Act or another statute, a party to an action may require that the issues of fact be tried or that the damages be assessed, or both, by a jury. [2]
It has long been recognized that the right to a jury trial is a substantive one of great importance, and that a party may be deprived of that right only for cogent and compelling reasons and/or “just cause”. [3]
The right to a civil trial by jury is not absolute, however. In particular, it is not a right conferred or guaranteed by the Canadian Charter of Rights and Freedoms, and the Court’s power to order that issues of fact be tried and/or damages be assessed without a jury is expressly confirmed by s.108(3) of the Courts of Justice Act, supra. [4] If the circumstances warrant, a trial judge therefore may dispense with the assistance of the jury. [5]
A party moving to strike a jury notice nevertheless bears a substantial onus. In particular, it must be shown that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial, which merit discharge of the jury. Ultimately, the moving party must show that justice to the litigants will be better served by discharge of the jury. [6]
The decision whether or not to dispense with a jury is a matter of judicial discretion. In many situations, that discretion may, with equal propriety, be exercised for or against discharging the jury. [7]
Complexity of a case, (with potential complexity relating not only to facts and evidence but also legal principles applicable to a case), is a proper consideration in determining whether or not a jury should be struck. For example, the relevant facts and/or law may be such that a jury could not reasonably be expected to follow the evidence properly, or apply the judge’s charge properly. However, where one draws the line as to when a particular case would be better heard by a judge sitting alone is far from an exact science. Moreover, application of the test should not diminish the important role that juries play in the administration of justice. The mere fact that a judge may have superior ability (compared to that of a jury) to comprehend, recollect, analyze and/or weigh evidence is not a sufficient reason to strike a jury notice. Furthermore, experience shows that juries are able to deal with a wide variety of cases, rendering fair and just results. A jury should be discharged only where trial by jury would present the “greatest difficulty” by virtue of the complexity of the issues or evidence. [8]
While it is true that juries decide very long and complex criminal matters, the comparison is not particularly helpful. Accused persons in criminal trials have an absolute right to be tried by a jury when charged with specified offences, even if a judge is of the view that a jury trial is not the best way to achieve justice. The same is not true for civil cases. [9]
It is reversible error for a trial judge to strike a jury notice on the basis that it would be too difficult for him or her to explain the law to the jury. Trial judges are presumed to know the law, and to be able to explain it to a jury. [10]
In some cases, it may be preferable to adopt a “wait and see” approach before deciding whether or not to discharge the jury. Experience has shown that, in many instances, the anticipated complexities of a case or other concerns do not materialize, or at least not to the extent original asserted. By “waiting and seeing”, courts are better able to protect the substantive right of the party who wants a jury trial, and to only dismiss the jury when it becomes necessary. [11] However, while adopting a “wait and see” approach may be the most prudent course to follow in many cases, it is not a rule of law. Both the Courts of Justice Act, supra, and the Rules of Civil Procedure contemplate that a judge may strike a jury notice even before a trial has begun. [12]

[14] The parties nevertheless had quite different views on the result that should follow from application of such acknowledged principles to the case at hand.

[15] I reviewed and considered the parties’ respective arguments in their entirety, and my attempt to summarize their positions and address particulars of numerous issues raised in that regard, during the course of my analysis set out below, should not suggest otherwise. In broad terms, however:

Plaintiff counsel argued that the jury notice filed by the plaintiffs should be struck on the grounds of complexity and injustice. Amongst other possible considerations in that regard, (e.g., such as the contemplated length of the trial, the number of the witnesses involved, and the need to consider and digest evidence from numerous participating experts and litigation experts), plaintiff counsel focused in particular, (albeit in various ways), on the suggested inability of a civil jury to understand and accept the reality of chronic pain, and an expectation of injustice that accordingly would flow from allowing the plaintiff’s claims to be tried by a civil jury.
Defence counsel argued that there was nothing unusual or sufficiently complex about this case to warrant a finding that the circumstances met the high standard for denying the defendants their important substantive right to trial by jury. In particular, it was emphasized that the case turned fundamentally on determinations of credibility, and that jurors are well equipped to make such credibility assessments.

Evidentiary concerns

[16] Before proceeding to outline the reasons for my substantive ruling noted above, I pause to address concerns raised by defence counsel concerning content of the affidavit filed in support of the plaintiff’s motion to strike the jury notice, and corresponding objections by defence counsel in that regard.

[17] In particular, it was submitted by defence counsel that paragraphs 26 and 31-56 inclusive of the relevant affidavit, (sworn by another lawyer practising in the law firm of plaintiff counsel), were inadmissible insofar as they were replete with inappropriate argument and legal submissions; and that the said paragraphs needed to be struck out or at least disregarded for purposes of determining the motion.

[18] In my view, the concerns expressed in that regard by defence counsel were entirely justified and correct.

[19] Applicable rules and general principles in that regard include the following:

An affidavit must be confined to the statement of facts within the personal knowledge of the deponent, or to other evidence that the deponent could give if testifying as a witness in court, except where the rules provide otherwise. [13]
An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit. [14]
Improper hearsay, argument and irrelevant information should not be contained in an affidavit. In particular, legal argument belongs in a factum or brief, and not an affidavit. Legal submissions contained in an affidavit are also superfluous, and should be struck out. [15]
Subject to specific exceptions, (including the highly regulated exception for opinion evidence provided by witnesses with demonstrated expertise who are properly qualified), opinion evidence generally is impermissible and excluded. Witnesses generally are to testify as to the facts which they perceived, not as to the inferences/opinions they drew from them. It is for the trier and not the witness to form opinions, and draw inferences and conclusions. [16] Moreover, even properly qualified experts are to provide only opinion evidence that is fair, objective and non-partisan. [17]
Violations of the rules of evidence relating to affidavits are not mere technicalities or irregularities that may be cured or waived. To the contrary, where it is clear in law that affidavit evidence is inadmissible, leaving it on the record is embarrassing and prejudicial to the fair hearing of a motion or application. Evidence tendered in violation of the rules of evidence and Rules of Civil Procedure therefore must be regarded as worthless, and should not be considered; e.g., by the court refusing to receive the affidavit, striking the relevant paragraphs from the offending affidavit, and/or by the court otherwise paying no regard to the evidence. [18]
In that regard, the court is given express authority to strike out or expunge all or part of a pleading or “other document”, (i.e., including an affidavit), on the ground that it may prejudice or delay the fair trial of an action; is scandalous, frivolous or vexatious; or is an abuse of the process of the court. [19]

[20] In my view, paragraphs 26 and 31-56 of the affidavit filed in support of the plaintiff’s motion were obviously laden with impermissible argument and opinion. Given their extensive nature, I do not intend to repeat their wording in detail here. For present purposes, suffice it to say that I thought it entirely inappropriate for the affiant to swear to such matters as:

his opinion that this matter had become a very complex case for a jury to decide;
his opinion and/or argument as to whether or not experts “essentially” agreed with each other;
his speculation about possible jury reasoning and conclusions, and argument that the plaintiff’s home unfairly would be put at risk in the event of corresponding adverse cost awards;
his contention that it would be “very difficult if not impossible” for the jury to perform certain tasks; that the jury “could easily become confused or fail to properly understand” certain evidence; that the jury’s deliberations “would not be meaningful”; that the jury would reason in a certain manner because the deponent believes “it is much easier for a juror to identify with that which is consistent with their (sic) own life experience” and “much more difficult for jurors to either identify with or to recall evidence that they do not fully and properly understand”; that this is “a very complex and difficult case for a jury to properly understand, assess and decide in a fair and just manner”; and/or that the jury accordingly would “reach a result that is unjust”; and
his identification of other specific cases and precedents which, the deponent contended, should give rise to certain specified inferences.

[21] In my view, such assertions were clearly argument and opinion, (not offered by a properly qualified expert), and therefore self-evidently inappropriate content for an affidavit. If they were to be presented to the court at all, they should have been offered by way of a factum or oral submissions – as indeed they were, when plaintiff counsel argued the motion.

[22] It was suggested by plaintiff counsel that many of the assertions in the impugned paragraphs were properly admissible pursuant to Rule 39.01(4) of the Rules of Civil Procedure, insofar as they generally and/or specifically were prefaced by the deponent saying “I verily believe” or words to similar effect; i.e., thereby indicating the deponent’s belief that the content of the relevant paragraphs was true, as well as considerations that had gone into formation of that belief.

[23] In my view, however, Rule 39.01(4) was not intended to licence the inclusion of otherwise clearly impermissible argument and opinion in affidavits by the mere insertion of such wording; i.e., effectively indicating that an affiant verily believes his arguments to be meritorious and his opinions to be valid. Believing one’s arguments and opinions to be “true” in that sense does not alter their character as arguments and opinions, which generally have no proper place in an affidavit.

[24] For the purposes of deciding the motion, I accordingly had no regard to the content of paragraphs 26 and 31-56 of the supporting affidavit as substantive evidence on the motion.

[25] In the substantive ruling I conveyed to the parties on October 4, 2018, I inadvertently failed to include a formal indication that I considered it appropriate to strike the said paragraphs from the supporting affidavit. In any event, however, I proceeded on the basis that had been done, in determining whether or not to grant the plaintiff’s motion to strike the jury notice.

Analysis

[26] Having addressed that preliminary issue concerning evidence, I turn to the substantive reasons for my dismissal of the plaintiff’s motion to strike the jury notice on the ground of complexity.

[27] In that regard, I start by noting that I am mindful of the reality that application of the general principles set out above is inherently a case specific exercise; i.e., that the relative complexity of any particular matter will depend on the combined effect of facts, issues and evidence that will rarely if ever be replicated in their entirety from case to case.

[28] However, authorities in this area obviously provide helpful guidance and points of comparison, and it seemed to me that this case lacked many of the complexities present in other cases where retention of a jury was questioned. For example:

a. This was not a case involving multiple injured plaintiffs claiming in relation to a single accident, nor a case involving a single injured plaintiff involved in multiple accidents before and/or after the accident giving rise to the action. This was a case of one injured plaintiff, alleged to have sustained her injuries in one specified motor vehicle accident, seeking damages from one specified tortfeasor; i.e., the defendant driver, for whose conduct the defendant vehicle owner was responsible in law.

b. Liability for that single underlying accident was not in dispute, but formally admitted by the defendants.

c. The plaintiff in this case seemed to have no complex pre-collision medical history. To the contrary, the plaintiff apparently had very few documented pre-accident health concerns, and certainly nothing that had prevented her from maintaining constant full time employment, raising three children, looking after aging parents, attending to household activities and maintenance, and generally maintaining an active lifestyle prior to the relevant motor vehicle accident. Indeed, that appeared to be a key consideration relied upon by the plaintiff, her family doctor and other participating and litigation experts in support of their view that the plaintiff was experiencing disability caused by the accident.

d. This was not a case where claims for income loss were significantly complicated by any successive or intermittent periods of the plaintiff returning to work after the accident, either to the same pre-accident employment or in some other capacity. Rather, the plaintiff intended to argue that, despite an initial but ultimately unsuccessful attempt to maintain her pre-accident employment with the same employer, it became clear six months after the accident that the plaintiff’s accident-related injuries had rendered her completely unable to work into the foreseeable future. Moreover, matters relating to the plaintiff’s income loss claim were simplified even further by the following considerations:

i. There was no claim being advanced at trial for past income loss, as any such loss effectively had been offset almost completely by the plaintiff’s receipt of collateral benefits.

ii. The plaintiff’s claim for future income loss claim was premised on simple assumptions that Ms Ismail would have remained at her existing job, (with an employer that remained in existence), as a salaried employee, with pay increases, bonuses and employer RRSP contributions that generally would have tracked the average progress she had made in that regard over her previous years with the same employer. That in turn suggested a rather basic and straightforward future income loss calculation; e.g., compared to cases where more complicated arrangements of self-employment, or other business operation, require consideration of many more assumptions and contingencies.

e. Although the defendants intended to challenge the plaintiff’s assertions of accident-related disability by calling certain defence litigation experts, (e.g., a physiatrist, neurologist and psychiatrist), the defendants also apparently intended to call no participating or litigation experts of their own to contradict anticipated testimony from other participating and litigation experts, to be called by the plaintiff, in other fields of expertise such as physiotherapy, occupational therapy, life care planning and present valuation of future income loss and future care costs. In that regard, the defendants apparently were content to confine themselves to cross-examination questioning and/or challenging the evidence, assumptions and/or opinions offered by such other experts.

f. There appeared to be no serious dispute or likely disagreement regarding the quantification and/or deductibility of collateral benefits.

[29] Nor was I persuaded that the mere length of the anticipated trial, (i.e., five weeks according to the trial duration estimate provided by plaintiff counsel, and five weeks and 1-2 additional days according to the trial duration estimate provided by defence counsel), was sufficient to presume complexity justifying a striking of the defendants’ jury notice, despite the number of lay, participating expert, and litigation expert witnesses that were anticipated – including experts in orthopaedic surgery, neurology, physical and rehabilitative medicine, psychiatry, psychology, occupational therapy, life care planning, and present valuation of future income loss and future care costs. In that regard:

I note that our Court of Appeal has regarded a case with a “conservative” trial duration estimate of six weeks, involving disputed expert evidence with respect to liability, and no less than 18-20 anticipated medical witnesses, (generating “lengthy and complicated” expert reports from plastic surgeons, orthopaedic surgeons, psychiatrists, psychologists and rehabilitation and clinical neuropsychologists), as falling “at the low end of the complexity scale that would permit a judge to dispense with a jury”. [20]
I personally have presided over civil jury proceedings longer than the trial duration estimates provided by counsel in this case, involving presentation of evidence from numerous lay witnesses, a multitude of experts, (many of whom presented somewhat unusual and complicated science), and many corresponding issues for resolution. The jurors therein proved themselves not only quite capable of following the trial, understanding and remembering extended evidence, and coming to sensible conclusions, but also capable of identifying important factual considerations and explanations – grounded in the evidence - that frankly had escaped the attention of teams of lawyers who had litigating the dispute for over a decade, as well as myself. [21]
In my view, the supposed inability of jurors to follow, understand and remember extended evidence is greatly diminished by the combined effect of individual note-taking, provision of individual reference copies of documentary exhibits which jurors can individually mark and annotate, juror ability to review original exhibits (including video recordings) in the jury room, closing submissions of counsel highlighting what the parties consider to be the most relevant and important evidence, and a detailed jury charge. All such steps were contemplated in this case – and many were taken before the declaration of mistrial.

[30] The suggested complexity principally relied upon by plaintiff counsel, in their efforts to strike the jury notice in this case, focused in various ways on the supposed inability of juries to accept, understand and/or identify with the reality of chronic pain, which in turn was said to render the jury incapable of considering and weighing the evidence appropriately, in a judicial manner, and arriving at a just verdict.

[31] I will not attempt to replicate plaintiff counsel’s very extended arguments in that regard, but they included a number of recurrent themes. For example:

It repeatedly was suggested that the very nature of chronic pain is counter-intuitive, illogical and contrary to common sense; e.g., insofar as it involves situations of continued pain sensation in the absence of indications of objective injury, or after the healing of such objective injuries. It was said, in turn, that application of common sense by the jurors accordingly would lead them to reject the existence of debilitating chronic pain, as alleged by the plaintiff.
Insofar as chronic pain differs fundamentally from situations of “acute pain”, (i.e., pain emanating from objective injuries until the healing of such injuries is complete, after which the injured person usually is left with no continuing symptoms, impairments or disability), with which jurors were likely to be more familiar, it was said that the jurors would be incapable of fairly identifying with the plaintiff’s condition, in turn making them inclined to reject its existence and the plaintiff’s ongoing assertions of related disability.
It was said that jurors incapable of understanding or identifying with chronic pain would be inclined to view the plaintiff’s complaints of chronic pain and related complications with suspicion, and misunderstand or misinterpret such complaints, in the absence of ongoing objective injuries, as malingering or disingenuous exaggeration – as suggested by a number of the defendants’ litigation experts.
Conversely, it was said that inability to understand or identify with chronic pain would make the jurors overly skeptical of plaintiff expert assessments accepting that the plaintiff was experiencing genuine chronic pain and chronic pain syndrome, with the many difficulties and complications commonly associated with such a condition. In other words, faced with a divergence of plaintiff and defence expert opinion, it was said that jurors inevitably and unjustly would side with the opinion more closely aligned with their lay understanding and familiarity with acute pain conditions.

[32] For all such reasons, it was said that the prospects of a fair trial inevitably would be compromised, in asking a civil jury to decide such a case, and that justice to the litigants accordingly would be better served by discharge of the jury.

[33] The submissions of plaintiff counsel obviously were focused on striking the jury notice in this particular case, but in my view they were largely capable of application to any motor civil litigation involving plaintiff assertions of resulting chronic pain and chronic pain syndrome.

[34] In other words, the submissions of plaintiff counsel seemed tantamount to a more general assertion that the civil jury system was inherently incapable of producing a just result in relation to cases involving plaintiffs claiming damages based on assertions of chronic pain and chronic pain syndrome.

[35] I disagreed with the views advanced by plaintiff counsel for numerous reasons.

[36] To begin with, I thought many of plaintiff counsel’s submissions relating to the above themes essentially but improperly conflated having to prove that this particular plaintiff really suffers from chronic pain with having to prove that chronic pain is a real condition.

[37] While establishing the reality of chronic pain previously may have presented distinct challenges and complexities, in my view those difficulties have been negated largely or entirely by the Supreme Court of Canada’s decision in Nova Scotia (W.S.B.) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, which found and declared, inter alia, that:

chronic pain, although lacking any authoritative definition, is generally considered to be pain that persists beyond normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury, under current medical techniques;
the disability chronic pain patients experience is real, despite the aforesaid lack of objective findings;
while there currently is no clear explanation for chronic pain, research of the nervous system suggests it may result from pathological changes in the nervous mechanisms that result in pain continuing, and non-painful stimuli being perceived as painful;
it is believed such changes may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event; and
despite the reality of chronic pain, impairment from a condition that cannot be supported by objective findings has resulted in chronic pain sufferers unfairly being subjected to persistent suspicions, (e.g., on the part of employers, physicians and those determining entitlement to compensation), that chronic pain sufferers are malingering.

[38] In my view, plaintiff counsel’s repeated contention that jurors cannot be made to understand and appreciate the above fundamentals of chronic pain outlined by the Supreme Court of Canada essentially implied that the jury notice should be struck on the basis of a supposed difficulty or inability of a trial judge to provide proper and adequate instructions to the jury in that regard.

[39] As noted above, that is not the law. To the contrary, trial judges are presumed to know the law and have the ability to explain it to a jury. [22]

[40] In my view, once the above realities are brought home to a jury through proper instructions from a trial judge, the issues to be decided by a jury in a chronic pain case such as this are far less complex than those suggested by plaintiff counsel. In particular, the jury does not have to decide whether or not chronic pain is real, but whether or not this particular plaintiff really suffers from chronic pain.

[41] That latter determination usually lies at the heart of any claim for damages based on allegations of debilitating chronic pain not resolved before trial, and inherently focuses on whether a particular claimant is actually experiencing pain in the absence of objective findings.

[42] While it clearly would be unjust to assume that all such plaintiffs alleging chronic pain or chronic pain syndrome are malingering, (given the lack of objective findings associated with such conditions), in my view it would be equally unjust to assume that all claims of chronic pain faced by defendants are genuine. The latter approach obviously would make recovery for chronic pain claims, inherently based on the subjective assertions of a plaintiff, a matter of pleading rather than proof.

[43] Determining the merits of a personal injury claim based on chronic pain or chronic pain syndrome, at trial, therefore usually will focus fundamentally on the credibility of the claimant.

[44] In particular, the trier of fact usually must determine whether the inherently subjective assertions of pain and corresponding limitation and disability, (repeatedly made by a particular plaintiff to health care providers, to employers, to benefit administrators and/or at trial), are genuine, honest, accurate and something that should be believed or accepted, or whether there is reason to believe that the particular plaintiff is dishonest, inaccurate and/or exaggerating.

[45] I frankly am not persuaded that a trial judge has any superior ability over members of a jury to make such fundamental credibility assessments. To the contrary, it has been said that cases turning on credibility are particularly well suited for jury determination; i.e., with six citizens judging the credibility of their compatriots. [23]

[46] In short, the science of chronic pain, (addressed and resolved for practical purposes by the Supreme Court of Canada), may be complex, But in my view, assessing the credibility of someone complaining of chronic pain and associated disability is not. Jurors are called upon to assess credibility all the time.

[47] Similarly, in my view, the fact that jurors have not personally experienced a condition does not render them incapable of understanding it, or incapable of determining if a valid claim based on such a condition has been presented and proved. Jurors routinely are called upon to make determinations of liability in relation to alleged wrongs they fortunately may never have experienced, and damages they fortunately may not have suffered. They also are called upon to do so in relation to conditions and wounds that inherently may be invisible, but are none the less real. [24]

[48] In that regard, I question in particular the assertion that jurors are incapable of grasping the possibility of very real pain, despite the absence of visible or objective indications of injury. The common experience of a headache seems likely to have brought that possibility home to most if not all jurors.

[49] Moreover, the suggestion that properly instructed juries are incapable of understanding, accepting or identifying with claims based on assertions of chronic pain resulting from a motor vehicle accident, and/or incapable of fairly awarding substantial damages when such claims are found to be credible and legitimate, is also belied by my own experience with such civil jury trials. [25]

[50] In the course of submissions, plaintiff counsel argued that recent cases supposedly had confirmed the fundamental injustice of having “chronic pain” personal injury claims determined by jury trials. In that regard, plaintiff counsel placed considerable reliance on a number of reported Superior Court “threshold” decisions; i.e., cases wherein juries awarded relatively modest levels of monetary compensation to plaintiffs involved in motor vehicle accidents, but trial judges had found - in the context of making formal “threshold” decisions, pursuant to s.267.5 of the Insurance Act, R.S.O. 1990, c.I.8 – that the plaintiffs in those cases actually had suffered permanent serious impairment of an important physical, mental or psychological function as a result of the relevant underlying accidents. [26]

[51] In my view, such reasoning is fundamentally flawed for a number of reasons already noted in my earlier endorsement dismissing the plaintiff’s motion to exclude vehicle damage evidence. [27] Without limiting the generality of the foregoing:

a. Civil juries are not obliged to give reasons for their decisions. In my view, arguments that the juries in the particular cases cited by plaintiff counsel awarded modest compensation because of supposed inability to understand chronic pain, and/or some kind of refusal to accept the reality of chronic pain, inherently involve horrendous speculation. In particular, such arguments obviously ignore equally plausible alternative explanations for the jury’s decisions; e.g., that the juries in those cases accepted that chronic pain is a very real and disabling condition, (despite the absence of objective injuries), but did not believe the subjective complaints of chronic pain by those particular plaintiffs were sincere, accurate, credible and/or attributable to the relevant underlying accidents.

b. The arguments advanced by plaintiff counsel also implicitly if not explicitly suggest that the juries “got it wrong” while the trial judges “got it right”; i.e., that the juries’ decisions to award modest damages were somehow clearly flawed and unjust because trial judges looking at the same evidence concluded that the plaintiffs in question actually had suffered permanent serious impairment of an important physical, mental or psychological function as a result of the underlying accidents. In my view, the approach suggested by such arguments is wrong and inappropriate. As I had occasion to explain at greater length in Mayer v. 1474479 Ontario Inc.: [28]

i. The overlap between matters to be considered and determined by civil juries in personal injury actions stemming from motor vehicle accidents, and matters to be considered and determined by trial judges charged with “threshold” decisions pursuant to ss.267.5(3) and 267.5(5) of the Insurance Act, supra, gives rise to the distinct possibility that the jury and judge may perceive such matters differently, and arrive at separate conclusions that appear inconsistent. That possibility is an unavoidable reality of our civil jury system and the superimposed legislative scheme now embodied in the threshold provisions of the Insurance Act, supra.

ii. However, that a jury has different perceptions of a case than a trial judge, (e.g., in their respective assessments of whether a plaintiff’s subjective complaints of pain and disability are sincere and accurate, and/or the extent to which any such injuries and loss were caused by a motor vehicle accident), does not mean that the jury’s verdict should be viewed as unreasonable.

iii. To the contrary, as the trier of fact, a jury is perfectly entitled to reach its own independent and different assessments of credibility and/or causation, based on its view of the evidence.

[52] In the course of submissions, defence counsel also placed considerable reliance on certain comments made by Justice Myers in Mandel v. Fakhim [29], which essentially were said to constitute a judicial recognition or admission that having chronic pain claims determined by jury trials was no longer just or appropriate, and instead something now used inappropriately by insurers to bring about injustice. In particular, the following passages from the endorsement of Justice Myers were emphasized:

The plaintiff claimed more than $1.2 million in general and special damages as compensation for the injuries and losses that he says he sustained as a result of the motor vehicle accident. The trial lasted 12 days. The usual experts for both sides gave the usual testimony. And the jury gave the usual verdict. The jury awarded the plaintiff just $3,000 for general damages and nothing at all for past income loss, medical care, and housekeeping costs. …

While jury trials in civil cases seem to exist in Ontario solely to keep damages awards low, in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers, the fact is that the jury system is still the law of the land.

[The comments I have emphasized by placing them in italics are those upon which plaintiff counsel in this case placed particular emphasis.]

[53] With great respect to Justice Myers, in my view the comments highlighted by plaintiff counsel do not have the significance suggested by plaintiff counsel, and I do not agree with the comments in any event.

[54] I say that for numerous reasons.

[55] First, in my view the emphasized comments by Justice Myers were clearly obiter. Justice Myers was being asked to provide a judicial ruling on the question of whether or not the injuries of the plaintiff in that case met the statutory “threshold”, established by s.267.5(5) of the Insurance Act, R.S.O. 1990, c.I.8, for pursuing certain claims in relation to those injuries. In making such determinations, a trial judge is permitted to consider a verdict reached in the matter by a jury. [30] In my view, such determinations do not invite or call for any necessary judicial determination of whether trial by jury is a just and appropriate method of adjudicating the merits of personal injury claims in Ontario. That is a matter for the Legislature and, as Justice Myers himself notes in his endorsement, the existing civil jury system remains “the law of the land”.

[56] Second, in my view the supposed purpose of civil jury trials suggested by Justice Myers, together with any corresponding suggestions of inherent injustice supposedly inflicted by the civil jury system, fly in the face of repeated indications by the Supreme Court of Canada and our own Court of Appeal that civil jury trials ensure our system of justice benefits from the “wisdom of … collective life experience”, “a healthy measure of common sense” and a “reflection of societal values” that jurors bring to trials, and that “one of the strengths of the jury system is that it keeps the law in touch with evolving realities, including financial realities”. [31] I do not think those appellate statements, emphasizing the true purpose and contributions to justice of the civil jury system, should or can be effectively dismissed as some form of sham or meaningless verbiage. To the contrary, those appellate views are binding on the judges of this court. Moreover, the wisdom and accuracy of those appellate views seems readily apparent when one considers precedents dealing with motions to strike jury notices extending decades into the past; precedents which seem to suggest periods when such motions were brought predominantly by defendants, and other periods, (including the experience of recent years), wherein such motions have been brought primarily by plaintiffs. If defendants and plaintiffs, over time, successively perceive their preferences to be out of step with current jury verdict trends, (i.e., because jurors appear to be giving expression to an outlook on underlying realities and society values not favoured at the time by defendants or plaintiffs, as the case may be), one legitimate inference is that the civil jury system is not broken but instead working as intended.

[57] Third, I do not think the comments of Justice Myers were meant to suggest that insurers were somehow cynically intent on using the jury system to work injustice, as opposed to choosing the mode of trial they thought most likely to result in true justice in particular cases. In any event, to the extent the comments of Justice Myers have been perceived to have that meaning by plaintiff counsel, I disagree with them. Appellate courts repeatedly have emphasized that trial judges should not permit counsel, in submissions to a jury, to demonize or impugn a litigant’s motives or morality, as such considerations lead to flawed and prohibited reasoning. [32] In my view, judges should not engage in any similar process or reasoning in relation to an insured defendant’s filing of a jury notice, in the absence of clear evidence to support accusations of wrongful intent.

[58] Fourth, and more generally, to the extent the comments of Justice Myers suggest that chronic pain claimants are incapable of receiving a fair and favourable verdict from a jury, (including substantial damage awards in appropriate cases, where the subjective claims of a plaintiff are found to be credible), that is not my view or experience for the reasons outlined above.

[59] For all of the above reasons, I was not persuaded that the plaintiff had met the “substantial onus” of demonstrating that there was a “cogent and compelling” reason to deprive the defendants of their “substantive right of great importance” to have this matter tried by a jury.

[60] Beyond the above considerations, my decision to dismiss the plaintiff’s motion to strike the jury notice, at the outset of trial, was buttressed by the advisability of adopting the “wait and see” approach described above; i.e., allowing the trial to proceed for a time to see whether the overwhelming complexities suggested by plaintiff counsel would materialize while protecting and preserving, in the meantime, the defendants’ substantive right to a jury trial.

Conclusion

[61] For such reasons, I decided to make the substantive ruling set forth above, dismissing the plaintiff’s motion for an order striking the jury notice, without prejudice to the plaintiff’s ability to make a renewed or similar motion during the course of the trial.

[62] Such a further or renewed motion was not made by the plaintiff prior to my declaration of a mistrial.

[63] However, based on my observations of what unfolded during the trial, I frankly would not have been inclined to strike the jury notice had there been such a further or renewed motion. Without limiting the generality of the foregoing:

a. From my perspective, apart from the questionably detailed and extended manner of its presentation, (addressed in my reasons for declaring a mistrial), there was little if anything of substance to distinguish this particular case from many if not most negligence claims routinely addressed by jury trials in this province. In particular, as the evidence unfolded, it did not appear to be very different from the kind of evidence commonly dealt with by civil juries in medical and personal injury cases.

b. To the extent testimony was provided by health care practitioners who were participating and/or litigation experts, in my view those witnesses presented their evidence in a manner that was clear and entirely comprehensible by lay persons.

c. The manner of questioning, conducted by very experienced counsel, also made the substance, focus and apparent relevance of witness evidence very easy to follow.

d. Prior to the declaration of mistrial, plaintiff counsel themselves were indicating that, to present a sufficient and persuasive case, they belatedly had come to the conclusion it was necessary to present only six of the 20-27 witnesses contemplated during successive judicial pre-trials, or six of the 18 witnesses contemplated by the draft calendar filed with the court at the outset of trial. Various suggested theories of causation and dimensions of plaintiff suffering, (such as those relating to Post Inflammatory Brain Syndrome to be described by the plaintiff’s expert neurologist, and those to be addressed by the plaintiff’s expert speech pathologist), were abandoned altogether. In other words, plaintiff counsel themselves belatedly indicated, in effect, that much of the ostensible complexity suggested at the outset of trial, (e.g., because of the number and variety of witnesses and the nature of their anticipated testimony), had fallen away during the course of the trial.

e. During the course of the trial, I regularly observed the jury to look for signs of inattention and/or confusion, and there were none. To the contrary, they appeared to be dedicated, and took their responsibilities seriously. Each one had organized his or her reference copies of the various exhibits, and immediately retrieved and opened such exhibits to relevant tab and page references being mentioned by counsel. Each of the jurors also intermittently took notes and/or added personal markings to their respective reference copies of exhibits. While it will never be known with certainty what the particular jurors in this case may have decided, had the trial proceeded to a verdict, they seemed remarkably engaged; e.g. to the point of appearing visibly moved during certain portions of the plaintiff’s testimony.

[64] In other words, the view I formed at the outset of trial in relation to this motion therefore not only remained unchanged, but was reinforced by what happened as the trial unfolded. My view was and remained that the jury, properly instructed, would have been in as good a position as I to decide the relevant factual issues based on the evidence, none of which seemed beyond the jury’s comprehension.

Justice I.F. Leach Date: November 13, 2018

Ismail v. Fleming, 2018 ONSC 6780

Case Summary

Court File and Parties

Endorsement

Plaintiff’s motion to strike jury notice

Introduction

General principles

Evidentiary concerns

Analysis

Conclusion

Cited By (2 cases)

Cornell v. Trudeau, 2024 ONSC 5343

Ismail v. Fleming, 2021 ONSC 1425

This Proceeding

Judge

Counsel

Parties

Areas of Law

Legislation 4