Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YVETTE ROBICHAUD AND SANDRA MCAULAY
Plaintiffs
– and –
KYRIAKOS CONSTANTINIDIS, SOFIA CONSTANTINIDIS AND COSECO INSURANCE COMPANY
Defendants
Joseph G. Caprara and Andra N. Preda, for the Plaintiffs
Jonathan Schwartzman and Akari Sano, for the Defendant, Sofia Constantinidis
HEARD: September 17, 2019
SCHABAS J.
Ruling on Use of Demonstratives in Opening Statement
Introduction
1The plaintiff’s counsel wish to refer to demonstrative evidence in their opening address to the jury, and to introduce demonstrative evidence in the course of this trial involving a personal injury claim arising from a motor vehicle accident.
2The demonstratives are in three categories:
Medical illustrations, largely of the spine, but some with illustrations showing needles being inserted into the spine, as well as a photo of several needles/syringes.
Charts prepared by counsel summarizing OHIP information, prescriptions and visits to health care providers involving the plaintiff for a period of time before, and for many years since, the accident in issue which occurred in November 2012.
Personal photographs showing the plaintiff’s pets, her son, and a photo of her at some point before the accident, as well as a photograph of her with her son.
3None of these demonstratives were produced in the action, but were sent to the defendant’s counsel shortly before trial.
4It was not clear at the outset of argument how much of the proposed demonstrative evidence would be referred to in the opening; however, as the argument proceeded plaintiff’s counsel advised that the medical illustrations (category 1, above) would not be referred to in the opening statement. They wish to refer to only two of the three charts in category 2, and only some of the photos. The defendant objects to any of it being used in the opening to the jury, and is likely to object to it being entered as evidence during the trial. Counsel raises, for example, concerns about authenticity, dates when photos were taken, subjective comments on the charts, and the appropriate use of the medical illustrations.
Analysis
5I agree with the general proposition that demonstrative evidence that may assist the jury in better understanding medical evidence should be encouraged. Relevant demonstrative evidence which assists juries, and judges, in understanding evidence and in simplifying what may be complicated evidence in areas that are unfamiliar can be very useful. However, demonstrative evidence must not be misleading, inaccurate or inflammatory. It must not distract or detract from the actual evidence. If the prejudicial effect of demonstrative evidence outweighs its probative value, then it should not be admitted. See: Draper v. Jacklyn (1970), 1969 CanLII 6 (SCC), 9 DLR (3d) 264 (SCC); Whitford v. Swan, [1995] OJ No. 4189.
6At this stage, I am only in a position to rule on the use of the proposed demonstratives in the plaintiff’s opening statement. The admissibility of the demonstratives must be considered in the trial, when the issues are fully before me, there is proof of the records, and a determination can be made as to whether the demonstratives will assist the jury.
7The fact that their admissibility is in question causes me to move cautiously in considering whether they should be referred to in the plaintiff’s opening. As observed by D. Wilson J. in Hoang (Litigation Guardian of) v. Vicentini, [2012] ONSC 1067 at para. 11, quoting from former United States Chief Justice Burger:
An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statement which will not or cannot be supported by proof is, if it relates to significant elements of the case, …fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching its verdict…
8In my opening remarks to the jury, I described the opening as a “roadmap” or outline of the case by each side. While the scope of an opening is up to counsel, counsel must be cautious not to get into areas that cannot be proven or put in as evidence. Otherwise the integrity of the trial, and the evidentiary process, is jeopardized.
9In my view, most of the proposed demonstratives should not be referred to in the plaintiff’s opening statement. The photos are disputed and may or may not be admitted. In any event they add little, at least at this stage. For example, counsel wishes to show the jury photographs of the plaintiff’s dog before the accident, a large rottweiler, and the two small dogs she has now, to make the point that she can no longer handle a larger dog. Photographs may well be helpful and admissible if properly proven at the trial, but as they are in issue (in part perhaps due to late disclosure), and there is little if any prejudice to the plaintiff if they cannot be referred to at this stage, I choose to err on the side of caution and not permit reference to them in the opening.
10Turning to the charts, counsel for the defendant correctly points out that the prescription summary chart contains descriptions of why a prescription was provided, which may be somewhat subjective, and on which there may be issues of proof. It is not, therefore, simply a factual chronology of all of the plaintiff’s prescriptions since 2009. Therefore, there are issues about its accuracy which cause me to agree that this chart (number 29 on the list of demonstratives) should not be referred to in the opening. Whether, in due course, the chart, or something similar, may be entered as an exhibit to assist the jury, will have to be determined as the trial unfolds.
11The Physician Chronology Chart (number 28), which lists the dates of all visits to medical professionals from 2009 to April 11, 2019, is a factual listing which can be confirmed by the plaintiff and by medical professionals, many of whom will be called. Accordingly, it may be referred to in the plaintiff’s opening to the jury. If there are issues with its completeness, that can be raised in the evidence, but I see no prejudice to referring to it when it contains admissible evidence that can be proven by the plaintiff.
Schabas J.
Released: September 17, 2019
COURT FILE NO.: CV-14-498203
DATE: 2019-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YVETTE ROBICHAUD AND SANDRA MCAULAY
Plaintiffs
– and –
KYRIAKOS CONSTANTINIDIS, SOFIA CONSTANTINIDIS AND COSECO INSURANCE COMPANY
Defendants
RULING ON USE OF DEMONSTRATIVES IN OPENING STATEMENT
Schabas J.
Released: September 17, 2019