Court File and Parties

Court File No.: CV-14-4954 Date: 2020-02-05

Ontario Superior Court of Justice

Between:

Suthasini Arulanantham, Plaintiff Ashu Ismail, for the Plaintiff

- and -

Krista Devine, Stephen Devine, Defendants Alex J. Feldbloom and Jennifer Marquis, for the Defendants

Heard: January 30, 2020

Ruling on Motion to Exclude the Defendant from Testifying

Tzimas J.

[1] The plaintiff brought a motion to exclude the defendant from testifying at the trial, or in the alternative, to instruct the jury with respect to any improper or irrelevant inference that may be drawn from her evidence.

[2] Counsel for the plaintiff submitted that liability was admitted and that she could not see how the defendant could offer any relevant evidence on the subject of the plaintiff’s damages. Counsel went on to raise two specific concerns.

[3] First, she suggested that the defendants wanted to show photographs of the vehicles involved in the accident to show that there were no damages to the vehicles, with the implication that the accident could not have caused the plaintiff to suffer the injuries for which she complained. Counsel argued that the photographs were not relevant to damages and offered no probative value to the determination of damages. Alternatively, any probative value in the photographs would be outweighed by their prejudicial impact and more particularly the risk that the jury would engage in prohibited reasoning regarding the relationship between damages to a vehicle and the magnitude of a plaintiff’s injuries.

[4] Second, counsel submitted that the defence’s actual reason for calling the defendant driver to testify was to work in the implication that the “white” defendant was a very nice individual who would not have intended to cause the “brown” plaintiff any injury. She further suggested that the defence strategy included a deliberate attempt to sow the seeds of racial differentiation in the minds of the jury. In support of that specific contention, counsel referred to the jury selection and submitted that the defendants used their peremptory challenges to exclude certain individuals who were from racialized backgrounds.

[5] The defendants opposed the motion on the following grounds. First, they argued that causation was an element of damages and that the defendant should be permitted to speak to causation. They further submitted that the photographs of the vehicles following the collision were probative and that any risk of prohibited reasoning by the jury could be addressed or managed with a very specific instruction cautioning the jury of the permissible and impermissible inferences they might draw. Counsel put before the court Ismail v. Fleming, 2018 ONSC 6140 in support of its position and expressly highlighted the instructions that could be put to the jury with respect to the photographs at issue.

[6] With respect to the plaintiff’s suggestion of a racial undertone or a deliberate strategy to exclude “brown” people from the jury, defence counsel took very strong exception to it and expressed their profound distress at any such an implication. They denied any deliberate attempt whatsoever to engineer the jury selection with reference to peoples’ racial backgrounds. In their exercise of the allotted peremptory challenge, counsel said that they were focused on the occupation of potential jurors.

[7] In reply, counsel for the plaintiff sought to distinguish the facts of this case from Ismail v. Fleming though she conceded that a strong instruction to the jury against any prohibited reasoning would be acceptable as an alternative approach to her concern.

[8] With respect to the suggested concern of racial discrimination, and in response to very specific questions by me concerning the integrity of the trial two weeks into it and the depth of any substantive concerns, counsel agreed that the court had shown substantial sensitivity and respect towards the plaintiff and the witnesses who testified. She also noted her pleasant surprise at how attentive the initial instructions were on the subject of peoples’ cultural backgrounds and their language skills. Counsel appeared to walk back the concern though she suggested that she may address cultural bias in her closing remarks to the jury.

[9] In the course of the submissions, I asked to see the photographs of the vehicles, only to discover that the photos were cropped and depicted only portions of the fender to the defendants’ car.

[10] I have given very serious consideration to the plaintiff’s motion and have come to the following conclusions.

[11] First, causation is relevant to damages. The plaintiff, Ms. Arulanantham testified on her immediate interaction with the defendant driver, the conversation they had, and the information they exchanged. The defendant driver was at the scene, she interacted with the plaintiff, and there is no basis for excluding her from giving any probative evidence that is relevant to damages. How the plaintiff appeared to the defendant, what they said and did and what she recalls of the collision go to relevant issues connected to causation. If the defendants wish to tender the defendant driver’s evidence of her interaction with the plaintiff for the jury’s consideration, there is no basis for its exclusion.

[12] Separate and apart from the subject of any photographs, Ms. Arulanantham already admitted to the accident being minor and she contrasted it to the subsequent accident of January 2014. She talked about how her husband took care of the repairs and admitted to the absence of a police report. This evidence was both relevant and probative to the issue of causation and damages. Having heard Ms. Arulanantham’s evidence on the accident and the immediate aftermath, although the defendant would likely be confirming Ms. Arulanantham’s testimony, if that is what the defendant would like to accomplish, I cannot see how such confirmation would be prejudicial to the plaintiff.

[13] Insofar as there might be any concerns with any delay the defendant’s testimony could cause, I do not see the basis for such a concern. The defendant’s testimony ought not to be not more than 45 to 60 minutes.

[14] Second, having seen the proposed photographs, given how they have been cropped, and since there are no photographs depicting the condition of both vehicles, they do not have any probative value and are to be excluded. My decision may have been different if the photographs depicted both vehicles immediately following the accident, such that the jury could see the full vehicles. As is, the proposed photos are useless and are to be excluded.

[15] Third, Ismail v. Fleming, has some distinguishing elements in that the court considered at some length the photographs of that accident with reference to what the various experts relied on to reach their opinions. This is not the situation in this case.

[16] That said, the case is useful for the type of instruction that could be included in my charge to the jury. I agree with Justice Leach’s observations that as a matter of common sense and common understanding the greater the force of a collision, the more likely it is that the occupants of the vehicles would be injured. I also agree with his distinction between “probabilities” and “possibilities”, such that some vehicle occupants may escape serious personal injury despite their involvement in high impact collisions that result in extensive vehicle damage, while in other instances, occupants may suffer very serious injuries despite their involvement in lower impact collisions, with little to no damage. In the absence of any expert evidence to address the relationship between the impact of a collision and the magnitude of one’s injuries, absent a specific instruction, there is a risk that the jury may engage in the prohibited reasoning that a collision with low impact ought to equate with little or no injuries. That risk can be managed with a very specific instruction as follows:

“When you consider causation, you may believe that a low impact collision ought not to result in any injuries. I caution you however, that a low impact motor vehicle accident does not necessarily negate the possibility of serious personal injury resulting from such an accident. It is possible that some vehicle occupants may escape serious personal injury despite their involvement in high impact collisions that result in extensive vehicle damage, while in other instances, occupants may suffer very serious injuries despite their involvement in lower impact collisions, with little to no damage. As you consider causation you must consider the totality of the evidence to make your findings.

[17] Fourth, on the subject of the plaintiff’s concerns over the risk of racial discrimination and any deliberate attempt by the defendants to promote consciously or unconsciously a racial dimension to the evidence, I make the following findings:

a. Concerns about cultural or unconscious bias, and / or other racial discrimination are substantive issues for which the court must be vigilant and must address when they are raised. b. In the case of the jury selection for this trial, I was not involved in that aspect of the trial and there is no motion record with an evidentiary foundation to the plaintiff’s allegation. Although it is not my intention to discount the plaintiff’s counsel and / or the plaintiff’s possible perceptions of discrimination, when I look at the composition of the jury, I see a racially mixed group. This observation puts the plaintiff’s submission in serious doubt. If the jury’s composition were truly a concern, the plaintiff and her client should have brought up those concerns immediately at the conclusion of jury selection. c. The opening instructions to the jury underscored the significance of the witnesses’ cultural backgrounds and cautioned the jury about coming to any conclusions on the basis of a witness’ background This instruction shall be repeated in my closing instructions. d. Defence counsel demonstrated cultural respect and sensitivity in the manner they cross-examined the plaintiff and those witnesses from racialized backgrounds who demonstrated some difficulties understanding the questions that were put to them.

[18] Given these findings, I see no basis for excluding the defendant from testifying merely out of a suggestion that the jury would be inclined to prefer the evidence of the “white” defendant over the evidence of the “brown” plaintiff, to use the plaintiff’s counsel identifiers. In the absence of a specific evidentiary record to support such an allegation and given my preceding observations it would be unfair and unjust to make such a finding.

[19] Having come to this conclusion, it is without prejudice to the plaintiff renewing this concern on a full evidentiary record with something more than just counsel’s suggestion of a racial undercurrent to the trial. I said in my remarks to the parties at the conclusion of their submissions that if there are persisting concerns that would stand to taint the remainder of this trial and put the ultimate outcome in doubt, it is essential to address them without any further delay. The parties shall understand that if there is a finding of such a problem, the remedy could include the declaration of a mistrial. Accordingly, I will require confirmation from the plaintiff of her position prior to the trial’s resumption on Thursday, February 6, 2020.

[20] On the basis of the above, the plaintiff’s motion is dismissed. The defendant may testify with the understanding that the photos shown to me have no probative value and will be excluded from the evidence and that the jury will be instructed on the risks of prohibited reasoning, as laid out above.

Tzimas J. Released: February 5, 2020