Court File and Parties
COURT FILE NO.: CV-16-552668 DATE: 20220330 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JASMINE JARVIS, JEANETTE MARIE JARVIS, and WILLBY WATSON JARVIS, Plaintiffs AND: STACEY OLIVEIRA, JOSE M. OLIVEIRA and AIDA F. OLIVEIRA, Defendants
BEFORE: Madam Justice A. Ramsay
COUNSEL: J. Patrick Brown and Nick Todorovic, for the Plaintiff R. Donald Rollo and Symone Marlowe, for the Defendant
HEARD: March 29, 2022
Ruling
[1] The plaintiffs bring this motion, prior to making an opening, to determine whether certain demonstrative evidence may be referred to in the Plaintiff’s Opening Address to the Jury.
[2] This action involves a pedestrian motor vehicle accident. The plaintiff, Jasmine Jarvis, sustained serious injuries, including a head injury in the accident.
[3] The parties have settled the issue of damages. This is a trial on liability only.
[4] Ms. Jarvis has no recollection of the accident.
[5] The parties have agreed that certain photographs contained in the Joint Document Brief, on which the parties have achieved an agreement, may be referred to in the plaintiff’s opening. The defendants take no issue with certain Diagrams of the scene.
[6] The defendants do object to a photo of the side of Ms. Jarvis’ shaved head, apparently taken after her surgery, with a crescent like scar, with staples running from the length of her skull from the right frontal region of her head curving downwards to just below her right ear.
[7] The defendants also object to a pre-operative Axial View CT Scan of Ms. Jarvis’ head taken on August 30, 2014.
[8] In Whitford v. Swan, [1995] O.J. No. 4189 (Ont. Gen. Div.) Logan J. articulated a four-part test to evaluate whether demonstrative aids may be used in an opening address, which is now the seminal case on this issue. The court must consider the following:
i. will counsel using or proposing to use the demonstrative aid, undertake to prove it? ii. Is it relevant to the case? iii. Is it likely to assist the trier of fact in understanding the case? iv. Is there anything unusually prejudicial about the demonstrative aid that would require it to be excluded?
[9] As for the first part of the test, the plaintiff has undertaken to call a doctor to prove the x-ray and the plaintiff to prove the photo, the latter taken on June 15, 2015.
[10] Counsel for the defendants argue that the photo and the CT-Scan are not relevant because liability because liability is the sole issue, damages having been settled. At paragraph 5 their statement of defence, the defendants plead that the accident was or contributed to by the negligence of the plaintiff, and a number of items of negligence are set out on the part of the plaintiff. There appears to be no dispute that Ms. Jarvis does not recall the accident so the photo and the CT scan may be relevant to the issue of liability.
[11] The third part of the test is whether the demonstrative aid will assist the trier of fact in understanding the case. Counsel for the plaintiffs submits that Ms. Jarvis’ head injury may provide an explanation to the jury as to why she is not able to remember the accident. Although this is a liability trial, I accept that the ultimate trier of the facts, the jury, may require some explanation from the plaintiff as to why she has no recollection of the accident.
[12] Demonstrative evidence may be relevant if it tends to clarify an issue in dispute.
[13] At first blush, both the photo and the CT scan may, in the circumstances, be relevant with respect to the issue of liability. To the extent that the plaintiff has problems with her memory they may tend to clarify or make probable the existence of that fact.
[14] The defendants also argue that the demonstrative aids are prejudicial to the defendants. Counsel for the plaintiff has undertaken to prove the demonstrative evidence. In Draper v. Jacklyn, [1970] S.C.R. 92, the Supreme Court noted that demonstrative evidence is admissible if i) it is relevant to the issues in dispute; ii) authentic, accurate and reliable, and (iii) its probative value outweighs any prejudicial effect.
[15] With respect to the photo, the plaintiff may refer to the photo of the plaintiff in their opening address to the jury only if the plaintiff undertakes to prove the demonstrative aids at trial.
[16] Demonstrative evidence must be authentic, accurate and reliable: Gordon D. Cudmore, Civil Evidence Handbook, (Toronto: Carswell, 1987) at 18-2.2 – 18.8.1; Draper, supra. As for the CT scan, the plaintiffs may not refer to the CT-Scan in the opening address, and the issue of its admissibility may be revisited for another day.
[17] There is no indication on the document as to which doctor interpreted the scan. The CT scan contains commentary and description, for example: The description on the scan indicates as follows: “Depressed and Comminuted Skull Fractures; Intracranial Air; Right Inferior Frontal Lobe Hemorrhagic Contusion; Right Subdural Hematoma; Midline Shift Towards Left”. There is red colouring on the left side of the scan in the area where there is a description of “Air, Subdural hematoma and fractures”. There are notations on the scan which have nothing to do with the actual scan, the most notably being reference to the “Midline Shift, with what looks like spaced perforated white lines, spaced perforated red lines and red arrows pointing to the right.
[18] Damages being already admitted, in my view, the narrative on the CT scan as well as the embellishments would be prejudicial if shown to a jury. The CT scan has little probative value as damages has been admitted. The probative value of the CT scan is not outweighed by its prejudicial effect.
[19] The photo of the plaintiff is not prejudicial to the defendant, and even if it were, the probative value is outweighed by its prejudicial effect.
A. Ramsay J. Date: March 30, 2022
- Oral ruling was updated on March 30, 2022
