COURT FILE NO.: CV-14-504561
DATE: 20220718
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALISON BRAKS
Plaintiff
– and –
DUNDEAL CANADA (GP) INC., DUNDEE REALTY MANAGEMENT CORP. and DUNDEE REALTY MANAGEMENT INC.
Defendants
Alan Preyra and Joel P. McCoy, for the Plaintiff
Rovena Hajderi and Nabil Mahmood, for the Defendants
HEARD: October 27 and 29, 2021
a.p. ramsay j.
[1] The trial in this matter commenced on September 28, 2021, with a jury. It ought to have been a straightforward occupier’s liability case with causation possibly on the table. At the conclusion of the defendants’ closing address, the plaintiff moved for an order discharging the jury and trial by judge alone. At various points during the trial, the plaintiff had warned that the matter was edging into mistrial territory. I granted the plaintiff’s motion to avoid a miscarriage of justice and concluded the trial, judge alone, on November 1, 2021.
A. OVERVIEW
[2] On May 25, 2012, the plaintiff, Alison Braks, slipped and fell on the defendants’ premises and alleges that as a result, she sustained a concussion and various soft tissue injuries. Her complaints included headaches, migraines, neck pain (radiating to other parts of her body), pain in her upper arms, issues with her eyes, among other symptoms. She was diagnosed with a concussion, post-concussive symptoms, post-traumatic migraines, and chronic neck pain from the fall. She was later diagnosed with temporomandibular joint pain, idiopathic intracranial hypertension, and depression. The defendants contested liability and damages and argued that the plaintiff’s complaints were unrelated to the fall.
[3] At the trial, the parties had no joint document brief. As there was no agreement on any of the documents, the plaintiff called a serious of witnesses to prove documents were business records in accordance with s. 35 of the Evidence Act, R.S.O. 1990, c. E. 23 [Evidence Act]. The parties were put on notice from the outset as to the limitation being placed on statements in documents filed as business records. The parties could not agree on the filing of reports by health care practitioners and were also put on notice of the limitations placed on reports with diagnoses and opinions included in those records, absent any agreement.
[4] From the defendants’ opening statement, it was evident that a key part of its defence on liability and damages, and a basis for challenging the plaintiff’s credibility, hinged on an alleged oral statement said to be in the plaintiff’s own words, in an incident report completed by the defendants’ agent shortly after the fall. The incident report was completed by Barbara Haig (“Haig”) who did not appear initially on the defendants’ witness list. After being placed on notice by the court of the potential issues with the evidence, the defendants decided to call Haig. Throughout the trial, the defendants were reminded of the need for procedural fairness, specifically, the rule in Browne v. Dunn. The parties were also cautioned at various points during the trial of the limitations of oral statements attributable to the plaintiff contained in business records.
[5] In the defendants’ opening address to the jury, counsel for the defendants made it clear that credibility was a cornerstone of the defence. Counsel stated: Regardless of whether or not the duty of care towards the patron was fulfilled, you will have to decide on what, if any, injuries and damages Ms. Braks sustained. The plaintiff’s credibility is crucial in this case.” The concerns started with the opening, though no objection was raised at that time, and continued during the trial. On their own, some of these transgressions were capable of being corrected. The defendants’ closing address made a fair trial all but impossible.
[6] The most significant transgressions in the defendants closing address is the repeated misstatement of the evidence or the unfair representation of the evidence. The intertwining of evidence not proven at trial and hearsay evidence would be difficult to unravel and would amount to painstakingly going through each of them telling the jury not what they ought to be doing, but what they ought to be avoiding. The cumulative effect of the offending statements in the closing address all but guaranteed that not only the perception of a fair trial, but the likelihood of a fair trial for the plaintiff, was out of bounds. Coupled with what had gone before, the only recourse after a four-week trial, was a trial by judge alone.
B. POSITION OF THE PARTIES
i. Position of the Plaintiff
[7] The plaintiff argued that the principles of fairness to the parties requires the dismissal of the jury and verdict by judge alone.
[8] The plaintiff submitted that inflammatory, emotional, irrelevant, and hearsay comments expressed in the defendants’ closing submissions and repeated throughout the trial were egregious and incapable of repair. The plaintiff argued that the improper comments varied between misdirection, misstatement of evidence, invitation to accept unproven and hearsay evidence, and the suggestion that determination on the evidence could be supplanted by personal experience and common sense. The plaintiff argued that the transgressions were of such severity that there was a real risk that the jury would be incapable of performing its task and the transgressions could not be repaired with a correcting charge.
[9] Counsel for the plaintiff indicated that to further raise the issues in the charge would only serve to draw more attention to them and have the effect of telling the jury not what to think but rather, what to think about. He argued that the misconduct of defence counsel arose several times during the trial itself and in the presence of the jury. The first was defence counsel expressing her own opinion and diagnosis on the record after an objection. The second was suggesting the plaintiff’s injuries were related to multiple sclerosis (MS). The third was repeatedly making Dr. Giles’ diagnosis a central issue in questioning, undertaking to call Dr. Giles as a witness and then failing to do so, the effect of which was to suggest a report was authoritative and failing to prove the truth of its contents. These three issues, counsel submitted, further add to the cumulative effect caused by the defendants’ improper submissions in their close.
[10] The plaintiff summarized some of the concerns raised by the defendants’ closing submissions as follows:
i. Instructing the jury to use something other than the evidence before them to decide this case, to use their own experience to personalize their decisions in this case, and to accept defence counsel’s own opinion of the case.
ii. Instructing the jury to find that there were reasonable steps taken to ensure that the plaintiff was reasonably safe while on the premises when no evidence was led on that issue.
iii. Misstating both the law and evidence on contributory negligence and relying on unproven hearsay to do so. The statements contained within the incident report were never properly proven and did not comply with the rule in Browne v. Dunn.
iv. Implying that the findings of Dr. Giles are admissible and authoritative despite being unproven. Throughout the trial, the defendants repeatedly offered Dr. Giles evidence as authoritative on the issue that the plaintiff’s concussion had resolved, despite clear medical evidence to the contrary. When challenged, defence counsel undertook to call Dr. Giles to testify and, without explanation, failed to do so. The cumulative effect of this is dire.
v. Despite a warning from the court on the issue of the plaintiff’s father’s migraines, they were again put to the jury in the close to suggest both causation for the migraines and lack of credibility of the plaintiff. The comments have the effect of confusing and misdirecting the jury on these issues.
vi. The defendants invited the jury to make a perverse finding of zero damages if liability is found and injuries were caused.
vii. Hearsay was replete within the defendants’ closing submissions, it was interwoven and cannot now be separated out individually. Further, the rule in Browne v. Dunn was again ignored and even the evidence that might have been touched upon was misstated.
ii. Position of the Defendants
[11] The defendants submit that the right to a jury trial is a substantive right, and relies on Cowles v. Balac, 2006 CanLII 34916 (ON CA) [Cowles]. They argue that the language in the closing address which asks the jury to “use their own life experience” and their “common sense” is similar to language used in Kempf v. Nguyen, 2015 ONCA 114 [Kempf] to emphasize the importance of the jury system. In Kempf, the Court of Appeal referred to the importance of the jurors who bring “wisdom of their collective life experience” and apply “a healthy measure of common sense” to make findings of facts.
[12] The defendants argue that the defendants and the plaintiff would be better served by a jury trial and noted the jurors had contributed over four weeks in the administration of justice. The defendants argued that should the court consider it necessary, the Jury Charge could provide the necessary corrections.
[13] In response to the plaintiff’s argument that the defendants “misdirected” the jury on the law of contributory negligence, the defendants submitted that counsel told the jury that they would have to decide whether the plaintiff took all the necessary steps to ensure her own safety and did not define a legal test and merely brought the question of contributory negligence to the jury’s attention. As for the suggestion that the defendants took all reasonable steps even though no witness was called to provide evidence as to the defendants’ system of inspection, they contended that counsel merely outlined the question that the jury would be required to answer and asked that they answer “no” to the question establishing liability as against the defendants.
[14] As for the reference to Dr. Giles, the defendants reiterated what was said during the closing, dealt with below, and disagreed with the plaintiff’s characterization of what transpired.
[15] As for the plaintiff’s father’s migraines, the defendants submitted that the plaintiff testified that her father had migraines and argued that family history is routinely part of medical records and there was no need to test the veracity of such diagnosis. The defendants submitted that this was raised only in the context of the plaintiff’s credibility and not with respect to any other issue.
iii. Order Made
[16] For the reasons below, I determined that the jury should be struck.
C. THE LAW
i. The Right to A Civil Jury Trial
[17] In R. v. Corbett, 1988 CanLII 80 (SCC), at para. 36, Dickson C.J. commented as follows:
The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge.
[18] Pursuant to s. 108(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, a party in a civil action may require that the issues of fact be tried, and the damages assessed, or both, by a jury, except for the enumerated exceptions in s. 108(2).
[19] Pursuant to section 108(3) of the Courts of Justice Act, on motion by a party, the court may order those issues of fact be tried or damages assessed, or both, without a jury.
[20] Rule 47.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 governs motions to strike a jury notice. Subrule 47.02(2) and (3) read as follows:
47.02(2) A motion to strike out a jury notice on the ground that the action ought to be tried without a jury shall be made to a judge.
(3) Where an order striking a jury notice is refused, the refusal does not affect the discretion of the trial judge, in a proper case, to try the action without a jury.
[21] A party’s right to a civil jury trial is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons or just cause: King v. Colonial Homes Ltd. 1956 CanLII 13 (SCC), [1956] S.C.R. 528, 4 D.L.R. (2d) 561 at para 17; Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 at 625 [Graham]; Kempf at para. 43; Cowles, at para. 36.
[22] However, the right to a civil trial by jury is not absolute: Girao v. Cunningham, 2020 ONCA 260), at para. 171 [Girao].
[23] A trial judge faced with a request to discharge a jury must decide whether justice to the parties will be better served by the discharge or retention of the jury: Cowles at para. 27; Majcenic v. Natale, 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189, 66 D.L.R. (2d) 50 (C.A.), at pp. 201-02 O.R. [Majcenic]
[24] The moving party bears the burden of persuasion and must be able to point to features in the legal or factual issues to be resolved, in the evidence, or the conduct of the trial, which merit the discharge of a jury: Majcenic, supra; Cowles, at para. 37; Graham, supra.
[25] While the right to a jury trial in a civil action is fundamental, "it is not absolute and must sometimes yield to the practicality." Girao, at para. 171.
[26] In Hunt (litigation Guardian of) v. Sutton Group Incentive Realty (2002), 2002 CanLII 45019 (ON CA), 162 O.A.C. 186, Austin J.A. stated that the onus on the moving party is “substantial”, since the right to a civil jury trial is substantive.
[27] In my view, the plaintiff met the onus in this case. There was a substantial risk of a miscarriage of justice as the fairness of the trial was put in jeopardy from the defendants’ opening submissions to the jury, events that occurred during the trial, and culminating in numerous transgressions, which, cumulatively were not capable of being cured, without distracting the jury from its primary task. To be clear, the closing address, viewed in isolation, was not capable of being cured with blunt statements to the jury about each and every transgression or offending statement, as the cumulative effect of these breaches would merely distract the jury from their sworn and proper task, which was to determine the case on admissible evidence.
[28] The case of Gutbir v University Health Network, Nicholson, 2010 ONSC 6951, relied upon by the defendants is distinguishable. In that case, the trial judge concluded that the alleged misstatements of the evidence were on insignificant matters.
[29] The defendants also rely on the Kempf, which is also distinguishable as it does not deal with a closing address, but rather whether an issue (the legal effect of a waiver), should have been allowed to go to the jury.
ii. Law relating to closing jury address
[30] The purpose of a closing address is to persuade the trier of fact and “to present each party’s case clearly and in a way that is of help to the court in the performance of its duty to decide the issues before it”: see Linda S. Abrams and Kevin P. McGuinness, Canadian Civil Procedure Law (Markham: LexisNexis, 2008) at 932; R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 104.
[31] The court affords a great deal of latitude to counsel to enable counsel to advance the client’s cause fearlessly and with vigour: Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767 (C.A.), at paras. 76-77 [Landolfi].
[32] There are, however, limits on the bounds of a closing jury address to ensure that the jury is not distracted from its task of deciding the case on the evidence and to ensure that neither the appearance nor the reality of trial fairness is undermined (Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), at paras. 15-16).
[33] Author Geoffrey D.E. Adair, On Trial: Advocacy Skills Law and Practice (Toronto: Butterworths, 1992), at p. 306-307 addresses the propriety of a closing address thus:
[T]he propriety of the closing address is largely a matter of discretion to be decided upon by the trial judge having regard not only to exactly what was said, but also to the tone and surrounding content, as well as the entire proceedings at trial. The discretion is to be exercised, not on the basis of whether counsel has used impassioned language or appealed to the emotions of the jury by, for example asking them to empathize with the plaintiff who has lost a leg, but rather on the basis of whether or not counsel has resorted to language or suggestion which steers the jury away from the proper path of deciding the case on the evidence and invites them to give consideration to improper material or to approach the matter on a wholly erroneous basis (emphasis added).
[34] Adair provides a useful summary of boundaries of the closing address starting at page 462 and following in his 2004 text.[^1] Some of the rules applicable to the case at hand are:
• Misstating the evidence: “It is trite to say that such evidence as is referred to by counsel must be accurately stated to the jury” (at p. 466).
• Inviting the jury to consider irrelevant matters: “This is ‘a most serious transgression’ as it tends to sway the jury from their proper task of deciding the case on the evidence (at p. 467).
• Informing the jury of factual matters not in evidence: “Any attempt by counsel to give evidence before the jury is, of course, highly inappropriate” (at p. 470).
• Unfair comment on the evidence: “Counsel must refrain from comment upon the evidence that is unfair; it is the duty of the advocate not to take unfair advantage of the evidence” (at p. 475).
[35] Brian M. Bangay, in his article “Inflammatory”, “Prejudicial” and Other Adjectives: Opening and Closing to the Jury”, The Oatley-McLeish Guide to Personal Injury Practice in Motor Vehicle Cases (Markham, LexisNexis, 2020) referring to Ferguson J.’s article, “The Law Relating to Jury Address”[^2] in the Advocates Society Journal, provides some additional rules applicable to both opening and closing addresses, which apply to this case, as follows:
• Counsel may not suggest a matter which counsel knows is not proven even if supporting evidence is adduced.
• Counsel may not give evidence.
• Counsel may not suggest that evidence does not exist or that evidence has been excluded.
• Counsel may not express personal opinions.
D. ANALYSIS
[36] A wide body of cases and authorities have established the ground rules for closing addresses, though admittedly, the rules are not exhaustive. However, it is generally accepted that in a closing address, counsel may not give their personal opinion of the case, misstate the evidence, make remarks that appeal to the jurors’ emotions, rather than their reason, or which impede the jury from an objective consideration of the evidence, and which encourage assessment based on emotion or irrelevant considerations. Counsel may argue the client’s position forcefully and with passion and may comment on the evidence. Remarks made to the jury must be supported by the evidence. Counsel may not misstate the evidence at trial. The last mentioned has been noted to be a most serious transgression of the rules.
[37] In considering whether to discharge the jury, I considered not only the challenges enumerated by the plaintiff, but also the basket of clause of concerns which the plaintiff urged the court to consider which had occurred over the course of the trial. Below are some of the concerns which rose to the top in the weighing of whether the plaintiff would have a fair trial, and whether the interest of justice required discharging the jury.
i. Inviting the jury to use their own life experience and common sense
[38] Counsel for the defendants stated during the closing submission:
You, as the jury, are the triers of the fact, and it will be up to you to weigh the evidence and decide what the facts of this case are. As you consider these issues, you will use your own life experience and your own common sense in answering the questions that will be asked of you.
[39] I did not perceive counsel for the defendants suggesting to the jury that they use their “common sense” in their fact-finding task as inflammatory. Statements which invite the jury to act on emotion or on a subjective basis have been found to meet the definition: John A. Olah in his book, “The Art and Science of Advocacy” (Toronto: Carswell, 2004), at 8-8; Stewart v. Speer, 1953 CanLII 153 (ON CA), [1953] O.J. No. 669, [1954] O.R. 502 at 509 (C.A.). Appeals by counsel to the jurors to use their common sense are rather commonplace and in my opening speech to the jury, they were told that they should use their common sense in carrying out their tasks. I expect this direction would have been repeated in charging them.
[40] However, remarks to the jury inviting them to use “their own life experience” may be akin to inviting the jury to consider matters beyond the evidence and, arguably, may be on par with asking the jury to step into the shoes of the party, or their family or the community, and would therefore be improper. The jury is to decide the case on the evidence. However, this transgression was capable of being corrected.
ii. Instructing the jury to find there was reasonable steps taken by the defendants when there was no evidence
[41] In my view, this was also capable of being corrected in the charge. The defendants led no evidence to show they discharged their positive duty imposed upon them under s. 3(1) of the Occupiers Liability Act, RSO 1990, c. O.2. That is, there was no evidence to establish that they took such care, as in all the circumstances of the case is reasonable, to ensure that the plaintiff/patrons were reasonably safe while on the premises. This could have been dealt with in the charge.
iii. Misstating both the law and evidence on contributory negligence and relying on unproven hearsay to do so
[42] Counsel is permitted to tell the jury the principles of law applicable to the case insofar as it is necessary to do so to make clear what the defence which governs the case is: R. v. Cashin, 1981 CanLII 3229 (NS CA). In general, this should be accompanied by advising the jury that they are to follow the law provided by the trial judge. It goes without saying that the relevant principle of law provided to the jury by counsel must be correct. Counsel for the plaintiff argues that counsel for the defendants misstated both the law and evidence on contributory negligence and relied on unproven hearsay evidence to do so.
[43] The defendants relied on information contained in an incident report completed by a witness, Barbara Haig, shortly after the fall. The report is said to contain a description of the incident in the plaintiff’s “own words”. It was evident from the prominent role it placed in the defendants’ opening address that the document and the statement, said to be attributable to the plaintiff, were central to the defendants’ defence. Counsel for the defendants stated in the opening address that:
“Ms. Braks heated up her lunch and took the elevator to the second floor, an area where people gathered for lunch, and “when she stepped out of the elevator, she turned her ankle and fell. Ms. Braks noted that the floor was wet. Shortly after the fall, Dundeal filled out an incident report. You will hear evidence that it describes the incident in Ms. Braks’ words. She stated that the floor was greasy to the touch (emphasis added).”
[44] In the defendants closing address to the jury, counsel for the defendants stated:
Let me start with liability. The details regarding the slip and fall were recorded in the Accident Report by Ms. Barbara Haig on behalf of the defendants. She testified in court virtually. That Accident Report shows that at the time of the fall, the plaintiff was wearing 8 to 10 cm wedge heels. She was carrying lunch. Getting out of the elevator, she slipped and fell on what she thought was grease. It will be up to you to determine whether the defendants are liable, based on the evidence you have heard to date. Also, you will have to decide, whether Ms. Braks took all the necessary steps to ensure her own safety.
[45] Contributory negligence of the plaintiff is governed by s. 3 of the Negligence Act, R.S.O. 1990, c. N.1. which provides that:
- In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.
[46] The effect of s. 3 of the Negligence Act, is that if the plaintiff is found to be contributorily negligent by the trier of fact, her claim for damages would be reduced by the degree to which she is found to be at fault or negligent. Counsel for the defendants therefore misstated the principle of law as it was not necessary for the plaintiff to take “all the necessary steps to ensure her own safety”. This, however, was capable of being corrected.
[47] However, I agree with the plaintiff that the remarks make reference to hearsay (oral statement attributable to the plaintiff made out of court) and was not put to her in cross examination in breach of the rule in Browne v. Dunn.
[48] At the trial, Haig testified that she spoke to the plaintiff and took an oral statement from her, memorialized in an incident report. Haig had worked for a security outfit, offsite, and managed the defendants’ portfolio of property. The defendants were alerted early on about the restriction on the use of the incident report and added Haig to their witness list. Haig was asked questions about speaking with the plaintiff, the timing, and the location. The oral statement however was not put to the plaintiff during cross examination, either directly or indirectly. The extent of the cross examination of the plaintiff on her dealings with Haig was limited to questions related to whether she spoke to Haig at various points in time, until she left to see her doctor, and whether she had any recollections of speaking to Haig that day. She testified that she did not recall speaking to Haig. The statement was not put to her to refresh her memory, nor was she asked whether or not she made the statement in the incident report.
[49] The incident report completed by Haig was not entered into evidence as a business record under s. 35 of the Evidence Act, RSO 1990, c E.23. No questions were put to Haig to establish that the incident report fell within the ambit of s. 35. In fact, one of the defendants’ former employees who testified at the trial, the property manager at the time, Dean Farrugia, testified that he believes that it was after this incident that a procedure was implemented. The test to be satisfied are summarized in Slough Estates Canada Ltd. v. Federal Pioneer Ltd., 1994 CanLII 7313 (ON SC), as follows:
i. the record was made in the usual and ordinary course of business;
ii. it was in the ordinary course of the business to make such a record at or near the time of the events recorded; and
iii. if the document records a hearsay statement, both the maker of the record and the informant were acting in the usual and ordinary course of business in recording and communicating an account of an act, transaction, occurrence or event
[50] Even if the questions had been asked, and the incident report met the test under s. 35 of the Evidence Act, oral statements included in documents admitted as business records are not prima facie evidence of any act, transaction, occurrence or event described in the statement: Setak Computer Services Corp. v. Burroughs Business Machines Ltd., 1977 CanLII 1184 (ON SC), 1977 CarswellOnt 626 (Ont. H.C.), at p. 761; DeGiorgio v. DeGiorgio, 2020 ONSC 1674, at paras. 50 and 54.
[51] Similarly, opinions, conclusions or statements made by parties included in an accident report are not admissible: Woods v. Elias (1978), 1978 CanLII 1256 (ON SC), 21 O.R. (2d) 840 (Ont. Co. Ct.).
[52] As noted by Woodley J., evidence is admissible if the trier of fact is legally permitted to consider it. Evidence that the law does not permit to be considered is inadmissible, even if it is relevant and material: Parliament et al v. Conley and Park, 2019 ONSC 2951, at para. 17 [Parliament].
[53] Hearsay evidence is presumptively inadmissible as a matter of law unless it falls under a traditional exception to the hearsay rule. Hearsay evidence is admissible if it meets the tests of necessity and reliability: R. v. Bradshaw, 2017 SCC 35, [2017] 1 SCR 865; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 (S.C.C.); R.+5 v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.); R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 (S.C.C.). Whether the hearsay evidence meets the test of reliability must be established on a voir dire: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 34.
[54] In Bruno v. Dacosta, 2020 ONCA 602 [Bruno], Lauwers J.A. commented on the further constraints of s. 35 with respect to hearsay evidence contained in business records. In order for the statement to be admissible, it must be made and recorded by two people both acting in the ordinary course of business. Lauwers J.A. commented that:
A party properly invoking s. 35 of the Evidence Act is entitled to introduce certain limited forms of double hearsay contained in business records, such as statements made and recorded by two people who are each acting in the ordinary course of business, even if those statements are ultimately accorded little weight: Evidence Act, s. 35(4); Parliament et. al. v. Conley and Park, 2019 ONSC 2951, at para. 36; Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd., et. al., 1977 CanLII 1184 (ON SC), [1977] 15 O.R. (2d) 750; [1977] O.J. No. 2226, at para. 63 (emphasis added)
[55] In the Parliament decision, though the hearsay statements were contained in clinical notes and records, the procedure suggested by Woodley J. is apt. She noted, at paras. 38 and 39:
Any concern regarding the inability to test the reliability of hearsay statements will be fully satisfied at trial as the record keeper, the informant and the parties to the original conversation are all available to provide evidence at trial as witnesses. Accordingly, the jury will be in a position to observe:
a. The witnesses give their evidence under oath,
b. The witnesses’ demeanour, and
c. The witnesses be subject to cross-examination by opposing counsel.
The particular concerns otherwise raised by hearsay evidence will be satisfied. The trier of fact will be able to assess what weight, if any, is to be given to the entry that records a statement made by a person who will be seen and heard, and who will be subject to the test of cross-examination. There can be no fear that the hearsay evidence will be untested or afforded more weight than it deserves (emphasis added).
[56] The jurisprudence in Ontario has established that statements contained in police reports are not admissible under the business records: Bruno, at para. 61.
[57] In Sopinka, Lederman & Bryant, The Law of Evidence, 2nd ed, (Toronto: Butterworths, 1999), the authors state:
Unsworn statements, either oral or in writing, made out of court are often received in evidence. Such statements will be admitted if they fall within an exception to the hearsay rule. When admissible, the making of the statements must be proved by the ordinary means.
[58] Proving a statement in writing or reduced to writing, and the proving an oral statement made by a witness, are governed by ss. 20 and 21 of the Evidence Act, R.S.O. 1990, c. E.23, respectively. In the case for an oral statement, if the witness does not admit making the statement, proof may be given, but before such proof is given, counsel must advise the witness of the circumstances to designate the particular occasion when the statement was made and the witness must be asked whether they made the statement. In this case, none of those questions were put to the plaintiff.
[59] Section 21 which governs an oral statement provides that:
21 If a witness upon cross-examination as to a former statement made by him or her relative to the matter in question and inconsistent with his or her present testimony does not distinctly admit that he or she did make such statement, proof may be given that the witness did in fact make it, but before such proof is given the circumstances of the supposed statement sufficient to designate the particular occasion shall be mentioned to the witness, and the witness shall be asked whether or not he or she did make such statement.
[60] Section 21 requires that the prior statement be proved. This can be done by counsel for the adverse party putting the statement to the witness to show any inconsistency between the prior statement and the witness’s in‑court testimony. In the absence of doing so, the statement could not be admitted for the truth of its contents.
[61] A prior statement does not have to be proved through the declarant of the statement. It can be proved through the recipient of the statement: Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at 257; R. v. Khelawon, 2006 SCC 57 at para. 36 [Khelawon]. However, where the statement is tendered to prove the truth of its contents the need to test its reliability arises: Khelawon, at para. 36.
[62] And, as noted by the Supreme Court of Canada in Khelawon, at para. 37:
The traditional law of hearsay also extends to out-of-court statements made by the witness who does testify in court when that out-of-court statement is tendered to prove the truth of its contents. This extended definition of hearsay has been adopted in Canada: R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at pp. 763-64; Starr, at para. 158. It is important to understand the rationale for treating a witness’s out-of-court statements as hearsay (emphasis added).”
[63] The unfairness to the plaintiff is manifest. In her closing address, counsel for the defendants challenged the credibility of the plaintiff and invited the jury to believe Haig’s evidence over that of the plaintiff’s. Had the defendants’ complied with s. 21 of the Evidence Act, then there would be no need to consider the plaintiff’s further argument that the defendants did not comply with the rule in Browne v. Dunn[^3].
[64] The rule in Browne v. Dunn is not merely a procedural rule but a rule of trial fairness. It requires that if counsel is going to challenge the creditability of a witness by calling contradictory evidence, the witness must be given the chance to address that evidence.
[65] In Curley v. Taafe, 2019 ONCA 368, at para. 27, the Ontario Court of Appeal stated:
The rule in Browne v. Dunn creates an obligation to give a witness, called by the opposite side, an opportunity to explain evidence which the cross-examiner intends to later use to impeach the testimony or credibility of the witness. This rule was expressly adopted in Canada in Peters v. Perras (1909), 1909 CanLII 178 (SCC), 42 S.C.R. 244, [1909] S.C.J. No. 39.
[66] The application of the rule prevents a witness from being "ambushed". The Court of Appeal has noted that this does not require the cross-examiner to "slog through a witness's evidence-in-chief putting him on notice of every detail the defence does not accept": see R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 67 O.A.C. 279 (Ont. C.A.), at para. 28. Counsel need only put the nature of the proposed contradictory evidence and its significant aspects to the witness: R. v. Dexter, 2013 ONCA 744, 2013 O.N.C.A. 744, para. 18.
[67] Curley dealt with an appeal of a decision of a trial judge who found that the rule in Browne v. Dunn had been breached where a party relied upon a letter written by the respondent. The respondent admitted in that letter to having had files in her possession. The trial judge was of the view that the rule in Browne v Dunn applied as the plaintiff was not given an opportunity to respond to a particular sentence in the letter. In disagreeing that the rule applied, the Ontario Court of Appeal noted that counsel for the appellant had referred to the letter in her opening. The respondent was cross examined on the letter and re-read the letter during the trial to refresh her memory. The respondent admitted writing the letter and delivering it to the appellant. The respondent did not explain her statements in the letter on cross examination or re-examination about packaging "up any and all files/documents here in my office that relate to your clients" and refusing to give them to the appellant unless certain conditions were met.
[68] None of these factors exist here. Perhaps to the disadvantage of the plaintiff, I raised the issue of Browne v. Dunn at various stages of the trial. This prompted the defendants to call Haig. Counsel for the defendants however neglected to cross examine the plaintiff on the oral statement. The oral statement was hearsay being relied upon for the truth of its contents. Not only was there no compliance with the Evidence Act, but in this case, I was satisfied that the rule in Browne v. Dunn applied
[69] In R. v. Dexter, para. 19, the Ontario Court of Appeal noted that the rule is also a rule of common sense. It allows the trier of fact to observe and assess the witness when the witness is confronted with the contradictory evidence and given an opportunity to explain his or her position, the rule promotes the accuracy of the fact-finding process. In the result, this enhances public confidence in the justice system.
[70] Had the statement been put to the plaintiff, the jury would have had an opportunity to observe the plaintiff’s demeanor, make credibility findings, and accepted none, some, or all of her evidence, especially when contrasted with Haig’s evidence. Haig’s own evidence on many matters, did not add up. The fall occurred around the lunch hour. Haig testified that she was notified about the fall at around 12:30 p.m. It took her about ten minutes to get to the location where the fall occurred. She was at the site for ten to twenty minutes. She inspected the area and it looked “slightly greasy”. She made a note of it and told the property manager to clean it up. She was on site for ten to twenty minutes, and in that time managed to speak to the plaintiff, return back to her office, and completed the incident report at 1:05 p.m. after she got back. She had no recollection of seeing Farrugia and the day porter/cleaner at the scene. Photos of the day porter and Farrugia taken by the plaintiff’s boyfriend, who arrived on the scene within minutes of the fall were tendered as evidence. Some show the two inspecting the floor and cleaning it up. Haig is in none of them. Farrugia has no recollection of speaking with her. In the statement attributable to the plaintiff contained in the incident report is the reference “about 5 minutes after fall Brian cleaned up the area”. Yet Haig testified that the area was “slightly greasy” when she got there. It is also not clear how she could have told the property manager to clean up the area when the photo evidence filed as an exhibit show him on the scene shortly after the fall with the cleaner, and before she got there.
[71] The breach is serious. The defendants were relying on information in the incident report to challenge the plaintiff’s credibility, liability, damages and causation. The court had signaled to counsel the limitation on the incident report. By the time of the closing address, all the provable evidence was available for the jury to consider in deciding the case. Throughout the trial, the defendants were cautioned about the restriction of otherwise inadmissible evidence/hearsay, being admitted for the truth of the content. The defendants have provided no clear response to what I consider to be a serious breach. It would have been impractical at the end of the defendants’ closing address to recall the plaintiff to offer an explanation. In my view, the seriousness of the breach, and the transgressions from the opening statement, would render any correcting instructions hollow. The damage had been done.
[72] There are other concerns raised by the defendants’ reference to the impugned statement. It featured prominently in the opening address and was quoted from liberally. As noted in Halsbury’s Laws of England, 3rd ed., an opening statement is to be “a general notion of what will be given in evidence.” In the lead up to referring to information in the impugned statement, counsel for the defendants stated in the opening, presumably on the assumption that such evidence would be called, that: “Ms. Braks heated up her lunch and took the elevator to the second floor, an area where people gathered for lunch. When she stepped out of the elevator, she turned her ankle and fell. Ms. Braks noted that the floor was wet. Shortly after the fall, Dundeal filled out an incident report. You will hear evidence that it describes the incident in Ms. Braks’ words. She stated that the floor was greasy to the touch.”
[73] The comments suggest that it was the turning of her ankle when she stepped off the elevator that precipitated the fall. There was no evidence led on this at trial. The juxtaposition of the statement “she was carrying lunch” with “she slipped and fell on what she thought was grease” may suggest to the jury the “grease” was deposited by her lunch. Nowhere in the impugned statement does it indicate that the plaintiff slipped and fell on what she thought was grease or that she noted the floor was wet. Surely, reference to this evidence in the opening meant there were witnesses who would testify to these facts.
[74] It is a well-established that the opening address should not refer to any matter that may require proof (see: Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA) [Brochu]. The defendants’ opening address went beyond the bounds of an opening statement by mentioning matters which ultimately did not become evidence before the jury.
[75] In fact, the impugned oral statement states as follows under the heading: “Description of Accident- In Victim’s Own Words”:
Ms. Braks was coming out of elevator 4 carrying lunch to 2nd floor eating area. When she stepped out of elevator she put her foot on the granite floor and both feet went out from underneath and (sic) landed on her right side…..She didn’t hit her head but her stomache was feeling upset…She stated that the floor felt greasy to touch and there were also small spots inside the elevator as well. She said it looked like someone had possibly sprayed the rack of the elevator. About 5 minutes after the fall Brian cleaned up the area.”
[76] Another concern raised by counsel’s reference to the statement in the closing address is the reliance on other information in the report, which has its genesis in the opening address again, in challenging the plaintiff’s credibility, specifically whether she hit her head when she fell. This was a primary part of the defence. While a witnesses’ credibility ought not to be dealt with an opening address and a party should eschew arguments, both occurred in this case. Counsel for the defendants stated bluntly: “The plaintiff’s credibility is crucial in this case”. She made it clear that the incident report specifically stated that the plaintiff did not hit her head.
[77] I agree with the plaintiff that by referring to the incident report and the statement said to be in the plaintiff’s own words, since the opening address, and referring to it again in the closing address, despite the limitations on the incident report communicated to counsel at various points in the trial, the jury would be left with the impression that it was authoritative; and in my view, this would impact the jury’s assessment of the issues of liability, damages and causation. The task of disabusing the jury of what they heard about, at the end of the trial, the inadmissible evidence, would be all but impossible.
iv. Misstatement of the evidence and counsel expressing personal opinion on the evidence
[78] I next turn to the basket clause of complaints by the plaintiff with respect to misstatement of the evidence, unfair comment on the evidence and counsel expressing her personal opinion on the evidence. I start with the well understood notion espoused by the Court of Appeal in R. v. Daly (1992), 57 O.A.C. 70, at p. 76 (and R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266 , at para. 339):
A closing address is an exercise in advocacy. It is a culmination of a hard-fought adversarial proceeding. Crown counsel, like any other advocate, is entitled to advance his or her position forcefully and effectively. Juries expect that both counsel will present their positions in that manner and no doubt expect and accept a degree of rhetorical passion in that presentation.
[79] Counsel may use rhetorical questions, suggest what inferences may be drawn from the evidence, while leaving it up to the jury to make such inferences, and may comment on any aspect of the evidence. However, remarks by counsel during the closing address must be supported by the evidence: Pisani v. R., 1970 CanLII 30 (SCC), [1971] SCR 738; R. v. Khan, 1998 CanLII 4812 (BC CA).
[80] Counsel for the defendants stated during the closing submissions:
The next issue, you will be asked deal with, is Ms. Braks injuries. Whether Ms. Braks suffered a concussion as a result of the slip and fall is one issue to consider. I suggest to you, she did not. Before I refer you to the evidence on the issue, ask yourself from a commonsense perspective, if one hit their head, it has not been reported to their doctor, or if it was, would the doctors, in the course of their duty, fail to report a head injury if reported.
[81] Counsel ought not to express their own personal view. In Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), Cronk J.A. stated that it was impermissible for counsel to express their personal views. She noted that:
(“T)he expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence. See R. v. Finta (1992), 1992 CanLII 2783 (ON CA), 92 D.L.R. (4th) 1, 73 C.C.C. (3d) 65 (Ont. C.A.), affd 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701, 112 D.L.R. (4th) 513; R. v. Boucher (1954), 1954 CanLII 3 (SCC), [1955] S.C.R. 16, 20 C.R. 1; and Lubet, adapted for Canada by Sheila Block and Cynthia Tape, Modern Trial Advocacy: Canada, at pp. 426-27.
[82] Aside from that, counsel’s personal views are completely at odds with the diagnoses from all the treating doctors and experts. The family doctor, Dr. Maidment, testified that she suspected the plaintiff had sustained a concussion and referred her to a sports medicine doctor, Dr. Robert Lee, and a neurologist, Dr. Kathrine Giles. Dr. Robert Lee testified that the plaintiff had sustained a concussion and was having significant post concussive symptoms when he saw her. The defence expert, Dr. Max Kleinman, was of the view that the plaintiff suffered various soft injuries as well as possibly a concussion with the post-concussive symptomatology among other things. The defence expert, Dr. Daniel Selchen, also diagnosed soft tissue injuries at most a minimal concussion.
[83] Counsel is also suggesting by her rhetorical question that the plaintiff did not report hitting her head to her doctors. That is an unfair characterization of the evidence to be considered by the jury. The plaintiff reported hitting her head on her arm to her family doctor, Dr. Maidment, on July 25, 2012. Aside from her doctor, in the immediate aftermath of the fall, there are two witnesses at the trial who saw the plaintiff within minutes of the fall, one a former employee of the defendants, Farrugia, the other, the plaintiff’s husband. Both testified that the plaintiff told them she hit her head. Though hearsay, and one of the witnesses may be biased, there was additional evidence for the jury to consider in deciding whether the plaintiff hit her head in the fall. Counsel’s personal opinion on the matter was improper and not supported by the evidence. A well-established body of jurisprudence and authority have established that remarks made by counsel must be supported by the evidence.
[84] Another complaint by the plaintiff is that there was misdirection of the evidence. This occurred throughout the trial. The defence theory on causation is that the plaintiff’s complaints are unrelated to the fall. They maintained that the plaintiff did not report hitting her head so did not suffer a head injury. It was evident from the questions to the witnesses that this position was maintained despite the evidence of all the doctors, treating and expert alike, including the defendants’ own experts, who, when asked, agreed that a head injury is traumatic brain injury, and a concussion is a mild traumatic brain injury, and no impact to the head is necessary for a person to suffer a concussion. None of the experts, either participant expert or litigation expert, disagreed with those facts. All the medical experts, participant and litigation experts, agreed, when asked, that the plaintiff had suffered a concussion in the fall.
[85] I agree that the remarks made by counsel in the closing address was a misdirection as it unfairly represented the proven evidence that was before the jury.
[86] During closing submissions, counsel for the defendants stated:
“The family doctor records contain no reported complaints, aches and pains, no headaches arising from the fall for the period October 2013 to August 2015, and other records for that time period said nothing – yes they were reporting other events but nothing pertaining to the slip and fall for that chunk of period of time. Dr. Maidment confirmed that in her testimony (emphasis added).
[87] This part of the closing raises three concerns: i. it misstates the evidence that was before the jury; ii. it refers to “other records” which was presumable records not in evidence; iii. It mistakes the evidence of the family doctor, Dr. Maidment.
[88] Dealing with the first issue, a representative from Grandview Hospital was called to testify, and the hospital records were established to be business records and entered into evidence at the trial. Contrary to what counsel for the defendants submitted, those records, which are primarily around the time that the plaintiff was about to give birth to her son, and afterwards, do in fact say something about the complaints related to the fall. These records, entered as an exhibit to the trial, were evidence that the jury could use in its deliberation. The Grandview Hospital records include the following:
i. Pre-Anesthetic form dated June 20, 2014 - noted “Fall 2012 Neck Pain and “Fall in May 2012; Neck is sensitive to head position”.
ii. Pre-Operative Assessment form dated June 30, 2014 has a number of check marks beside certain boxes. There is a check mark beside the “Musculoskeletal” and “Other” boxes, and the document contains a handwritten annotation “neck 2012”. A check mark appears besides the heading “Neurological” and “Other” and “neck pain” is noted.
iii. Acute Pain Service Consultation form dated July 30, 2014, by attending anesthesiologist noted a past medical history of “health; neck problems after fall in 2012”; reference is made to neck pain going back to 2012.
iv. A Pre-Anesthetic Questionnaire” which appears to have a date of July 31, 2013, is included in the records. Check marks appear beside both “Yes” and “No” (the latter crossed out) for “Chronic Pain/Fibromyalgia” and includes the explanation: “May 25/12 fall and have neck pain + head pain” are noted in comments column. On that same form, also noted in the comments section for the Gastro-Intestinal/renal heading, is the following: “Due to Fall-neck pressure make me nauseated”, and yet on the same form under the “Other” row, it is noted “fall caused neck pain”.
v. The nursing notes includes references to the plaintiff experiencing dizziness. The plaintiff apparently mentioned her concussion and queried whether that was the cause of her dizziness. While the oral statement is admittedly hearsay, the jury would have been instructed on hearsay evidence in what is otherwise business records.
[89] Second, it is impermissible for counsel to refer to facts or evidence not proven at trial. The gap in the family doctor’s records occur primarily for the period of time that the plaintiff was pregnant. At the trial, she testified that she had been under the care of other physicians during her pregnancy. The obstetrician was not called to testify neither were her records filed. It is not clear what “other records” the defendants want the jury to consider in deciding the issues before them but based on the evidence at trial, they would be left to speculate and were being invited to decide the case on facts not proven at trial.
[90] Third, counsel for the defendants’ statement that “Dr. Maidment confirmed that in her testimony” is a complete misstatement of Dr. Maidment’s evidence. In her testimony in chief, Dr. Maidment indicated that the standard of care in her region required that obstetrician follow women through with their pregnancy. On cross examination, she testified that she believed there were other notes. She could not explain the lack of records but indicated that she was aware that the plaintiff had been pregnant sometime between 2013 and 2014. In fact, on re-examination of Dr. Maidment, the following exchange took place:
Q. My friend was asking you about the notes from …October 2013 to August 2015, and you seem to be believing that there may be other notes. Why do you believe that there may be other notes?
A. Because there were other notes.
Q. And why do you say there were other notes?
A. Because I have records of those notes.
[91] Therefore, the entirety of the remarks was a misstatement of the evidence and an unfair representation of the family doctor’s evidence on the matter of the gap in her records for that period of time. In my view, it was prejudicial to the plaintiff, especially as the defendants suggested that years later other issues started to “crop up”, and the defendants’ causation argument also hinges on the gap where there were supposedly no complaints.
[92] Counsel for the defendants indicated during her closing: “On December 5, 2012, Dr. Maidment testified neck pain was reported as settled.” In fact, on cross examination the family doctor was asked what that specific note said about neck pain. Her testimony was quite clear. She stated, “in the assessment, chronic neck pain settling”. That is also what the note says. The importance of the use of the word “settled” as opposed to “settling” is significant in view of the context in which the note was made. Reference to the context made it clear that there is no conceivable way that the family doctor would have been in a position to state that the neck pain had “settled”. The entry on that date makes reference to the plaintiff’s ER visit (the plaintiff testified that she was admitted to the hospital that month because of her neck pain), and in the context of a call from the physiotherapist the same day indicating “pt in so much pain all the time so can’t really treat properly…”
[93] During her closing address, counsel for the defendants told the jury: “You will also note that she has already been promoted at CRA.” In fact, this evidence was not elicited by either party in chief, cross or on re-examination of the plaintiff. When she was hired at CRA in 2016, the plaintiff’s job position as a collections officer placed her at the “SP4” level. On cross examination she stated she had the same role in 2018 and was an SP4 and SP5. Her substantive position was an SP5 in 2019, and she had an acting role in that year as an “AU1”. She was not asked whether the SP5 level was a promotion. The next series of questions related to the pay scale. The following exchange took place:
Q. There is a pay scale at CRA that you can get promoted?
A. There is pay scale at CRA that, it’s not a promotion, it is just a pay scale so, based on the current, what’s it called, there are unionized positions so I was part of, what’s called UTE, so Unionized Tax…There are two different unions so I was part of the one that was the tax collectors, so that agreement governs the pay scales, and there is another union that governs the other types of pay scales. Those were all posted, and you basically have chunks for seniority so every year that you are there, there is like a minor increase that basically keeps flush with inflation - so that, it is not promotion. The union makes sure pay scale keeps public servants, keeps you up with inflation, so it is not a promotion, no. There is no such thing as a promotion.
Q. Thank you.
[94] The question of promotion was raised a second time by counsel for the defendants in the following exchange:
Q. You can move up the ladder at CRA, meaning, get promoted?
A. In general or me?
Q. You can tell me about both. Tell me about you.
A. Currently I’m probably at the position that I am maxed out at?
Q. You are an SP5, correct?
A. The AU 1 acting role?
Q. Is there an SP5, SP6 and SP7?
A. There is yes.
[95] Since counsel for the defendants did not ask the plaintiff whether she had in fact been promoted, and given her acting role, it would have been completely acceptable for her to suggest to the jury that they could infer from the evidence that she had been promoted.
[96] Counsel for the defendants also misstated the plaintiff’s evidence on how much she was making in 2020. She stated: “Ms. Braks testified that she makes $70,000 at the CRA in 2020.” In fact, the plaintiff testified in chief, and in cross, that her salary from CRA in 2020 was between $62,000 to $63,000.00, which was increased to either $64,000 or $65,000.00.
[97] Counsel for the defendants unfairly represented the evidence of Dr. Maidment with respect to her August 9, 2012 note (the error in the date (8th) is not the issue). The misstatement in fact started from the opening address. In the opening, counsel stated the plaintiff’s family doctor would testify that on August 9, 2012, she concluded that the plaintiff’s concussion symptoms had resolved. She pivoted back to that letter in the closing address stating as follows:
On August 8, 2012, the family doctor, Dr. Maidment, wrote a “To Whom It May Concern” letter indicating that Ms. Braks concussion symptoms had resolved. She confirmed the same note in court. By that time, Ms. Braks had returned to work and was using an elliptical machine.
[98] At the trial itself, Dr. Maidment in fact corrected counsel by adding the word “reported”. It is clear why she did so because the meaning changes – it was not her conclusion but what the plaintiff “reported” to her, and in fact, the letter dated August 9, 2012 (not August 8) is on the heels of a discussion with the plaintiff the day before. The letter reads:
To Whom It May Concern:
Re:--------------
Please be advised that Alison is fit to return to work on a part time basis as of Monday August 13/12. She has not be (sic) re-examined however she reports that her concussion symptoms have resolved. If she continues to remain symptom free upon her return to work, she can progress (sic) her working hours as tolerated (emphasis added).
[99] Despite the content of the letter, and Dr. Maidment’s correction of defence counsel during her cross examination, the closing address unfairly represented her evidence, suggesting that it was Dr. Maidment who had concluded that the plaintiff’s concussion symptoms had resolved. Both her note from the previous day and from Dr. Maidment’s evidence at trial, when she corrected counsel for the defendants, and the letter itself, suggest that there was a possibility of the plaintiff’s symptoms returning.
[100] During the trial, Dr. Maidment corrected counsel when the question was posed and adding the word “reported”. She indicated her “reported concussion symptoms had resolved.” The other misstatement in that passage is the statement that: “By that time, Ms. Braks had returned to work and was using an elliptical machine.” This is completely inaccurate. It was not Dr. Maidment’s evidence and there was no evidence before the jury that as of August 8 or even 9th, the plaintiff had returned to work and was using an elliptical machine. In fact, Dr. Maidment’s notes on August 8, 2012, noted:
“Telephone call to pt re return to work. Not having any concussive symptoms and has been doing routine daily activities. Wants to try to return to (sic) next week August 13. Advised trial ok and if symptoms recur needs to stop and wait for another week. pt agreeable….”
[101] Indeed, at her September 12, 2012, the plaintiff reported having progressed to full time work hours as of August 27 and was in ER the day before “for migraine like pain, nausea”.
[102] There is another area where the evidence is misrepresented which bears underlining, especially in light of the records of Dr. Maidment, which were also entered as an exhibit to the trial. Counsel for the defendants stated during her closing that:
Dr. Maidment testified that she referred Ms. Braks to a neurologist, Dr. Kathrine Giles and upon the visit with her in September 2012, the family doctor testified she did not have any specific concern from that visit.
[103] However, Dr. Maidment’s evidence was that she had no specific “new” concern from that visit. While the addition of the word “new” may seem a minor point, Dr. Maidment’s September 12, 2012 notes are extensive. They list the plaintiff’s complaints on that visit which was noted as a follow up to her neck pain and concussion. The notes speak for themselves. At that visit, Dr. Maidment made an assessment of “mechanical neck pain with radiculopathy”, and her note also indicates: “P: await appt with dr Giles, EMG, declined meds, continue with physical therapy as tolerated…”.
[104] From the opening statement, counsel for the defendants made reference to evidence that was inadmissible or otherwise required a ruling. The two most cogent examples, which were weaved back into the closing relate to references to the opinion of Dr. Kathrine Giles, the plaintiff’s treating neurologist, regarding the resolution of the plaintiff’s concussion, as of September 2012, and the impugned oral statement, above, in the Incident Report.
[105] I agree with the plaintiff about the reference to Dr. Giles. It was a veiled attempt to refer to Dr. Giles’ opinion, through Dr.Maidment, that the concussive symptoms had resolved. The plaintiff was referred to a neurologist, Dr. Katherine Giles, regarding her concussion. Throughout the course of the trial, counsel for the defendants attempted to elicit, through others, the opinion of Dr. Giles that the plaintiff’s concussive symptoms had resolved by the time she saw her in September 2012. Dr. Giles had written a Consult Note on September 14, 2012, which indicated:
Impression: “There are several issues today with Alison. First of all, I believe she did have a concussion but I believe her post-concussion symptoms have resolved and the concussion itself is healed.
[106] Counsel for the defendants stated during the closing:
“If Ms. Braks did indeed hit her head on her arm during the slip and fall or as to a result of the slip and fall, I suggest to you that she recovered within a few months. Specifically, Ms. Braks concussion symptoms had resolved by September 2012.”
[107] The remarks in the closing statement harkens back to similar remarks made in the defendants’ opening address. The court placed guardrails around any opinion evidence from Dr. Giles, but counsel for the defendants managed to elicit that evidence through the plaintiff and Dr. Gawel, the plaintiff’s expert neurologist. Notwithstanding the jury having heard the evidence, a charge on hearsay, if that was the only issue, may have sufficed. There was no reason for counsel to refer to Dr. Giles in her closing address as she did not testify, and the only inference left is that the defendants wanted to remind the jury of her opinion made (coincidentally in September 2012) though the opinion evidence elicited at trial, despite the guardrails. The plaintiff’s cross examination highlights the concern:
Q. Dr. Maidment, your family doctor also referred you to see Dr. Kathrine Giles. Do you remember seeing Dr. Giles in September 2012?
A. I do.
Q. Do you remember what she told you about your concussive symptoms - that they had resolved?
A. She suspected that they had resolved.
[108] Dr. Giles’ opinion evidence was inadmissible and as such, should not have made its way, even indirectly, into any party’s opening address or the closing address.
[109] Since Dr. Giles was not called to testify at the trial, counsel’s conclusion that the plaintiff’s concussion symptoms had resolved by September 2012, can only be based on her own personal view of the evidence, which is not permitted.
[110] Another area where counsel for the defendants misinforms the jury about the evidence, is with respect to the plaintiff’s complaints about her eyes. The defendants have a right to take the position that any complaints with eyes have nothing do with the fall, but just like the concussion, counsel tried to “misdirect”, the jury as to what the evidence was. She suggested in her closing that the plaintiff’s issues with her eyes started three years after the fall. From the evidence, it was open to the jury to find that the plaintiff’s optic swelling had nothing to do with the accident but rather with her idiopathic intracranial hypertension that was unrelated. However, there was evidence before the jury of issues with her eyes within weeks after the fall. In her closing she stated:
“The turning point is when Ms. Braks returns to work after her maternity leave in August 2015. Issues start cropping up over three years after the fall. For example, eyes. On August 31, 2015, Ms. Braks was lifting heavy furniture and her eyes started pulsing for a moment. Ms. Braks was seen by Staci Boon.”
[111] However, the plaintiff started to see a physiotherapist shortly after the fall. Those records, filed as evidence at the trial, show that as early as June 6, 2012, when she saw her physiotherapist, she was complaining of problems with her vision, hence the note: “Vision has been mildly affected”. The notes indicated: “Recommended an optometrist”. Dr. Maidment’s notes for July 25, 2022, two months after the fall, indicate “feels like she is on a wave, vision is looking through eyelashes at times”, and on re-examination testified that: “there is refence in the note July 25, 2012, where Alison reported vision is looking through eyelashes at time.” Vision complaints therefore surfaced soon after the fall. It was open to the jury, of course, to decide on the evidence that the optic nerve swelling had nothing to do with the fall, was a separate issue from the earlier vision complaints, and indeed, Dr. Mazidi testified the latter issue, related to the IIH, was successfully treated with medication.
[112] Counsel for the defendants also misstated the evidence of Dr. Dr. Elnaz Mazidi, the treating neurologist, who diagnosed Ms. Braks with probable idiopathic, intracranial, hypertension, IIH. She stated during the closing:
She testified that headaches are part of the constellation of symptoms with IIH. That is consistent with the headaches reported on April 5, 2021, and May 11, 2021 as per the records of Dr. Maidment. Dr. Mazidi testified that IIH can be caused by multiple factors. According to Dr. Mazidi, the physical and the antibiotics Ms. Braks was taking at the time was a factor. While Dr. Mazidi noted that Ms. Braks had not recently gained weight, she testified that Ms. Braks was obese and this was a risk factor for developing IIH.
[113] Dr. Mazidi in fact testified that the plaintiff had been suffering from headaches since 2012. She testified that: “At the first assessment, I started treatment with a medication called …. to help with IIH but also her chronic headaches and migraines”. She also testified that: “I think, well, I think there is multiple factors. I think the doxycycline might have played a factor. Historically there is no weight gain, but she is obese. It is usually weight gain that precipitates it.” Slight though it may seem, there is a difference between “was a factor” and “might have played a role”. And, Dr. Mazidi did not say obesity is a risk factor for developing IIH but rather, that IIH was usually precipitated by weight gain. Whether there is a distinction, without a difference, was not explored by counsel for the defence when she cross examined Dr. Mazidi. It was certainly open to the defendants then to suggest to the jury that they could infer that the plaintiff’s obesity was a factor.
vi. Reference to Hearsay and Irrelevant Evidence
[114] It is settled law that opinions in documents admitted as business records do not constitute “an act, transaction, occurrence or event” under s. 35 of the Evidence Act, Evidence Act, R.S.O. 1990, c. E.23.: see, Slough Estates Canada Ltd v. Federal Pioneer Ltd, 1994 CanLII 7313 (ON SC), Rosenberg J., as he then was stated:
The business records exception under s. 35 of the Ontario Evidence Act does not contemplate the admissibility of records containing opinions of their makers, as these opinions would not be records of "an act, transaction, occurrence or event" as required by the Act: Aynsley v. Toronto General Hospital, supra, at p. 432; Adderley v. Bremner, supra, at p. 624; Tecoglas Inc. v. Domglas Inc. (1985), 1985 CanLII 2043 (ON SC), 51 O.R. (2d) 196 at p. 204, 19 D.L.R. (4th) 738 (H.C.J.).
[115] The law is also well settled that statements in hospital records and clinical notes and record are not admissible for the truth of their content: Adderly v. Bremner (1967), [1968] O.R. 621 (H.C.), per Brooke J. (as he was then). In Girao v. Cunningham, 2020 ONCA 260, Lauwers J.A., speaking for a unanimous court, underlined that s. 35 "is not a proper basis on which to admit opinion evidence": para. 46. He stated that counsel must rely upon s. 52 when it comes to admitting opinion evidence (including medical opinions and diagnoses), and he supported this conclusion by citing an earlier decision of that Court, Robb Estate v. Canadian Red Cross Society (2001), 2001 CanLII 24138 (ON CA), 152 O.A.C. 60, at para. 152, where the Court of Appeal for Ontario outlined the differences between s. 35 and s. 52 and held that when it comes to the "admission of opinions and diagnoses contained in medical reports signed and prepared by qualified practitioners", the latter provision must be relied upon.
[116] During her closing argument, counsel for the defendants stated:
“According to Dr. Maidment, Great West Life, disability insurer of Ms. Braks, refused to pay for such leave because Ms. Braks was considered too functional to receive disability”.
[117] Another reference in the defendants’ closing which referred to hearsay evidence, but also referred to irrelevant considerations it’s the reference to the denial of coverage by the plaintiff’s group disability insurer. In general, submissions which impedes the jury from focusing on their proper task of deciding the case on the evidence is a serious transgression: Geoffrey D. E. Adair, On Trial: Advocacy Skills Law and Practice (Toronto: Butterworths, 1992) at 467.
[118] Aside from being irrelevant to the issues to be determined by the jury, and based on hearsay, the statements did unfairly represent Dr. Maidment’s evidence that was before the jury. When asked about her note in August 2016, which suggested that short term claim had been denied, Dr. Maidment testified that: “Alison reported she was told she’s too functional at home to be awarded disability”, which is consistent with what the note says (emphasis added). The remarks to the jury suggested that the plaintiff was functional in all respect.
[119] At the trial, the statement in Dr. Maidment’s notes was not put to the plaintiff. The following is the extent of the exchange:
Q. You did not receive any short-term disability benefits, did you?
A. They denied my claim.
Q. And that would be the provider of Scotia, correct?
A. Great West Life
Q. Thank you. They denied it because they considered you functioning well enough not to go on disability?
A. I ---I can’t speculate what their reasons were. I just know at the time stress leave wasn’t as supported as it is nowadays.
[120] Some (not all) additional hearsay statements included in the closing address are as follows:
• “Dr. Maidment testified that in October 2016, Ms. Braks reported that the work environment was a lot better at CRA, and she felt she would be a lot happier there.”
• “Dr. Maidment gave evidence that in October 2012, Ms. Braks did not use Amitriptyline prescribed for neck stiffness.”
I pause by saying that this is also an unfair representation of the evidence before the jury. Dr. Maidment was supplementing her evidence with respect to her September 12th visit. She indicated that that there was a note on October 2, 2012, with respect to a suggestion made by the neurologist to start a new medication, Amitriptyline, for her neck stiffness, which was communicated to the plaintiff. This was followed by: “Was that commenced?”, to which Dr. Maidment responded: “No I don’t believe it was.”
• Ms. Braks family doctor, Dr Maidment, gave evidence that on July 20, 2016, Ms. Braks reported that work was very stressful ant that she had an interview with CRA.
• “Ms. Braks told her economic loss expert that the reason, Mr. Polisiuk, that the reason why she changed her job was because it was a less stressful position.”
[121] One issue addressed in the closing that straddled the line between being irrelevant (based on the evidence at trial) as well as hearsay is with respect to the plaintiff’s father allegedly having migraines. It was repeatedly put to doctors including Dr. Gawel, an acknowledged specialist in the field of migraine headaches. Dr. Gawel testified that migraines can arise spontaneously in people possibly due to hereditary factors or occur as result of trauma. He explained the criteria for a headache to be classified as a migraine.
[122] As noted by Bangay in his article “Inflammatory”, “Prejudicial” and Other Adjectives”, counsel may not suggest a matter which counsel knows is not proven even if supporting evidence is adduced”. At the trial, the plaintiff explained the reason for her father’s “migraines” was a food allergy. She testified as follows:
Q. You have a family history of migraines.
A. No. My father had suffered from migraines, and then they realized it was due to him drinking Chrystal light, so once he stopped drinking Chrystal light, and often it was the red five or the yellow, or whatever, it was like a food allergy, so once he stopped drinking that chemical stuff, it stopped triggering headaches for him. But no, there was no family history of migraine it was just my father.
Q. But your father had a migraine history.
A. My father had migraines. Yes.
[123] The defendants treated this matter as a proven fact. I agree with the plaintiff that the remarks were improper. I reject the defendants’ argument that it went only to the credibility of the plaintiff. The inference that the defendants were inviting the jury to accept is that the plaintiff’s father suffered from migraines. Migraines are hereditary. The plaintiff’s migraines are heredity. The plaintiff would have suffered from migraines even if the fall had not occurred. Her migraines are unrelated to the fall. I agree with the plaintiff that it went to credibility and causation, but I would add, also damages. Counsel stated in the closing:
Ms. Braks testified that the doctors had not asked her about past history, and that’s why she had not mentioned her father’s migraine, snowmobile accident, motor vehicle accidents, however, Dr. Gawel requested medical history be provided prior to the assessment. Ms. Braks did not reveal any of her past medical history to her family doctor in their meet and greet visit in November 2010 as a matter of background for her new family doctor. In fact, she had not mentioned any of them to her husband either.
[124] By the closing address, it was clear the that the plaintiff’s pre-accident medical history was not relevant. The snowmobile accident was (grade 7 or 8) and there was no evidence as to what injuries she sustained, if any. She was involved in two car accidents as a teenager, one in which she sideswiped a vehicle and kept going; she sustained no injuries, and the second, a roll over, in which she sustained a rotator cuff injury with no residual issues. The relevance of her not telling the family doctor, two years before the fall, of her remote pre-accident history is not clear. The family doctor testified, that she has no recollection of the plaintiff complaining of complaints from the motor vehicle accidents or migraine headache before the fall. Both defence experts, Dr. Daniel Selchen, neurologist, and Dr. Max Kleinman, physiatrist, concluded that her pre-existing medical condition was not a factor in her condition. There being no admissible evidence establishing a causal link between the plaintiff’s past medical history and her alleged complaints, reference to such evidence only served to distract the jury. Finally, the remarks unfairly represented the plaintiff’s evidence, which was, that she did not believe that she had been asked for that far back.
vii. The defendants’ invited the jury to make perverse finding of zero damages
[125] This matter could have been addressed in the jury charge and was correctable. The court could have provided the jury with some guidance in determining damages.
viii. The Conduct of the Trial
[126] The plaintiff complains that there were other incidents which occurred during the trial which would impede trial fairness. On their own, they were capable of being remedied, and indeed some were addressed during the course of the trial, and others were to be revisited in the charge to the jury. Some of the key events which tilts in the direction of an unfair trial include the following:
• Questions were put to the plaintiff on a number of occasions, with the suggestion that she was about to be impeached, but no evidence materialized, the question was withdrawn, or counsel moved on. For example, the fall occurred on a Friday. During cross examination, defence counsel asked the plaintiff: “You remember having any subsequent back fall that weekend”. In receipt of a negative response, counsel stated that she would move on then. Another such question was the following: “In early2013, January 2013, did you do any painting and stripping of the walls?”
• Counsel for the defendants objected on at least three occasions to the plaintiff’s counsel putting a hypothetical question to various experts. “Hypothetical questions are questions based upon hypothetical or assumed facts. Understood correctly, they are a very tidy way to elicit the opinion of an expert”: Robert B. White, Q.C., The Art of Using Expert Evidence (Aurora: Canada Law Book Inc,.1994), p.48. In one instance, in the presence of the jury, in objecting to the plaintiff’s economist answering the question, counsel for the defendants indicated, again in the presence of the jury, that: “I would submit …that it is speculation; it is hypothetical, and I don’t think that it is in the four corners of the report. So, I wonder about the value that it has for this proceeding.”
• The diagnoses of carpal tunnel syndrome and opinion on causation by Dr. Kathrine Giles, who the defendants undertook to call but did not, was elicited through Dr. Selchen and Dr. Gawel. The defendants had not complied with s. 52 of the Evidence Act. The parties had not agreed on what use could be made of the report, if filed. In the result, there was no diagnoses of carpal tunnel or opinion on causation. After counsel for the plaintiff objected to the opinion of Dr. Giles being read into the record, and added that it was not relevant, in the presence of the jury counsel for the defendants indicated: “I would suggest that it’s not irrelevant to this action, considering the symptoms reporting pertaining to carpal tunnel go hand in hand with some of the symptoms that have been alleged in this fall and that’s it for the record…..”
• By the time the defendants made their closing submissions, there were a number of correcting instructions, and reminders, already to be provided to the jury when they were charged.
• The opinion of Dr. Giles on the plaintiff’s concussion having been resolved as of September 2012, was elicited through the plaintiff’s evidence. Again, Dr. Giles was not called to testify.
• Throughout the cross-examination of Dr. Maidment, she was asked to simply read, into the record, her notes of various conversations with the plaintiff, most of which were never put to the plaintiff, and were material to the jury’s determination of damages.
• In response to the plaintiff’s objection about Dr. Selchen providing evidence on the plaintiff’s double vision, counsel for the defendants stated, in front of the jury: “….it was clear from the testimony during qualification that as part of what is related to the field of multiple sclerosis there is examination of the eyes and also the doctor has been testified in the field of neurology and has testified that he has dealt with trauma and issues of such and blurred vision, if any, is related to trauma.” Dr. Selchen’s qualification testimony having focused on his specialization being MS, and with his explanation of the signs of MS, and the symptoms which the plaintiff complained of, it is not clear what effect, if any, the statement had on the jury.
Conclusion
[127] I agreed with the plaintiff. While each individual serious offending statement, in isolation, was capable of being cured, cumulatively they were not. A summary of the some of the more serious breaches show that the jury would have been focused on what not to do, instead of their sworn task of deciding the case on the admissible evidence before them. The following is a summary of some of concerns raised.
i. The misdirection started with the opening, continued throughout the trial and made its way in the closing including: indicting that the plaintiff turned her ankle and fell; referring to the opinion of a doctor that was not called to support the defendant’s theory that her concussion resolved by September 2012, and picked up in the closing; referring to hearsay statements not ultimately proven at the trial.
ii. The jury was misled on the evidence with respect to the plaintiff reporting of her hitting her head to the doctor. She reported it to her family doctor on July 25, 2012. Moreover, Dean Farrugia and Nader Babbili – who saw the plaintiff within minutes of the fall – testified in court that the plaintiff told them she hit her head; it was open to the jury to consider whether this hearsay evidence was said and consider it in the context of all the other evidence in determining whether the plaintiff struck her head in the fall.
iii. Counsel provided her own opinion that the plaintiff did not suffer a concussion, despite the overwhelming medical evidence from treating doctors (primary care physicians, sports medicine physician, neurologist) and the experts, even the defence own experts, all of whom diagnosed her with having sustained a concussion and testified at the trial to that effect.
iv. Counsel referred to facts or “other records” not in evidence, by suggesting that records exist for the period of October 2013 to August 2015, that say “nothing pertaining to the slip and fall”. She also unfairly suggested that Dr. Maidment agreed with this when she testified. The statement itself contradicts the evidence contained in the Grandview hospital records which was filed as part of the evidence.
v. She unfairly represented Dr. Maidment’s evidence, after being corrected by her, about what her August 8 (actual date is 9), 2012 “To Whom It May Concern” letter indicated.
vi. She unfairly represented to the jury that the plaintiff was back at work and using an elliptical machine by August 8, 2012.
vii. The jury was told, as if it were a fact proven at trial, that the plaintiff had already been promoted at CRA, when on the evidence, this direct question was not asked, and it was not at all clear on the evidence.
viii. Counsel for the defendants misstated the evidence of the treating neurologist, Dr. Mazidi, on the risk factors for developing idiopathic, intracranial, hypertension.
ix. Counsel for the defendants suggested that the plaintiff’s issues with her “eyes” cropped up three years later, which is an unfair representation of the evidence both filed as exhibits and the testimony of witnesses.
x. Counsel may also not make reference to excluded evidence in their closing address. Against this backdrop, the sole evidence that the defendants were relying on that the plaintiff’s concussion had resolved was the opinion of Dr. Kathrine Giles, and she was not called to testify.
xi. As for the hearsay evidence, this issue cropped up repeatedly during the trial. Counsel for the defendants were cautioned on the limits placed on documents filed as business records. As a result of being cautioned initially, the defendants decided to call Barbara Haig, who completed the incident report. However, the oral statement, referenced in the defendants opening address to the jury, said to be attributable to the plaintiff, and not put to her in cross examination, made its way into the closing address. Counsel may not refer to evidence that has been excluded by the trial judge: John Olah – 18.3(b), p. 18-14, citing R. v. Cashin (1981), 1981 CanLII 3229 (NS CA), 65 C.C.C. (2d) 56 N.S. C.A.).
xii. By the same token, where evidence has been admitted for limited purposes, the court has directed the parties on the limitations of the evidence, it is inappropriate for counsel to treat the evidence as admitted without restrictions. Counsel may refer to the part of the evidence that is proven but not to evidence that would be otherwise inadmissible absent the necessary voir dire and a ruling on that evidence.
xiii. Similarly, limits imposed with respect oral statements attributable to the plaintiff in “business records” were ignored, and references made their way into the defendants closing argument, as noted above.
xiv. The defendants approached the evidence of the plaintiff’s father having migraine headaches as if it were a proven fact.
xv. Counsel for the defendants referred to irrelevant evidence as well as hearsay evidence.
xvi. The jury was misinformed on the law of contributory negligence as it relates to the plaintiff.
[128] The Court of Appeal held in Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767 (C.A.), at paras. 106-07, that in general, courts are to be guided by the principle that clear improprieties in an opening or closing address by counsel are to be identified for the jury and coupled with an unambiguous direction that they are to be disregarded as irrelevant.
[129] As noted by the Supreme Court of Canada in Stewart v. Speer, 1953 CanLII 153 (ON CA), [1953] O.R. 502 (C.A.) at pg. 508, when these breaches occur the Court must decide if the breaches are “likely to prejudice the cause of an opponent in the minds of honest men of fair intelligence to such an extent as to work an injustice.”
[130] The Ontario Court of Appeal noted in Cowles, that the Court must decide whether justice to the parties would be better served by discharging the jury or retaining the jury.
[131] I determined that I could not provide any corrective instructions to the jury as contemplated in Landolfi. No matter how clear and blunt the correcting instruction was, the damage had already been done. The jury would be distracted from their proper task as they attempted to navigate what was admissible and inadmissible evidence. I agree with counsel for the plaintiff that to draw the jury's attention to the numerous transgressions and offending comments would only exacerbate the harm, already done. As noted by the Court of Appeal in Groen v. Harris, 2010 ONCA 621, at para. 8, focusing on each offending comment one by one “masks the reality that, as is often the case, it [is] the cumulative effect of the comments that caused the trial judge the greatest concern.”
[132] The cumulative effect of the offending statements in the closing alone was such that a fair trial could not be had. The interest of justice warranted a discharge of the jury. Taken together with other corrective instructions to be made to the jury as a result of the conduct of the trial, statements made by defence counsel at various points during the course of the trial, in the presence of the jury, and the conduct of the trial itself, there was a substantial risk of a miscarriage of justice.
[133] There are no instructions adequate enough to cure the prejudice to the plaintiff given the comments made in the opening statement, comments made by counsel for the defendants in the presence of the jury during the trial, and the prejudicial remarks made during the closing address.
A.P. Ramsay J.
Released: July 18, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALISON BRAKS
Plaintiff
– and –
DUNDEAL CANADA (GP) INC., DUNDEE REALTY MANAGEMENT CORP. and DUNDEE REALTY MANAGEMENT INC.
Defendants
REASONS FOR JUDGMENT
A.P. Ramsay J.
Released: July 18, 2022
[^1]: Geoffrey D.E. Adair, On Trial: Advocacy Skills Law and Practice, 2nd ed. (Markham, LexisNexis Canada Inc., 2004) [^2]: Advocates Society Journal, 1997 [^3]: Browne v. Dunn, 1893 CanLII 65 (FOREP), [1893] J.C.J. No. 5, 6 R. 67 (P.C.).