COURT FILE NO.: CV-18-1081-00

DATE: 20221201

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GREG CHEPURNYJ

Plaintiff

– and –

COLLINGWOOD HOME HARDWARE BUILDING CENTRE

Defendant

M. Blois and G. Bajenova, for the Plaintiff

O. Ansell, for the Defendant

HEARD: November 30 and December 1, 2022

HEALEY J.

Ranges

[1] Mr. Blois suggests that he put a range the jury of $45,000-$50,000 for the laceration requiring 8 stitches, which became infected but went on to heal in approximately three months.

[2] Having reviewed the cases relied on by Mr. Blois for that range, the evidence in this case is substantially different. In this case, there is not sufficient evidence to establish there was permanent scarring, and no evidence of residual problems or impairment created by the cut. At most, the evidence supports infection requiring IV antibiotics at the side of the suture only. There was scant evidence given of the impact of this laceration on the plaintiff’s life, and the evidence suggests that he continued to work. At the upper end, generously, this injury should not reasonably attract damages of greater than $15,000.

[3] Accordingly, the plaintiff will be permitted to suggest ranges of $10,000-$15,000, and the defence $5,000-$10,000 as proposed.

[4] If the jury finds that the ankle wound resulted from the laceration, the plaintiff suggests damages in the range of $130,000 to $150,000. It is artificial to piece out these damages, separate from the amputation, given that the only existing evidence regarding the need for the amputation was that it arose primarily from the wound on the ankle not closing. All of the medical complications related to that wound, and related pain and suffering, can be subsumed in this award.

[5] Mr. Blois asks to put the number of $305,000 to the jury. Having considered the cases presented by both parties, his initial range of $205,000-$255,000 is in keeping with this injury. Ms. Ansell suggests $100,000 to $150,000. There is authority for numbers within the full amount of counsels’ ranges. I approve that those ranges may be put to the jury.

Change of Ruling on Jury Questions

[6] In the interest of fairness, after hearing all of the evidence I am changing my ruling on the defendant’s request to have the jury set out the particulars of the defendant’s failure to take reasonable care.

[7] The scant evidence on liability produced by the plaintiff requires that the defendant and any reviewing court understand the basis for liability.

[8] Negligence cases appear to be an exception to the general rule that reasons not be provided by jury for their verdict, only to the extent that the jury be asked to state the particulars of the negligence.

[9] The opening statements of counsel did not hinge on that earlier ruling and the issue can now be addressed in their closings. There is no prejudice to either side.

[10] Accordingly, the original question will be reintroduced into the jury questions.

Adverse Inference

[11] Ms. Ansell request that the jury be instructed on adverse inferences arising from the failure of the plaintiff to call any treating professionals.

[12] The parties agree on the test to be applied in order for an adverse inference to be drawn, citing Levesque v. Comeau, 1970 4 (SCC), [1970] S.C.J. No. 55.

[13] Treating professionals who had material evidence to give on the issue of causation and damages were not called by the plaintiff. The omission of any testimony from the family doctor and a wound care nurse from St. Elizabeth’s is particularly conspicuous. These witnesses were required for several purposes, the most important of which was to prove the medical evidence underlying the expert opinion of Dr. Krajden. One or more were necessary to prove the underlying medical basis for the need for the future care costs. The family doctor was in the very best position to give evidence of the plaintiff’s health, pre-and post-August 6, 2017.

[14] While these treating health professionals may not have been under the exclusive control of the plaintiff, they absolutely would have been able to help the jury on material issues, and their evidence would have been helpful to the plaintiff discharging his burden on both liability and damages.

[15] It is not a requirement to call every treating health professional in a personal injury case. Certainly in a case such as this where no notice was given under the Evidence Act of intention to tender the supporting medical records into evidence, a witness able to prove the accuracy of the note or record was required.

[16] For these reasons the instruction on adverse inferences will be included in the charge.

HEALEY J.

Released: December 1, 2022