Court File and Parties

2023 ONSC 4112

Court File No.: CV-4405-00 and CV-18- 4440-00 Date: 2023 06 19

Ontario Superior Court of Justice

Between: Kenisha Desmond, Plaintiff Lisa Bishop, for the Plaintiff

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Evan Hanna and Ronetya Yousuf, Defendants Keith Smockum, for the Defendants

Heard: June 19, 2023, heard orally

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Between: Shian Henry, Plaintiff Lisa Bishop, for the Plaintiff

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Evan Hanna and Ronetya Yousuf, Defendants Keith Smockum and S. Desai, for the Defendants

Heard: June 19, 2023, heard orally

Note: Not to be Uploaded to any Public Database or Released Publicly Until the Jury has Rendered its Verdict.

Trial Ruling #6: Substantive Changes to Final Jury Instructions

Trimble J.

[1] At the beginning of the pre-charge conference this morning, the plaintiffs raised three changes they wished to be made to the final instructions to the jury. They requested a ruling on their requests so they could prepare their closing submissions to the jury. The rulings will also have to be addressed in the final version of the charge. I deal with each below.

Instruction Re: Rear End Collisions

[2] The plaintiffs require that a specific standard instruction be given to the jury that that where one car runs into another from behind, in the absence of any excuse for such a collision, the driver of the rear car has an evidentiary onus of explanation to satisfy the jury that the collision did not occur as a result of his negligence.

[3] The defence position is that this instruction is irrelevant. There is no evidence that the Hanna vehicle struck the back of the Desmond vehicle. Neither plaintiff gave such evidence.

[4] In response, the plaintiffs say that there was an agreement with respect to Mr. Hanna being responsible for a rear end collision. That is why they elected not to examine him for Discovery.

[5] We took the morning break so that the parties could check their files about this alleged agreement and continue the argument.

[6] After the break, I heard nothing about any agreement with respect to Mr. Hanna’s car being the striking car. Instead, the plaintiffs referred to paragraph 4 of the Statement of Defence in each action, which they say contains such an admission.

[7] Paragraph 4 of the Statements of Defence must be read in conjunction with paragraph 5 of the Statement of Claim in each action, which are identical.

[8] Paragraph 5 of the Statements of Claim plead that the Desmond vehicle was rear-ended by the Hanna vehicle which forced the Desmond vehicle forward into the car ahead.

[9] Paragraph 4 of Mr. Hanna’s Statement of Defence in each action say that with respect to paragraph 5 of the Statement of Claim, the defendants admit that there was a collision on April 27, 2014, on Highway 41 near its intersection with Renforth Drive in which “the vehicle being driven by the driver Kenisha Desmond made contact with the Defendants’ vehicle but deny all other allegations of fact contained in the said paragraph 5 of the Statement of Claim.” In other words, there is no admission that the Hanna vehicle was the vehicle that struck the rear of the Desmond vehicle. The Hanna vehicle have might been the vehicle that struck the rear of the Desmond vehicle, it could be the vehicle into which the Desmond vehicle was propelled.

[10] What is the evidence?

[11] Both of the plaintiffs said that they saw a car approaching from the rear. At no time did either plaintiff identify Mr. Hanna as the driver of the striking vehicle or lead evidence that unequivocally identify Mr. Hanna’s vehicle as the striking vehicle describe the vehicle in any way that would permit it to be identified as Mr. Hanna’s.

[12] The plaintiffs attempted to put the Motor Vehicle Accident Report into evidence. I ruled that it was inadmissible. It was not properly proved nor was there any indication it was subject to a Request to Admit or any other Notice that would make it admissible without being proved in the normal course. The police officer was not called.

[13] There are, however, two pieces of evidence from which the jury may conclude that Mr. Hanna was the driver of the striking vehicle, should they accept the evidence. Both come from the examination in chief of Ms. Henry of 5 June, between 11:47 and 12:02 AM:

a. She said that after the collision, “it went black for a few”. When she came to everyone in her car was crying. She then said the driver from the car ahead of Ms. Desmond’s came back and asked them if they were okay.

b. She said that at some point she was standing by the side of the car. She remembers she was vomiting. She then went to the tow truck driver’s vehicle and sat in it until the EMS came. She said she remember being very upset when she went to get into the ambulance and saw the passenger for the person that hit them was in the same ambulance as she was. When the ambulance came, she was taken from the tow truck where she was sitting and placed in the ambulance. She was angry because the passenger.

[14] I agree that the instructions as set out in paragraphs 18 et seq of Iannarella v. Corbett, 2015 ONCA 110 should be given albeit with a review of the evidence as described above.

Mandatory instruction to draw an adverse inference from failing to call Mr. Hanna

[15] Relying on chapter 16 of Civil Jury Instructions, the online jury instruction resource published by the Continuing Legal Education Society of British Columbia, §16.5, the plaintiff’s wish that I instruct the in jury that Mr. Hanna did not give evidence and expose himself to cross-examination. Therefore, the plaintiffs say that the jury must be instructed that they must draw the inference that his evidence on liability would not have been of assistance to him.

[16] The defence advances two arguments contra. First, this instruction reverses the onus of proof. Second, the adverse inference demanded presumes that Mr. Hanna drove his vehicle into the rear of Ms. Desmond’s and therefore he has some reason to testify and explain something. He does not. There is no evidence that his vehicle struck the rear of the Desmond vehicle, thereby causing the accident.

[17] An instruction will be inserted about the failure of Mr. Hanna to testify, based on the discussion that follows.

[18] Before any adverse inference can be drawn against a defendant for failing to testify, the plaintiff must establish a prima facie case against the defendant which requires the defendant to explain his conduct. The failure of defendant to testify cannot be used as a means of filling a gap in some part of a plaintiff's evidence on onus. Only once the plaintiff has made out that prima facie case and it is capable of being displaced by evidence can the plaintiff argue that the adverse inference should be drawn if the defendant against whom the prima facie case is made fails to call a witness or produce evidence to displace the prima facie case. At that point, the inference may fairly arise for the jury that the evidence, if led, would not displace the prima facie case. Unless the prima facie case has been established, the omission to call the witness or evidence that might have been called by the defendant, amounts to nothing. (see: Northern Wood Preservers Ltd. v. Hall Corporation Shipping (1969) Ltd. et al. (1973), 2 O.R. (2d) 335 at p. 336, 42 D.L.R. (3d) 679, per Gale C.J.O; Kluvidakis v. Bunker, (1986) 35 A.C.W.S. (2d) 321 (Ont. H.C.)], aff’d (1988), 12 A.C.W.S. (3d) 570], per Henry J. at p. 31; Constitution Insurance Co. of Canada v. Coombe (1993), 15 O.R. (3d) 461, per Granger, J.).

[19] The foregoing reasons are in addition to the general law with respect to drawing an adverse inference.

Mandatory instruction to draw an adverse inference from failing to call Dr. Richard Stall

[20] The plaintiffs wish that I instruct the in jury that they must draw the adverse inference based on the fact that the evidence of Dr. Richard Stall, who prepared a defence psychiatric report with respect to Ms. Henry, would not have been of assistance to the defendants’ case, since they failed to call him. The plaintiffs rely on Civil Jury Instructions, supra, §16.4. This source relies on Buksh v. Miles, 2008 BCCA 318, at para. 35, and its progeny.

[21] I decline to insert the instruction as requested, or a number of reasons.

[22] First, Buksh addresses the question of whether, in all of the circumstances of the case, the trial judge ought to have heard the explanations for failing to call the witnesses, considered the degree of disclosure of the witnesses’ files and extent of the contact between the party and the physician, received submissions, and then determined whether the reasonable juror could draw the inference sought before giving the instruction to the jury for its consideration in its fact-finding role, before placing any instruction in the charge.

[23] Second, all of the cases cited in the CivJI reference are BC cases. The law in Ontario is different.

[24] The plaintiffs also cite Lévesque v. Comeau et al., [1970] SCR 1010 and the general principles as set out in Ma v. Canada (Citizenship and Immigration), 2010 FC 509, at para. 1 to 4 in support of the proposition that the instruction should be given to the jury that they must draw the adverse inference about the evidence of Dr. Stall because the defence did not call him.

[25] Lévesque can be distinguished on a number of grounds:

a. The facts are distinguishable. In that case, the plaintiff had had the onus to prove that her deafness was caused by the defendant. There was evidence that the plaintiff’s deafness could have been caused by a number of other conditions for which she saw other doctors. The Supreme Court of Canada dismissed the appeal on the basis that the Plaintiff failed to meet her onus. The comments about drawing an adverse inference that the other medical evidence (which clearly existed and was relevant to causation of the injury) was not called, are obiter. The Court commented, however, that on the facts of that case, the inference should be drawn that the evidence of the other doctors would not have assisted the Plaintiff in proving the cause of her deafness.

b. There is good reason to question the applicability of Lévesque. In The Law of Evidence in Canada (6th ed.), by Lederman, Bryant and Fuerst (Toronto: LexisNexis 2022), para. 6.509, p. 437, footnote 767 comments that the expansive scope of examination for discovery today serves to obviate the necessity or justification for adverse inferences. In Ritchie v. Thompson (1994), 155 N.B.R. (2d) 35 (N.B. C.A.) the New Brunswick Court of Appeal considered the Supreme Court of Canada decision in Levesque and commented that the Levesque case involved an unusual factual situation which does not have broad application. The court further commented on how changes in disclosure obligations have further limited the applicability of the Levesque decision.

c. Drawing such inferences must be done carefully, so as not to interfere with the burden of proof.

(See: Amtim Capital Inc. v. Appliance Recycling Centers of America, 2022 ONSC 6877, per Broad, J. at para.s 90-91).

[26] Levesque is still applied where the plaintiff fails to call medical evidence in the discharge of its burden of proof. In those cases, the instruction should about the adverse inference should go to the jury (see, for example Chepurnyj v. Collingwood Home Hardware Building Centre, 2022 ONSC 6788, per Healey, J., para. 11-16).

[27] In this case, no specific instruction is necessary with respect to Dr. Stall, beyond what is already contained in the final instructions. It was within the power of either party to call Dr. Stall and therefore there is no basis upon which to draw the inference (see: Lambert v. Quinn (1994), 110 D.L.R. (4th) 284 at 287-88 (Ont. C.A.), and Robb Estate v. Canadian Red Cross Society, para. 161).

Trimble J. Released: June 19, 2023