Court File and Parties

Court File No.: CV-15-00541672-0000 Date: 2024-07-09 Superior Court of Justice - Ontario

Re: Zorica Grujic, Plaintiff And: Daniel M. Fine, Defendant

Before: Carole J. Brown J.

Counsel: Lena Vartanian, Counsel for the Plaintiff Yasar Saffie, Troy Asselin and Callum Micucci, Counsel for the Defendant

Heard: June 5, 2024

Endorsement

[1] I start with the premise that a jury question should not go to a jury unless there is some evidence on which a jury, acting judicially in accordance with the judge’s instructions on the law, could reasonably make a choice in arriving at a finding. A proper evidentiary foundation must exist for a jury to be asked to decide on a particular issue. The Ontario Court of Appeal has confirmed that there must be “reasonable evidence” to allow a question to go to a jury. McCabe v. Roman Catholic Episcopal Corporation for the Diocese of Toronto, in Canada, 2019 ONCA 213 at para. 50; BM v. 2014052 Ontario Ltd., 2012 ONCA 135, 2012 ONCA135 at para. 51; Day v. Haiderzadeh, 2017 ONSC 7319 at para. 5.

[2] For questions of pecuniary damages, there must be a sufficient evidentiary basis upon which the jury can quantify those damages: Johnston v. Walker, 2017 ONSC 370 at para. 10; TMS v. Lightning Ltd. v. KJS Transport Inc., 2014 ONCA 1 at para. 65. The evidence must be reasonable in order to be put to the jury. Speculative evidence is not reasonable evidence and is not to be put to the jury. BM v. 2014052, supra, Ayub v. Sun, 2015 ONSC 6598 at para. 59.

[3] The contested jury questions in this action involve pecuniary damages. The first question is whether the plaintiff suffered a past loss of income as a result of the December 7, 2013 accident.

[4] The plaintiff produced in evidence her two-page income tax summaries for 2011 through 2016. For 2017 through 2023, the T4As were produced. There was no indication of at what point in time the calculation of loss of income would begin and end, because this was not a simple issue of a salaried employee’s loss of income. Rather, the plaintiff was a self-employed person who, pursuant to her testimony, earns commissions annually which vary up and down. She testified that she controls her expenses, net income, and bottom line, and testified that there were many contingencies as regards her profession of real estate agent that can impact her earnings from one year to the next. These contingencies include market competition, interest rate variability, changes in competition in a particular region, her spending on advertising from year to year, and unforeseen events such as COVID, that could all impact on her profession, her professional income and her sales in any given year.

[5] She admitted in cross-examination that if there is no detailed list of expenses in evidence, a court would not know how much she spends on certain items and what her net income is. Without evidence regarding these factors, calculation of loss of past income by the jury would be speculative.

[6] There are many factors that go into assessing market increases and decreases. While the plaintiff submitted that judicial notice could be taken from the fact that market prices have risen in the GTA over the last few years, I am not prepared to take such judicial notice, as it is still vague and there is no indication of the percentage by which prices have increased, and whether such price increases are found across the board, or only in certain types of sales such as condominium, residential, or commercial. Nor is there any evidence to indicate the actual impact on the plaintiff’s income.

[7] None of these contingencies or variables are specified or quantified in evidence. As a result, the jury would have to somehow pull facts and figures from thin air. While it is not always necessary to have actuarial evidence to assist the jury in such a case as this, it would be pure speculation on the part of a jury with respect to how they would calculate the loss of income, taking into account the contingency factors which were only vaguely referenced and without specificity. See Johnston v. Walker, supra; Day v. Haiderzadeh, supra; Fiddler v. Chiavetti, 2010 ONCA at paras. 63-65.

[8] Counsel for the plaintiff urged that there was evidence from the realty company with which the plaintiff worked that she was a top producer, that the owner would continue to refer sales to her, and that the owner’s top producers would earn between $350,000 and $700,000. There were no details about any of this. The jury can only speculate as to whether the plaintiff would have produced those amounts, and how long it might have taken her to do so, as she was a newer real estate agent.

[9] There was evidence from another more experienced realtor that he split his sales 50/50 with the plaintiff. However, there were no specific details as regards what the split in sales resulted in, on an annual basis for the plaintiff, or for how long this arrangement had lasted or would last. I do not find that there is sufficient evidence of a concrete nature to send this question to the jury.

[10] As regards whether the plaintiff suffered from future loss of income, my remarks are very similar to my remarks on loss of past income. In addition, there was no evidence as regards her intentions for retirement, i.e. at what age she intended to retire, which would have to be taken into account in a future loss calculation.

[11] Further, without contingencies and variables being specified as regards future loss of income, again, it would be a speculative exercise on the part of the jury to calculate future loss of income or the present value of future loss of income, to what age, and what, if any, contingencies could be taken into account.

[12] I do not find that there is sufficient reasonable evidence for this question to go to the jury.

[13] The next question is, what amount would the jury award for future cost of care? Entitlement to compensation for future care costs requires medical justification: Day v. Haiderzadeh, supra at para. 23.

[14] Assuming that a plaintiff establishes causation, the plaintiff must prove with cogent evidence that (i) the proposed expenditure is medically justified and reasonable in the context of the plaintiff’s specific limitations (supported by direct evidence) and (ii) the quantum of the proposed expenditure is moderate and fair to all parties: Ellsworth v. Singer, 2016 ONSC 4281 at para. 259.

[15] The evidence regarding future cost of care came from expert evidence of Drs. Wilderman and Basile from their reports of 2023. There was no evidence of what specific treatments were required after the motor vehicle accident of 2013. It is of note that between 2013 and 2023, when these reports are written, the plaintiff had two more motor vehicle accidents.

[16] It is further of note that, in the documentation indicating what treatments would be recommended, it simply stated in 2023 that treatment would be needed annually. It did not indicate which treatments would be needed annually and for how long any treatments would be needed, nor any indication of the frequency and duration of such treatments. There was no evidence of costing of such future treatments and no present value of those treatments. The evidence is much too vague to have this question sent to the jury. The basis for whatever responses they would give would simply be speculative.

[17] The next question is, what amount, if any, the jury would award for housekeeping and home maintenance costs. In this case, we know that the plaintiff had a cleaning lady, and she paid the cleaning lady cash. We do not know for how long she had a cleaning lady, the frequency with which the cleaning lady cleaned her home, or the number of sessions per year. I do not find there to be sufficient evidence to put this question to the jury.

[18] The plaintiff has requested that if past and future loss of income are not put to the jury, that the question of loss of competitive advantage be put to the jury. Is there reasonable evidence for a jury to determine this question? This depends on a finding of probable loss of future earnings and that the plaintiff has also suffered an increased likelihood of being unemployed in the future as a result of her injuries or a decrease in her marketability. Again, in this case, there will be no finding of probable loss of future earnings. Moreover there is no evidence to establish that the plaintiff’s purported loss of marketability is attributable to the plaintiff’s 2013 motor vehicle accident, or whether it is attributable to her subsequent motor vehicle accidents of 2019 and 2023. I know that, at present, the plaintiff continues to work through Sutton Realty. I do not find there to be sufficient evidence to put this question to the jury.

[19] In summary, jury questions 9 through 15, plus the additional question on loss of competitive advantage, will not be put to the jury.

C.J. Brown J. Date: July 9, 2024