Court File and Parties

Court File No.: PETERBOROUGH CV-16-95 Date: 2024-01-25 Superior Court of Justice – Ontario

Re: Paul Taylor and Karen Young, Plaintiffs And: Pamela Zents, Defendant

Before: Casullo J.

Counsel: T. Lehman, L. Fitzgerald-Husek, and R. Hamadi, for the Plaintiffs S. Baldwin, for the Defendant

Heard: December 6, 2022

Ruling on Motion to Strike Jury

Overview

[1] This action arises out of a motor vehicle collision which occurred on October 17, 2015. Paul Taylor seeks damages for injuries sustained in the collision, the most significant being a concussion, or mild traumatic brain injury.

[2] The trial began on November 21, 2022, with jury selection. Once the jury was picked, the trial proceeded in the normal course. Counsel for the plaintiffs made an opening address, outlining for the jury the theory of their case. The defendant declined to give an opening at that time, which was of course her prerogative. The plaintiffs then began presenting evidence.

[3] For reasons to be elucidated below, on Tuesday, December 6, 2022, day twelve of what was anticipated to be a four-week jury trial, the plaintiffs moved for an order striking the jury. These reasons should be read in conjunction with my Reasons for Decision released January 8, 2024, Taylor v. Zents, 2024 ONSC 166, in order to appreciate the full flavour of the trial.

The Trial

[4] By December 6, 2022, several witnesses had been called on behalf of the plaintiffs to give evidence. This included Mr. Taylor, who spent almost three full days on the stand.

[5] As defence cross-examined the medical witnesses called by Mr. Taylor, the theory of the defendant’s case began to emerge, the cornerstone of which was the plaintiffs’ credibility. More to the point, it appeared the defence was intent on proving that Mr. Taylor had fabricated his symptoms to obtain a particular diagnosis. The theory was grounded in what the defence deemed Mr. Taylor’s inconsistent symptom reporting.

[6] This strategy crystallized on days ten and eleven of the trial (Friday December 2, 2022, and Monday, December 5, 2022). A key component to the defence theory was a note in the clinical records from the Mayo Clinic in 2018, almost three years after the collision. The impugned note read as follows, “[H]e said after the accident, he had some clear fluid from his left ear which later stopped.”

[7] However, there is no mention of fluid leaking from Mr. Taylor’s ears in the medical records contemporaneous with the collision, namely the ambulance call report the day of the collision, the emergency room visit the day after the collision, or Mr. Taylor’s first appointment with his family doctor three weeks after the collision.

[8] The defence had previously identified what it characterized as other instances of inconsistent reporting, including complaints of severe and debilitating headaches, and nausea, neither of which were documented by health professionals in the immediate aftermath of the collision. Mr. Baldwin put these inconsistencies to Mr. Taylor during cross-examination. The Mayo Clinic notation of fluid leaking from his ear was not.

The Mayo Clinic Record and Dr. Staab

[9] Mr. Taylor made the connection with the Mayo Clinic based on his own research. He testified he was frustrated because his symptoms (dizziness, brain fog, and feeling drunk) were persisting, and he was not getting answers from the many doctors he was seeing.

[10] As I understand the process at the Mayo Clinic, an intake clinician conducts the initial interview, and provides these findings to Dr. Staab, the psychiatrist Mr. Taylor was assigned to. Dr. Staab would review the intake clinician’s notes and convene a meeting with Mr. Taylor, and his wife, along with the intake clinician, to discuss the diagnoses reached and any recommendations arising therefrom. In 2018, Dr. Staab’s diagnosis was persistent postural-perceptive dizziness (“3PD”).

[11] The Mayo Clinic evidence was presented through Dr. Staab, who was a participant expert for the plaintiffs, on day nine (Thursday, December 1, 2022). A brief entitled “Mayo Clinic Brief Index of the Plaintiffs” was marked as lettered Exhibit I.

[12] During cross-examination, Dr. Staab was asked whether if someone had researched 3PD on the internet, one of the symptoms they might find was fluid leaking from the ear. Dr. Staab agreed with this. Dr. Staab was then taken to the intake clinician’s note referenced above. This was the first time in the trial that fluid leaking from the ears was mentioned. In fact, this was so striking that I made note of it, in capital letters, in my electronic bench book.

[13] Then came a question from defence counsel that would take on increasing significance in the coming days, to the effect that, “wouldn’t someone with fluid leaking from their ear seek medical attention?” Dr. Staab confirmed this would be the normal course.

[14] Dr. Staab was next taken to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”), where Mr. Baldwin pointed out the definition of malingering as it relates to secondary or financial gain. Counsel, Mr. Lehman, objected to where the questioning was going, arguing that defence counsel appeared to be positioning to ask Dr. Staab to make a diagnosis of malingering, which was outside the scope of his opinion. I heard submissions and released oral reasons permitting the line of questioning to continue, but only as it pertained to Dr. Staab’s foundation, and formulation of his opinion.

The Mayo Clinic Record and Dr. Robinson

[15] On day ten of the trial (Friday, December 2, 2022), Dr. Robinson, a neurologist retained by the plaintiffs to give expert evidence, re-took the stand for his continued cross-examination. [1] He was asked whether, if someone had fluid leaking from their ear, that would be important enough to see a doctor about. Dr. Robinson testified that there may be any number of things a patient might be able to tolerate without seeing their doctor.

[16] Defence counsel then asked Dr. Robinson whether, and I paraphrase, “if someone did not report fluid leaking from their ear to the medical personnel seen in the immediate aftermath of a collision, but reported it over a year later, would that suggest the fluid leaking was a fabrication?” Dr. Robinson could not say whether this would be the case.

[17] Further cross-examination ensued, with the aim, it appears, of having Dr. Robinson concede that the suggested inconsistencies in Mr. Taylor’s reporting would cause him to lose confidence in his diagnosis. Dr. Robinson would not agree to this, and answered each question with a proviso as to why he did not consider there to be inconsistencies, contrary to the theory posed to him by defence counsel.

The Mayo Clinic and Dr. Hamilton

[18] The second witness to take the stand on December 2, 2022, was Dr. Hamilton, a psychologist with a private practice in neuropsychology. Dr. Hamilton had been treating Mr. Taylor since 2017, based on a referral from Mr. Taylor’s occupational therapist. In preparation for trial, Dr. Hamilton was retained by Mr. Taylor’s legal team to provide a medical-legal opinion.

[19] The defence did not challenge Dr. Hamilton on her qualifications as an expert witness. Instead, Dr. Hamilton was challenged on her ability to remain unbiased and impartial as an expert witness.

[20] After hearing submissions late in the afternoon of Friday December 2, 2022, we broke for the weekend. When we reconvened Monday, December 5, 2022, day eleven of the trial, I released oral reasons, finding that Dr. Hamilton was objective and impartial, and therefore permitted to offer expert opinion evidence on the issue of causation.

[21] It was after lunch on December 5, 2022, as defence counsel was deep into his cross-examination of Dr. Hamilton, that the issue of the fluid leaking from the ear was again broached. The same format of questions posed to Dr. Robinson were put to Dr. Hamilton. However, unlike Dr. Robinson, Dr. Hamilton eventually conceded that there were marked discrepancies in Mr. Taylor’s reporting of symptoms.

[22] The issue of the fluid leaking from Mr. Taylor’s ear, and the lack of this being reported in the aftermath of the collision, had now taken on a life of its own. Of course, other inconsistencies were also pointed out. But the leaking fluid appeared to be the touchstone of defence counsel’s notion of inconsistent reporting.

[23] During the last moments of Dr. Hamilton’s cross-examination before the afternoon break, the notion that something was amiss occurred to me. I pondered my concerns over the break, and when court resumed, I advised counsel that I believed the rule in Browne v. Dunn, (1893), 6 R. 67 (H.L.), had been breached. This rule requires cross-examining counsel to give notice to a witness whose credibility he or she intends to later impeach.

[24] To be sure, there is nothing untoward in the defendant’s strategy of creating blocks to lay the foundation to attack Mr. Taylor’s credibility. But Mr. Taylor was not taken to the Mayo Clinic record during his cross-examination. Mr. Baldwin’s decision not to do so deprived Mr. Taylor of the opportunity to explain why the first record of fluid leaking from his ear was not made until 2018 to the Mayo Clinic. He was further deprived of the opportunity to explain why this may not have been an inconsistency in reporting.

Positions of the Parties

Plaintiffs

[25] Mr. Lehman asserts that the defence strategy has rendered it impossible for Mr. Taylor to obtain justice with a jury. The failure of Mr. Baldwin to put the evidence of the fluid leaking from his ear to Mr. Taylor was problematic on its own. But this was further compounded by Mr. Baldwin’s cross-examinations of Drs. Staab, Robinson, and Hamilton on the ear fluid issue, without there being any context to this evidence.

[26] Mr. Lehman reminded the court that he did not ask Dr. Staab about the leaky ear issue during his examination-in-chief. This was so because the evidence was hearsay. Mr. Taylor did not tell Dr. Staab about the leaky ear – Mr. Taylor reported it to the intake clinician at the Mayo Clinic. This piece of hearsay evidence was introduced to the jury by Mr. Baldwin, and became central to the defence theory of credibility. Yet Mr. Taylor was not asked about it. This hearsay evidence was also characterized as a fabrication of a symptom. Again, all without cross-examining Mr. Taylor about it.

[27] The hearsay evidence became central to the cross-examination of the only two medical experts Mr. Taylor put forward – Dr. Robinson and Dr. Hamilton – and was a frontal assault on Mr. Taylor’s credibility.

[28] Trial unfairness became an issue when the ear fluid evidence was put to Dr. Hamilton, along with mischaracterizations of Mr. Taylor’s examination for discovery evidence, all of which led Dr. Hamilton to agree that there were material and important inconsistencies in Mr. Taylor’s evidence.

[29] Nothing short of striking the jury could be done to remedy the damage fraught by the breach of the rule.

Defence

[30] Mr. Baldwin submitted that there had been not a Browne v. Dunn breach, given that the defendant has not yet led any evidence. In other words, the defence would have to have opened its case before Mr. Taylor could be “Browne v. Dunned.” The rule is only breached when evidence is being called. For example, if the plaintiff had closed its case, and the defence called Dr. Staab and led evidence that Mr. Taylor reported fluid leaking from his ear, that could be a breach of the rule. But Dr. Staab was cross-examined in the context of the plaintiffs’ case.

[31] Mr. Baldwin further argued that it should come as no surprise that Mr. Taylor’s credibility is being challenged. The plaintiffs had known from the outset that the defence did not accept that Mr. Taylor’s injuries (concussion, post-concussion syndrome, adjustment disorder) were as a result of the collision. It was disingenuous to suggest that the defence was acting in an unseemly fashion.

[32] Mr. Baldwin did not agree that the evidence of fluid leakage was hearsay, as it was a symptom reported and recorded by medical professionals in the intake interview. The plaintiffs were not permitted to cherry pick from the Mayo Clinic records and use what was helpful to their case and ignore everything else.

[33] Mr. Baldwin also rejected the allegation that he misstated the evidence during his cross-examinations. He was careful to always premise his questions as, “IF the evidence were…”

[34] The defence did not spring a trap on Mr. Taylor. His credibility was challenged not only through the leaky fluid issue, but also the severe debilitating headaches that were not recorded, his reporting of “blacking out” when he told paramedics he did not lose consciousness, and his later reports of nausea and vomiting, all against the backdrop of a normal assessment at the collision scene with no reported objective symptoms, no distress, and no loss of consciousness.

[35] Finally, if there was a breach, the remedy would be to recall Mr. Taylor.

The Case Law

[36] The purpose of the rule in Browne v Dunn is to ensure that parties and witnesses are treated fairly. It requires that counsel put a matter to a witness involving the witness personally, while on the witness stand, if counsel is later going to seek to impeach the witness’ credibility.

[37] This rule is one of trial fairness. It promotes fact-finding accuracy. It enables the trial judge to observe and assess the witness when confronted with contradictory evidence and given a chance to explain their evidence: R v Dexter, 2013 ONCA 744, 313 OAC 226, at paras. 17 and 19.

[38] Though it is not necessary to cross-examine upon every minor detail in the evidence, a witness should be provided with an opportunity to give evidence on “matters of substance” that will be contradicted: R. v. Giroux (2006), 210 O.A.C. 50 at para. 46.

[39] If the rule in Browne v. Dunn is violated, a trial judge has discretion as to how to proceed to remedy the situation. A number of factors which may be considered are outlined in Dexter at para. 20:

• The seriousness of the breach;
• The context of the breach;
• The stage in the proceedings when an objection to the breach was raised;
• The response of counsel, if any, to the objection;
• Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation;
• The availability of the witness to be recalled; and
• In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.

Analysis

[40] I am confident that Mr. Baldwin deliberately chose not to question Mr. Taylor on this piece of evidence. I say this with the utmost respect. Mr. Baldwin displayed an encyclopaedic memory for each and every fact in this case. It was astonishing to behold, frankly. The failure to take Mr. Taylor to the notation in the Mayo Clinic records was by design. It was not an inadvertent slip. It cannot be said that Mr. Baldwin was unaware of this piece of evidence, as Mr. Taylor had reported it to Dr. Jovanovski, one of the two medical experts retained by Mr. Baldwin.

[41] I find favour with Mr. Lehman’s argument that the fluid leaking from Mr. Taylor’s ears was hearsay. It was a statement attributable to the plaintiff made out of court, which was not put to him, in breach of the rule in Browne v. Dunn: Alison Braks v. Dundeal Canada (GP) Inc. et al., 2022 ONSC 4015, 162 O.R. (3d) 683, at para. 47.

[42] As I noted in my Reasons for Decision, dated January 8, 2024, Mr. Lehman referred to Dr. Hamilton’s concession that the inconsistences amounted to marked discrepancies as a “Perry Mason” moment. [2] This is not hyperbole. The courtroom was so quiet a pin drop would have sounded deafening. The jury was hanging on Dr. Hamilton’s every word at this stage. Her answer prompted an audible reaction from the jury. There was no walking back from this moment. The horse was already out of the barn.

[43] In these particular circumstances, no correcting instruction would be strong enough to remedy the damage, as the jury’s ability to assess not only Mr. Taylor’s credibility, but also the credibility of the expert witnesses, was already poisoned.

[44] Neither would recalling Mr. Taylor be an appropriate remedy. If he were recalled, Mr. Taylor would be examined about an issue that was never raised by his counsel during his examination-in-chief. The jury might conclude that Mr. Taylor had hidden this evidence, feeding into the defence theory of inconsistent reporting.

[45] Further, Mr. Baldwin would have another opportunity to cross-examine Mr. Taylor at the end of the trial, perhaps further poisoning the jury as a result of Mr. Baldwin’s decision to ask the plaintiffs' experts about fluid leaking from his ear, without first giving Mr. Taylor an opportunity to account for it. This would be an assault on trial fairness.

[46] The only option was to strike the jury. Given this, I need not rule on whether Mr. Baldwin’s theory, that the rule in Browne v. Dunn can only be breached when the examining party is presenting its case, is a sound one.

[47] I note, parenthetically, that the Court of Appeal in O’Brien v. Shantz (1998), 167 DLR (4th) 132, dealt with a somewhat analogous situation. There, a volume of Workers’ Compensation Board records was filed in evidence by the plaintiff. The defence did not cross-examine the plaintiff on the entries in the records but referenced them in his closing address in an effort to show inconsistencies in reporting. In other words, evidence containing a statement that was put in during the plaintiff’s case, and later relied upon by defence.

[48] The trial judge in O’Brien dismissed the jury and rendered judgment herself. The Court of Appeal, in upholding the trial judge’s exercise of her discretion, did not indicate that the rule could only be breached when the examining party was presenting its case.

[49] In making my determination, I was mindful that the right to a trial by jury in a civil case is a substantive right, one that should not be interfered with without just cause or cogent reasons: see Cowles v. Balac (2006), 83 O.R. (3d) 660, leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 496, at para. 36. The onus is on the moving party to satisfy the court that justice to the parties will be better served by discharging the jury: see Cowles at para. 37.

[50] However, the right to a jury trial is not absolute: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108.

[51] As Brown J.A. held in Belton v. Spencer, 2020 ONCA 623, 58 CPC (8th) 16, at para. 26:

[A] judge considering a motion to strike out a jury notice has a “rather broad discretion” to decide “whether the moving party has shown that justice to the parties would be better served by the discharge of the jury: Cowles at paras. 36-38. This test recognizes that the “paramount objective of the civil justice system is to provide the means by which a dispute between the parties can be resolved in the most just manner possible”: Cowles, at para. 39.

[52] Ultimately, the test is whether justice to the parties would be better served by striking the jury notice: Cowles, at para. 46.

Conclusion

[53] Mr. Taylor’s credibility was a “matter of substance” per Giroux.

[54] Had the fluid leaking from his ear been put to Mr. Taylor during cross-examination, the jury would have had an opportunity to see and hear how he reacted to this purported inconsistency. There may have very well been a logical explanation. This did not occur.

[55] In the result, the plaintiffs have satisfied me that justice would best be served by striking the jury notice.

[56] Motion granted.

Madam Justice A.A. Casullo

Released: January 25, 2024

Footnotes

[1] Dr. Robinson was sworn as a witness on Wednesday, November 30, 2022, but his evidence was not completed by the end of the day, and he was unavailable on Thursday, December 1, 2022.

[2] See Taylor v. Zents, 2024 ONSC 166, at para. 381.