COURT FILE NO.: CV-19-2521 DATE: 2024 02 08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BARRY, Plaintiff AND: ANANTHARAJAH, Defendant

BEFORE: Justice Mandhane

COUNSEL: Jamie Fox ( jfox@fvlaw.ca ) and Patrick Ho ( pho@fvlaw.ca ) and Faisal Afridi ( fafridi@fvlaw.ca ), for the Plaintiff Sarah Reisler ( Sarah.reisler@aviva.com ), and Michael Grivich ( Michael.grivich@aviva.com ) for the Defendant

HEARD: February 1, 2024

RULING ON MOTION TO STRICK JURY QUESTION

INTRODUCTION

1This is a jury trial for damages arising out of a motor vehicle accident. All the evidence has been completed.

2In her Statement of Claim dated October 3, 2016, the Plaintiff makes a claim for “special damages”, namely, for “loss of income, loss of competitive advantage, and loss of earning capacity in the sum of $700,000.”

3In the Statement of Defence dated February 9, 2017, the Defendant claims that the Plaintiff was contributorily negligent, including that she “failed to keep a proper lookout for vehicular traffic,” “failed to take reasonable care for her own safety,” and “entered the roadway when it was unsafe to do so.”

4The Plaintiff now brings a motion to strike the following jury question:

Q1. Has the Defendant proven that the Plaintiff’s own negligence contributed to the accident?

5Regarding Q1, the Plaintiff says that there is no “reasonable evidence” upon which the jury could conclude that the Plaintiff was negligent while crossing the street.

6Meanwhile, the Defendant brings a motion to strike or amend portions of the following two jury questions:

Q2. If the Plaintiff has proven that she suffered past loss of income from the accident, in what amount do you assess her damages from December 16, 2014 onwards ( i.e. one week after the accident to present)?

Q3. If the Plaintiff has proven that she will suffer future loss of income or reduced earning capacity from the accident, in what amount do you assess her damages?

7Regarding Q2, first, the Defendant argues the question should be struck based on application of Rule 25.06(9)(b). I reject this argument. I ruled on that issue orally at the outset of the trial on January 16, 2023 and do not intend to revisit that ruling now.

8Moving on then. Regarding Q2, the Defendant further argues that the question regarding past income loss can only go to the jury if they first find as a fact that Ms. Berry would have worked as a PSW after the accident. The Defence says that the Plaintiff has not adduced any evidence about other jobs she might have obtained. They also say that the Plaintiff’s actuarial expert, Mr. David Wolgelerenter, assumed that she would have started working in 2016 such that there can be no past loss claim for the period between the accident and January 1, 2016.

9Regarding Q3, the Defendant argues that the question regarding future income loss cannot go to the jury because it has not been sufficiently particularized. They argue that the Defendant has not adduced any evidence about when Ms. Barry was expected to retire. They say the only evidence about her retirement date come from the actuary, Mr. Wolgelerenter, who assumed a retirement date of 65 years. In the alternative, the Defence argues that the jury must first find that the Plaintiff would have worked as a PSW after the accident, before deciding the matter of future income loss. The Defence says that the Plaintiff has not adduced any evidence about other jobs she might have had.

Applicable Legal Principles

10The Court of Appeal in M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, 109 O.R. (3d) 351, said at para. 51:

Whether a jury in a civil case should be asked to decide on a particular issue is a question of evidence. There must be “reasonable evidence” to allow a question to go to the jury. As Meredith J.A. in Milligan v. Toronto Railway (1908), 17 O.L.R. 530, [1908] O.J. No. 78 (C.A.), at para. 50:

Although the jury are the sole judges of fact they are such judges only in cases in which there is a reasonable question of fact to be determined. It is the duty of the Court to determine whether there is any reasonable evidence to go to the jury, upon any question of fact; and no such question can be rightly submitted to them until that question has been answered in the affirmative.

11The Court of Appeal explained that evidence of a “vague possibility” is not reasonable evidence sufficient to allow a question to be put to a jury. Rather, the evidence must be sufficient to support a verdict.

12In Walker v. Delic, [2001] O.J. No. 1425 (Ont. S.C.), the court stated the test, at para. 5, as follows:

[A] question need not be put to the jury unless there is some evidence on which a jury, acting judicially in accordance with that judge’s instructions on the law could reasonably make a choice in arriving at a finding.

13On matters of economic loss, a jury cannot be asked to speculate and pull a dollar figure out of thin air. In this regard, the following statement from the Ontario Court of Appeal in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, at para. 65, regarding the ability of a trial judge to quantify damages, applies with equal force to a jury:

[I]t is not open to a trial judge to postulate a method for the quantification of damages that is not supported by the evidence at trial. Nor is it open to a trial judge to employ an approach to the quantification of damages that the parties did not advance and had no opportunity to test or challenge at trial... To hold otherwise would sanction trial unfairness.

14Justice Charney applied these principles in Johnston v. Walker, 2017 ONSC 3370. He refused to put the question of the plaintiff’s loss of earning capacity to the jury since there was insufficient evidence on which a jury, properly instructed and acting judicially could reasonably calculate the damages claim. There was no evidence of the Plaintiff’s current annual income or loss of income. Therefore, putting the question to the jury “would invite them to speculate and pull a dollar figure out of thin air” (see: Johnston, at para. 10).

15In so holding, Justice Charney applied Ayub v. Sun, 2016 ONSC 6598 (Div. Ct.), at para. 62, in which the Divisional Court upheld the trial judge’s decision to refuse to put a question to the jury based on insufficiency of evidence, writing that “there must be some admissible evidence, upon which a jury properly instructed, could find a claim and calculate the claim” (see also Day v. Haiderzadeh, 2017 ONSC 7319 (SCJ), and Mundinger v. Ashton, 2019 ONSC 7161 (SCJ), at para. 17).

Application to Q1 re: contributory negligence

16The Defence argues that the standard of care expected of a pedestrian that his hit by a motor vehicle is that of “due care.” The defence accepts that that “due care” does not mean that the pedestrian has to exercise “extreme vigilance”: Coso v. Poulos, [1969] SCR 757 at p. 760. Essentially, the jury will be required to decide whether reasonably prudent person in the same circumstances as Ms. Barry would have exercised more care for their own safety than she did. The standard of care is measured by the conduct of the average person, not necessarily an extraordinarily conscientious or skilled person. In that regard, the right to proceed on a walk signal is not absolute and is still qualified by the duty to exercise due care while doing so: British Columbia Electric Railway Co. v. Farrer, [1955] SCR 757 at para 758.

17The Defence relies on the following evidence at trial that they say is relevant to the issue of contributory negligence and which they say satisfies their burden to provide reasonable evidence of contributory negligence:

a. The Plaintiff’s evidence that she was looking straight ahead while walking across the street; b. The Plaintiff’s evidence that she did not see the car until after it had hit her; c. The Plaintiff’s evidence that she has two phones, one in her pocket and one in her hand in her pocket; d. The Plaintiff’s evidence that she found her phone on the ground after the accident.

18The Defendant’s evidence was that she did not see the Plaintiff until she struck her.

19The Defence says that this is “reasonable” evidence upon which the jury could find that Ms. Barry did not look left before entering the crosswalk, did not look left while crossing the crosswalk, and was holding her phone in her hand at the time of crossing.

20The Plaintiff says that to find contributory negligence on the Defence theory, the jury would have to reject Ms. Barry’s evidence that she was cautious about crossing the street and, in the absence of any evidence, speculate about whether or not she looked left before doing so. They say that this does not satisfy the “reasonable’” evidence requirement.

21While I find that the Defence theory of contributory negligence is weak, there is reasonable evidence upon which the jury could find that Ms. Barry did not look left while entering or crossing the street. In this regard, the case is distinguishable from Rolley v. MacDonell, 2018 ONSC 6517 because, in that case, there was no evidence that the plaintiff failed to observe the defendant’s car before he began to cross”: para. 62. Here, there is evidence upon which the jury could conclude that Ms. Barry failed to observe Ms. Anantharajah’s car before she began to cross. She said as much in her testimony.

22Q1 regarding contributory negligence can be left to the jury.

Application to Q2 re: past income loss

23The Plaintiff adduced the following evidence at trial that is relevant to the matter of both past and future income loss and which she says satisfies their burden to provide reasonable evidence on which a properly instructed jury could quantify the losses for past and future income.

a. The Plaintiff’s evidence about her pre-accident education and employment, including the fact that she did not complete high school, she obtained a PSW diploma two years before the accident but never worked as a PSW, and that she was working temporary labour jobs and receiving social assistance at the time of the accident. b. Evidence from the Plaintiff’s father that the Plaintiff’s career goal was to “work as a PSW” but that she was doing odd jobs in the meantime. c. The Plaintiff’s brother’s evidence that Ms. Barry was working odd jobs at the time of the accident but her goal was to work as a PSW. d. The Plaintiff’s pre-accident income for the years 2011 through 2014, and post-accident income for the years 2015-2022. e. Mr. Wolgelerenter’s evidence about the value of Ms. Barry’s past income loss, based on the assumption that she would have been working as a PSW (either full-time or part-time) between January 1, 2016 and the date of trial. Mr. Wolgelerenter estimated that Ms. Barry’s past income loss ranges from $105,000 to $210,000, after reducing the past income loss by 30% as required by law. f. Mr. Wolgelerenter’s evidence about the present value of Ms. Barry’s future income loss, based on the assumption that she would be working as a PSW (either full-time or part-time) from the date of trial until age 65. Mr. Wolgelerenter estimated that Ms. Barry’s future income loss ranges from $501,000 ($18,720 of annual income in the absence of the accident, multiplied by 26.779) to $1,002,000 ($37,440 of annual income in the absence of the accident, multiplied by 26.779). g. Mr. Wolgelerenter evidence that the jury would have to award $26,779 for every $1,000 of future lost income, which he called the “actuarial multiplier”, based on the assumption that she would work under age 65. h. Mr. Wolgelerenter’s evidence that PSW’s make an average hourly wage of $18.00, whereas minimum wage is $16.55 per hour.

24Regarding Q2, I find that there is sufficient information before the jury to leave the question about past income lost with them, without any need for amendment. In my view, the Plaintiff has satisfied the burden of providing reasonable evidence to ground her claim for past income loss. This evidence consists of information about her education and employment history, pre- and post-accident earnings, and the evidence from the actuary about past income loss if she were to have worked as a PSW from 2016 until trial.

25I refuse to find that the Plaintiff must adduce evidence of every single possible employment possibility to ground her claim for past income loss. She is not required to have her actuary provide calculations based on every possible scenario that the jury might find. In fact, she is not required to adduce actuarial evidence at all: Fiddler v. Chiavetti, 2010 ONCA 210 at para. 64.

26In my view, on the evidence before it, the jury has reasonable evidence to decide whether Ms. Barry was capable of working after the accident and as of what date, as well as the kind of work she might have had available to her. For example, even if they reject her evidence that she would have worked as a PSW (and therefore her actuary’s evidence about past income loss), they have other evidence from which they can calculate her income loss if she were working in temporary jobs, or at minimum wage.

27Putting Q2 about past income loss to the jury does not invite speculation.

Application to Q3 re: future income loss

28Regarding Q3, at the outset, I note that the standard of proof for future damages is more relaxed than the balance of probabilities: Schrump v. Koot.

29In this context, the Plaintiff has satisfied the burden of providing reasonable evidence, which consists of information about her education and employment history, pre- and post-accident earnings, and the evidence from the actuary about future income loss if she were to work as a PSW from 2016 until age 65. This is clearly distinguishable form the situation in Ayub where the plaintiff’s evidence was “non-specific and speculative at best and non-existent at worse:” Ayub v. Sun, 2016 ONSC 6598, para. 61. In that case, unlike the situation here, the plaintiff had not adduced any evidence about his employment prospects, the type of work he sought to obtain, or the skills he had: para. 57.

30I refuse to find that the Plaintiff must adduce evidence about every single future employment possibility to ground her claim for income loss. She is not required to have her actuary provide calculations based on every possible scenario that the jury might find. Requiring the plaintiff to do so would have made the trial longer and more complex, which would have been disproportionate to the claim. Indeed, as I mentioned before, actuarial evidence is not strictly required to prove future income loss.

31In my view, on the evidence before it, the jury has reasonable evidence to decide whether Ms. Barry was capable of working after the accident and as of what date, as well as the kind of work she might have had available to her. For example, even if they reject her evidence that she would have worked as a PSW (and therefore, the actuary’s evidence on past income loss), they have other evidence from which they can calculate her income loss if she were working in temporary jobs, or at minimum wage.

32While there is no concrete evidence about Ms. Barry’s expected retirement date, I find that this is not fatal in the context of this case. Ms. Barry was 21 years old at the time of the accident and had very little pre-accident employment history. In my view, it would have added little for her to have testified that she intended to work until a particular age. There are very few people in their early 20s who could hazard even a remotely reliable guess about their retirement age. Her evidence in this regard would have been largely speculative.

33In my view, the jury is able to draw an inference about the Plaintiff’s likely retirement date based on the totality of the evidence. They may find that she would have worked to a “normal” retirement age of 65, or something more or less than that. They can make this assessment based on the evidence about her past work history (including her problems at work), historic income, as well as the evidence about her overall condition, her motivation, and her financial resources and means.

34While the actuarial calculator provided by the expert was based on a retirement age of 65 years, the jury can be warned not to apply this rate if they find that she would have retired earlier or later. They can be told how to estimate what the present value of her income loss would have been based on different scenarios.

35Putting Q3 about past income loss to the jury does not invite speculation.

Conclusion

36For the foregoing reasons, the motions are dismissed. All the questions shall go to the jury.

37I will address the costs of this motion as part of the costs of the trial.