Court File and Parties

Court File No.: CV-14-502664
Date: 2025-03-17
Ontario Superior Court of Justice

Re: Sabrina Maher, Plaintiff/Moving Party
-and-
Marija Kiric, John Doe and the Superintendent or Financial Services, Defendants/Responding Party

Before: Lorne Brownstone
Counsel:

• Sylvia Guirguis and Lazar Andjelkovic, for the Plaintiff/Moving Party
• R.K. McCartney and Jake Franchi, for the Defendant Marija Kiric/Responding Party

Heard: 2025-03-17

Endorsement

Introduction

[1] There are two pre-trial evidentiary issues: first, the use of a demonstrative aid in the plaintiff’s opening address, and second, the order of witnesses to be called by the plaintiff.

Demonstrative Aid

[2] The plaintiff’s counsel wishes to rely on a demonstrative aid in their opening address to the jury, and introduce it into evidence in the trial. The defendant opposes its use in the opening address. This endorsement considers only its use in the opening address.

[3] The proposed aid is a chronological chart, setting out certain events on a timeline. The events comprise the years of the plaintiff’s schooling and employment, the date of the accident at the root of this trial, and the dates of other accidents and falls the plaintiff suffered (both before and after the accident).

[4] The defendant notes that the purpose of an opening address is to give the trier of fact a general idea of the evidence to come. It is to make it easier for the jurors to understand what is to follow. It is not to make argument: Hoang v. Vicentini, 2012 ONSC 1067 at paras. 10, 12.

[5] The principles governing the use of demonstrative evidence in general, as set out in Draper v. Jacklyn et al., [1970] SCR 92, Woods v. Jackiewicz, 2019 ONSC 2069 at paras. 11-13, and Robichaud et al. v. Constantinidis et al., 2019 ONSC 5396, are as follows:

a. The decision on whether to admit demonstrative evidence is within the discretion of the trial judge;
b. Demonstrative evidence must not be a form of advocacy;
c. It must accurately and truly represent the facts, and not be misleading, inaccurate or inflammatory;
d. The evidence must be necessary;
e. There is a heightened risk of misuse of demonstrative evidence where the trier of fact is a jury;
f. Demonstrative evidence that assists the trier of fact, whether judge or jury, in better understanding evidence should be encouraged;
g. Demonstrative evidence should not be permitted when its prejudicial value outweighs its probative effect.

[6] An aid should not be used in an opening address to impart information on issues that are subject to controversy: Adair, G. D. E., On Trial: Advocacy Skills, Law and Practice, 2nd ed. (Markham, Ont: LexisNexis Butterworths, 2004). An aid, such as a photograph, may be found to be of minimal assistance and to risk evoking sympathy in a jury in an opening address, in which case it is appropriate to disallow the aid: Hayes v. Symington, 2015 ONSC 7349 at paras. 15-18.

[7] As set out in Hayes at para. 5, the following four-part test applies in assessing whether demonstrative aids should be used in an opening address:

a. Will counsel proposing to use the demonstrative aid undertake to prove it?
b. Is it likely relevant?
c. Is it likely to assist the trier of fact in understanding the case?
d. Is there anything unusually prejudicial about the demonstrative aid that would require it to be excluded?

[8] The plaintiff submits that the aid will assist the trier of fact in placing the evidence of witnesses and documentation that stretch over nearly 17 years into an organized and workable structure. None of the evidence is advocacy, and the plaintiff undertakes to prove all underlying facts. Given the factual nature of the data contained in the aid, the plaintiff states there is no prejudice to the defendant.

[9] The defendant argues that the chart is prejudicial in that it is incomplete, it should contain pre-2008 information, and it should not say “head injury”. The defendant submits that an opening statement should be a brief summary to orient the jury; nothing would be lost for the plaintiff if she were to introduce the aid after she testifies. Counsel for the defendant acknowledges that he would not object to any of the information contained in the chart being introduced in an opening statement; he objects to the information taking the form of a chart.

[10] I find that the demonstrative aid does not contain any advocacy, nor does it contain technical evidence that risks oversimplification. The one area that may cause potential confusion to the jury is the use of the term “head injury”. I understand that a significant issue between the parties is whether a brain injury occurred as a result of the October 2013 accident. Although “head injury” does not equate to “brain injury”, the jury is not yet alive to this distinction. I therefore find that the references to “head injury” in the chart are potentially prejudicial.

[11] Given the number of falls and accidents sustained by the plaintiff, and the length of time that has passed since the accident at the root of the case, I find that use of the aid in the opening statement will promote trial efficiency and assist the trier of fact in organizing information that will be received during trial: R. v. Kanagasivam, 2016 ONSC 2250 at para. 45.

[12] It is the use of the term “head injury” that is prejudicial. That term shall be removed. The aid may be used in the opening statement without the term “head injury.”

Order of Witnesses

[13] The plaintiff proposes to call seven or eight witnesses before she testifies. The witnesses are fact witnesses, not experts. The defendant asks the court to order the plaintiff to testify first.

[14] The defendant relies on some cases where the plaintiff sought to call medical witnesses before the plaintiff testified: Vanderloo v. Doge, [1995] O.J. No. 4715; Mizzi v. DeBartok, 9 O.R. (3d) 383.

[15] The relevant considerations have been helpfully explained by Leitch J. in Ismail v. Fleming, 2018 ONSC 5978 at para. 12 as follows: (footnotes omitted)

In my view, general observations and principles applicable to determination of such disputes concerning the order of trial witnesses include the following:

In the usual course of most trials dealing with personal injury claims, the plaintiff is called as the first witness for the purpose of “setting the stage” for evidence to follow. The orderly presentation of a case normally will suggest that approach as the preferable practice.

However, it must be remembered that a litigant generally has the right to have his or her case submitted to the trier as his or her counsel thinks advisable, in the interests of his or her client. A trial judge should not lightly interfere with that right, effectively taking conduct of a litigant’s case into the judge’s own hands, and out of the hands of counsel.

Pursuant to his or her general obligation to maintain control over a trial proceeding, a trial judge nevertheless has jurisdiction to order that a plaintiff advancing a personal injury claim testify first, at the outset of trial, before the presentation of evidence from treating health care practitioners. For example:

the court may believe the plaintiff is such a key witness that he or she should tell his or her story as best he or she can at the outset of trial, to assist the trier in making sense of the evidence, avoid confusion and arrive at a just verdict; and/or

the court may accept that cross-examination of expert witnesses may be too difficult without prior testimony from the plaintiff to lay the proper foundation for opinion-related questioning.

However, the making of an order requiring a plaintiff advancing a personal injury claim to testify first, before any evidence of health care practitioners is adduced, lies within the discretion of the trial judge. It is not a general rule of absolute application. Each case must be dealt with on its own merits.

In that regard, it should be remembered that the plaintiff in a personal injury action may not always be the best person to provide initial background to a case at trial. For example:

a claimant may not always understand his or her impairment, or be capable of expressing it as well as a health care professional; and/or

the prior testimony of a health care practitioner may help a trier understand and appreciate possible impairments affecting a claimant’s ability to testify, and/or the manner in which the claimant may testify.

Moreover, if plaintiff counsel chooses to call a participating expert or litigation expert before a plaintiff, and subsequent testimony of the plaintiff reveals relevant and probative facts which were unknown to that expert, the trier may find that expert’s opinion less reliable. If anyone is prejudiced in such circumstances, as the result of plaintiff counsel’s choice, it may be the plaintiff.

[16] The defendant argues that the plaintiff is a key witness and should be required to be called first to allow the jury to get a sense of the evidence. The defendant argues that it will be prejudiced in the cross-examination of most of the lay witnesses, who are former employers, roommates, master’s instructor, colleague(s) in master’s program and friends. The defendant will be forced to put hypothetical questions to the witnesses, that may or may not be borne out by the plaintiff’s evidence.

[17] The plaintiff says she will exclude herself from the trial, and abide by the witness exclusion order, so that she will not discuss the evidence given by the witnesses with her counsel or the witnesses. This will obviate the need for an instruction to the jury about the order of witnesses potentially affecting the credibility and reliability of the plaintiff’s evidence.

[18] The concern of the case law relied upon is largely about the trier of fact being put in the best position to understand the plaintiff’s position if the trial proceeds with the plaintiff testifying before the medical evidence: Wilson v. Quinn, 2001 O.J. No. 4515 at paras. 6 and 9.

[19] The plaintiff’s decision about order of witnesses in this case is a strategic decision; not one necessitated by scheduling or for other reasons.

[20] I am loathe to interfere with the plaintiff’s presentation of her case. I decline to order the plaintiff to testify first. However, if it becomes apparent that this decision is creating trial inefficiency or prejudice or difficulty to the defendant in cross-examining the witnesses, the issue may be revisited at the defendant’s request or on the court’s own motion.

[21] There will be an order excluding witnesses. The order extends to the plaintiff until she is called to testify.

Lorne Brownstone
Date: 2025-03-17