Court File and Parties

Court File Nos.: CV-17-133462; CV-17-133972; CV-16-00128083

Date: October 7, 2025

Superior Court of Justice

Court File No.: CV-17-133462

Between:

Samantha McFee and James McFee, Plaintiffs

– and –

Bharrat Sutram, John G. Rae and Lakeview Elevator Inc. (Corporation Number 1286550), Defendants

Counsel:

• D. Romaine, T. Boland and M. Connolly, for the Plaintiff, Ms. McFee
• J. Schrieder, for Mr. Sutram
• A. Rachlin and C. Painter, for Mr. Rae and Lakeview

Court File No.: CV-17-133972

Between:

Janki Sutram, by her litigation guardian, Samantha Sutram Khaja

Eshaan Khaja, by his litigation guardian, Samantha Sutram Khaja

Amrita Prakash

Samantha Sutram Khaja, personally

Meran Khaja

Sabrina Sutram

Radha Sutram, by her litigation guardian, Samantha Sutram Khaja

Archanie Sutram, by her litigation guardian, Samantha Sutram Khaja

Plaintiffs

– and –

Bharrat Sutram, Samantha C. McFee, James I. McFee, John G. Rae and Lakeview Elevator Inc.

Defendants

Counsel:

• F. Chiu, for the Plaintiffs
• J. Schrieder, for Mr. Sutram
• A. Rachlin and C. Painter, for Mr. Rae and Lakeview

Court File No.: CV-16-00128083

Between:

Oomah Roopnaraine, Plaintiff

– and –

Bharrat Sutram, Samantha McFee, John G. Rae and Lakeview Elevator Inc.

Defendants

Counsel:

• J. Schneider, for the Plaintiff
• J. Schrieder, for Mr. Sutram
• A. Rachlin and C. Painter, for Mr. Rae and Lakeview

Heard: September 26, 2025

Ruling on Motion to Strike Jury Notice

The Honourable Justice Sunil S. Mathai

Introduction

[1] The parties made their closing addresses to the jury on September 25, 2025. The final closing address to the jury, made on behalf of Mr. Rae, ended at approximately 4:00 p.m. At that time, I excused the jury and advised them that my final charge would begin on Friday, September 26, 2025, at 12:00 p.m.

[2] After the jury retired, counsel for Ms. McFee expressed serious concerns with Mr. Rachlin's closing address and requested time to consider their position. As a result, I ordered the parties to appear before me the next morning to address the issue. Electronic excerpts of the impugned address were sent to the parties on the evening of September 25, 2025.

[3] The following day, the plaintiffs identified 19 objectionable statements in Mr. Rachlin's closing address and requested that the jury notice be struck. Appended to these reasons are the impugned portions of the closing address (Schedule A).

[4] After hearing oral argument, I dismissed the motion to strike the jury notice with reasons to follow. I began my charge to the jury on the afternoon of Friday, September 26, 2025, and completed the charge on the morning of Monday, September 29. The portion of the charge that was read to the jury on Friday afternoon included explicit corrective instructions intended to address what I found to be the most objectionable portions of Mr. Rachlin's closing address.

[5] On the afternoon of September 29, 2025, the jury returned a verdict finding Mr. Sutram and Mr. Rae liable in negligence and apportioned liability as follows: Mr. Sutram – 93% and Mr. Rae – 7%.

[6] What follows below are my reasons for dismissing the motion to strike the jury notice.

Background Facts

[7] A summary of the facts of the three actions are detailed in my duty of care decision (see McFee v. Sutram et al., 2025 ONSC 5526). Where necessary, I have included additional facts in my analysis to give context to this ruling.

The Impugned Closing

[8] The 19 impugned portions of the closing address can be organized into the following six categories (examples included):

Category 1 – Appeals to the jurors' emotions:

"…do not make Mr. Rae a victim against or a further victim by holding him partly responsible for another man's poor judgment".

Category 2 – Asking the jurors to consider irrelevant factors:

"…and I submit to you, that's unreasonable, and the implications of that are I mean, well there are many, but just to give you an example, if a motorist is driving along the road anywhere, and someone engages an illegal act, if you if the person [sic] who is the victim of the illegal act doesn't somehow take steps themselves, then they're responsible. For driving along and somebody is passing you, suddenly, even though you officially have the right of way, you have to take steps, and if you don't take the right steps, you're responsible. And I say to you, that's an unreasonable standard of care to expect of motorists in our province."

"…The implication of that is that any time any motorist in Ontario sees another motorist breaking the law, they have to yield just in case something bad is going to happen."

Category 3 – Misstatements of law:

"The plaintiffs are asking you to make Mr. Rae responsible for Mr. Sutram's wrongful, unlawful acts…."

"You're going to have to decide what the standard that would apply to him was and whether he breached it…."

"And you're being asked to conclude that he had the responsibility to save Mr. Sutram from his own illegality".

Category 4 – Statements regarding the absence of evidence:

"Ms. D'Addario, the plaintiff's human factors expert, explained to you the 85-95 percentile. So, you cannot guess what a reasonable person would have done. You should have been provided with information. What the reasonable range of outcomes is. It's not enough to say, Mr. Rae should have acted reasonably and what he did wasn't. You have to have something to compare that to know what's reasonable in our community, and you don't have that".

"You don't know what reasonable rates of braking would have been for somebody in Mr. Rae's position had the reasonable response been to brake. Those are pieces of information that I'd suggested to you could have been given information about that from an engineer, and two engineers were here, but they didn't give you that information".

Category 5 – Providing an explanation for Mr. Rae's conduct when he did not testify:

"I'd suggest to you, you don't need him to tell you why, as a matter of common sense as an estimate of one and a half football fields from a line that's not marked on the road in the dark at 70 kilometres per hour it might not be accurate".

"As a matter of common sense, you don't need Mr. Rae to come here and tell you that at 70 kilometres per hour in the dark, he's realized it might be hard for him to know what exactly what the distance was".

"I suggest you consider that doing what he did, staying the course, behaving in a predictable way so Mr. Sutram could do what he was going to do, was reasonable response. It might not have been the only possible response that night, but it was the only response that didn't have clear risks associated with it in the moment".

Category 6 – Pejorative comment about Mr. Sutram:

"In the moment, all [Mr. Rae] knows is there's this crazy guy beside him trying to overtake him in the wrong lane on a solid double line".

Governing Principles

(i) Closing Addresses to the Jury

[9] As has been said on many occasions, a civil jury trial is not a "tea party". Counsel's role in a civil trial jury trial is partisan and, in fulfilling their partisan role, counsel have a right, and arguably a duty, to make an impassioned and zealous address on behalf of their client (see Gilbert v. South, 2015 ONCA 712, 127 O.R. (3d) 526, at paras. 19–20; Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.); Landolfi v. Fargione (2006), 79 O.R. (3d) 767 (C.A.); Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385). Because counsel have this obligation, they are often given wide latitude in their closing addresses to the jury.

[10] Although rhetoric which verges on the extravagant may be used by counsel, there is a general rule that the language should not prejudice the cause of an opponent in the minds of the jury. Causing such prejudice leads to an injustice (see Stewart v. Speer, [1953] O.R. 502 (C.A.), at p. 508; Brochu, at para. 17). With this concern in mind, the jurisprudence has developed certain limitations on impassioned and zealous advocacy. For example, comments to a jury which impede the objective consideration of the evidence by the jurors, and encourages assessment based on emotion or irrelevant considerations, are objectionable. Such comments are "inflammatory", in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning (see Landolfi, at para. 28; Brochu, at paras. 15–16).

[11] In Geoffrey D.E. Adair's text, On Trial: Advocacy Skills Law and Practice, 2nd ed. (Markham, ON: LexisNexis Canada Inc., 2004), the author provides a helpful list of some of the limitations to a closing address (see also OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2019 ONSC 3882, 35 C.P.C. (8th) 352, at para. 21). Those limitations are described as follows:

(a) Misstatements on the evidence: "It is trite to say that such evidence as is referred to by counsel must be accurately stated to the jury" (at p. 466).

(b) Invitations to the jury to consider irrelevant matters: This is "a most serious transgression" as it tends to sway the jury from their proper task of deciding the case on the evidence (at p. 467).

(c) Comments that inform the jury of factual matters not in evidence: Any attempt by counsel to give evidence before the jury is, of course, highly inappropriate (at p. 470).

(d) Statements that call the attention of the jury to the consequences of their verdict: The consequences of a verdict are not properly within the scope of the jury's concern (at p. 472).

(e) Unfair comment on the evidence: Counsel must refrain from comment upon the evidence that is unfair; it is the duty of the advocate not to take unfair advantage of the evidence (at p. 475).

(ii) Striking a Jury Notice

[12] The right to a civil trial by jury is a fundamental substantive right and parties must not be deprived of it lightly (see Taylor v. Zents, 2025 ONCA 662, at para. 57; King v. Colonial Homes Ltd., [1956] S.C.R. 528, at p. 533; Penate v. Martoglio, 2024 ONCA 166, 496 D.L.R. (4th) 50, at para. 18). Discharging a jury is a remedy of last resort and a trial judge may only strike a jury notice if the prejudice to a party is so significant that a corrective instruction will not cure the prejudice (see Taylor, at paras. 57–58; Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, at paras. 17, 23; Penate, at para. 19).

[13] A trial judge's decision to discharge a civil jury is discretionary. The Court of Appeal for Ontario has adopted a two-step test to guide a trial judges' exercise of discretion. The trial judge must ask two questions: (1) did counsel's comments prejudice the opposing party?; and (2) if the answer to (1) is "Yes", was the prejudice was so severe that issuing a corrective instruction to the jury would not cure it (see Penate, at para. 19; Hamstra, at paras. 17, 23)?

[14] A party seeking to discharge the jury has a heavy burden and the trial judge must find that there are substantial reasons for discharging the jury (see Penate, at para. 19). In most cases, discharging the jury is not appropriate because the trial judge can issue a correcting instruction to address any improper statements from counsel (see Penate, at para. 19; Hamstra, at paras. 23–25). Juries are generally capable of following such instructions which can often remedy inflammatory statements, misstatements of the evidence and misstatements of the law (see Penate, at paras. 18–19; Landolfi, at paras. 105–107; Brochu, at paras. 24–27; Hamstra, at paras. 23–25; Taylor, at para. 59).

Application of Governing Principles

(i) Category 1 and Category 2 Statements

[15] I find the Category 1 and Category 2 comments to be the most problematic. These statements cause prejudice to the plaintiffs.

[16] There are two problems with Mr. Rachlin's submission that if the jury were to find Mr. Rae negligent, then such a verdict would "further" victimize Mr. Rae. First, it is false. The jury's verdict holds Mr. Rae liable if they believe that he breached the standard of care of a reasonable and prudent driver in Mr. Rae's situation. This does not make him a "victim". Rather, the finding merely holds him to account for his actions or inaction.

[17] Second, Mr. Rachlin's submission unnecessarily personalizes the jury's decision-making process and encourages them to base their decision on emotion. As is standard for all jury charges, the jury is instructed to assess the evidence objectively and impartially, without prejudice or sympathy to the parties. Mr. Rachlin's comment about victimizing Mr. Rae invites the jury to decide the case based on sympathy for Mr. Rae. This portion of Mr. Rachlin's closing address exceeds the bounds of what is permitted by zealous advocacy.

[18] With respect to the Category 2 statements, I find that the statements invite the jury to find that Mr. Rae met the standard of care for reasons that are unrelated to the evidence heard at trial. The statements explicitly ask the jury to consider broader implications when deciding whether Mr. Rae should be held liable in negligence. This is an irrelevant consideration. The jury was only called upon to determine whether, in the circumstances of this case, Mr. Rae fell below the standard of care and, if so, whether the breach of the standard of care was a cause of the accident. I find that these statements also exceed the bounds of zealous and impassioned advocacy.

[19] In oral submissions, Mr. Rachlin candidly admitted that the bolded portion of the following statement was objectionable and that an explicit corrective instruction was necessary to remedy the prejudice caused by the statement:

"…For driving along and somebody is passing you, suddenly, even though you officially have the right of way, you have to take steps, and if you don't take the right steps, you're responsible. And I say to you, that's an unreasonable standard of care to expect of motorists in our province." (emphasis added)

[20] Mr. Rachlin's admission is well received. As noted in my duty of care decision, there is a long line of cases that have established that the standard of a reasonable and prudent driver requires a driver to avert to risks created by other users of the road and act in a way that diminishes the risks created by others. This is not an unreasonable standard; this is what the law of negligence requires.

[21] With respect to the Category 1 and Category 2 statements, I found that a specific corrective instruction was necessary to remedy the prejudice and that it was necessary to include that corrective instruction near the beginning of my final charge to the jury. The explicit corrections, and all other changes I made to the jury charge are included in Schedule B to these reasons.

[22] As reflected in Schedule B, the final charge identified the objectionable Category 1 and 2 statements and instructed the jury that: (a) the jury's verdict would not make anybody a victim; (b) the jury was required to assess the evidence objectively, impartially and without sympathy; (c) the jury was only deciding whether, on the facts of this case, Mr. Rae breached the standard of care and whether that breach was a cause of the accident; (d) concerns about the broader impact of the jury's verdict were not relevant and should have no role in the jury's decision-making process; and (e) the standard of care, as defined in the charge, is not unreasonable.

(ii) Category 3 Statements

[23] With respect to the Category 3 statements, the plaintiffs allege that Mr. Rachlin's closing address misstated the law. As is typically the case, the jury was instructed that they are to follow my instructions with respect to the law. Many of the closing addresses to the jury reminded them that, to the extent that there was any conflict between counsel's recitation of the law and my instruction on the law, then my instruction was to prevail.

[24] The following examples best illustrate the plaintiffs' concerns with the Category 3 statements:

"The plaintiffs are asking you to make Mr. Rae responsible for Mr. Sutram's wrongful, unlawful acts…."

"And you're being asked to conclude that he had the responsibility to save Mr. Sutram from his own illegality".

"You're going to have to decide what the standard that would apply to him was and whether he breached it…."

[25] The first two statements are, technically speaking, wrong in law. The plaintiffs were not seeking to make Mr. Rae liable for Mr. Sutram's unlawful acts. The plaintiffs alleged that Mr. Rae was negligent because his own actions and inactions fell below the standard of a reasonable and prudent driver. Similarly, the plaintiffs did not seek liability against Mr. Rae for failing to, "save Mr. Sutram from his own illegality". I note, however, that during Mr. Rachlin's cross-examination of Ms. McFee's expert, Ms. D'Addario, the witness admitted that the plaintiffs' implicit criticism of Mr. Rae was that he did not act to save Mr. Sutram from his illegal passing maneuver. No objection was taken to this line of questioning. While these statements were technically incorrect, the prejudice caused by these statements was negligible. In my view, the jury understood that these statements were rhetorical flourishes.

[26] That being said, to ensure that the jury did not misunderstand their task, I modified the charge to make it clear that in answering Question 3, the jury was evaluating whether Mr. Rae fell below the standard of care; the jury was not being asked to determine whether Mr. Rae was required to "save" Mr. Sutram from his illegal passing manoeuvre. I decided that this was the best method to resolving the issues raised by these statements because: (a) the jury was instructed to follow my directions on the law; and (b) given the limited prejudice caused by the statements, it was unnecessary to explicitly correct the misstatement and risk the overall balance to the charge. On this latter point, I was mindful that repeatedly correcting Mr. Rachlin's closing address might cause the charge to be unbalanced in favour of the plaintiffs.

[27] With respect to the third example, the jury was not being asked to determine the appropriate standard of care. Rather, the jury was required to determine whether Mr. Rae fell below the standard of a reasonable and prudent driver in like circumstances (see Ryan v. Victoria (City), [1999] 1 SCR 201, at paras. 21, 28–29). While Mr. Rachlin's statement was technically incorrect, I did not find it necessary to modify the charge to address this minor misstatement. In my view, the charge sufficiently instructed the jury on the issue they had to decide: whether Mr. Rae fell below the standard of care of a reasonable and prudent driver and whether any breach of the standard of care was a cause of the accident.

(iii) Category 4 Statements

[28] The Category 4 statements relate to the absence of evidence. With one exception, these statements are not objectionable. At their heart, these statements focus the jury's attention on the absence of evidence that Mr. Rae submits should be considered when determining whether the plaintiffs have met the burden of proof. The statements do not suggest to the jury that such evidence is legally necessary to establish a breach of the standard of care or causation. As conceded by the plaintiffs in oral submissions, the jury is entitled to consider the absence of evidence in determining whether, on a balance of probabilities, the plaintiffs have met their burden of establishing a breach of the standard of care and that the breach was a cause of the accident.

[29] While I do not find these submissions objectionable, I found it necessary to modify the charge to ensure that the jury understood that: (1) they could consider the absence of evidence in determining whether the plaintiffs had met their burden of proof; and (2) as a matter of law, the plaintiffs were not required to lead the type of evidence identified by Mr. Rachlin as "missing" and that it was the jury who would decide whether the absence of evidence had an impact on their decision.

[30] The one exception relates to Mr. Rachlin's statement that some, "information wasn't read in from [Mr. Rae's] discovery evidence". This was an improper submission. The plaintiffs were free to rely on any portion of the discovery evidence and Mr. Rae was entitled to request that additional discovery evidence be given to the jury to provide context (see r. 31.11(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194). Mr. Rae did not make any such request. The jury should not have been told that there were other parts of the discovery evidence that were not presented to them. Despite the improper nature of Mr. Rachlin's statement, I did not explicitly address it in the final charge because the charge adequately instructed the jury on the discovery evidence, the use of that evidence and, in other parts of the charge, I reminded the jury that they were not entitled to speculate. In my view, this adequately addressed the prejudice caused by this statement and maintained a proper balance in the jury charge.

(iv) Category 5 Statements

[31] With respect to the Category 5 statements, some are objectionable, while others are not. I will provide some context to better understand the issues at play.

[32] Counsel for Ms. McFee and Ms. Roopnaraine both read in portions of Mr. Rae's discovery evidence. The evidence read in included the following evidence from Mr. Rae's discovery:

(a) That he first observed Mr. Sutram's vehicle when Mr. Rae was about a hundred feet north of St. Johns Side Road;

(b) That Mr. Sutram's vehicle was directly behind Mr. Rae's vehicle at the part of Warden where it was level and some distance in length;

(c) Mr. Rae was not concerned when Mr. Sutram tried to pass him;

(d) Mr. Sutram started to pass Mr. Rae well before the accident hill started to slope upwards. Mr. Rae estimated that Mr. Sutram first attempted to pass him about 150 yards before the slope of the accident hill began while the two vehicles were on a flat portion of Warden;

(e) If Mr. Rae had taken his foot off of the gas or braked, then Mr. Sutram could have gotten back into the northbound lane in front of Mr. Rae; and

(f) Mr. Rae did not believe there was reason to slow down because there was no oncoming traffic in the southbound lane.

[33] In addition, the jury was also read a correction provided by Mr. Rae on September 5, 2025, just three days before the trial was scheduled to commence. That correction is described in the final charge as follows:

Mr. Rae provided a correction to his discovery answer that Mr. Sutram started to pass Mr. Rae about 1.5 football fields before the change in grade to the accident hill began. In the correction to the discovery evidence, Mr. Rae states that he does not know where Mr. Sutram pulled out to pass in relation to the change in grade as it was dark and there were no real visual cues to allow him to determine this.

[34] Mr. Rae did not testify at trial. As I noted in my oral decision on the availability of an adverse inference, the jury was instructed that they were entitled, but not required, to make an adverse inference against Mr. Rae for failing to testify. Some of Mr. Rachlin's Category 5 statements amount to a plea that the jury need not draw an adverse inference because common sense provided an explanation for rejecting some of Mr. Rae's discovery evidence. For example:

"I'd suggest to you, you don't need him to tell you why, as a matter of common sense as an estimate of one and a half football fields from a line that's not marked on the road in the dark at 70 kilometres per hour it might not be accurate".

"As a matter of common sense, you don't need Mr. Rae to come here and tell you that at 70 kilometres per hour in the dark, he's realized it might be hard for him to know what exactly what the distance was".

[35] As noted in the charge, the jury was free to accept all, some, or none of Mr. Rae's discovery evidence and they were entitled not to draw an adverse inference. The statements identified above simply provide a commonsense reason for why some of Mr. Rae's discovery evidence could be rejected.

[36] On the other hand, Mr. Rachlin also made statements that invited the jury to speculate on why Mr. Rae did not slow down to allow Mr. Sutram to re-enter the northbound lane:

"I suggest you consider that doing what he did, staying the course, behaving in a predictable way so Mr. Sutram could do what he was going to do, was [a] reasonable response. It might not have been the only possible response that night, but it was the only response that didn't have clear risks associated with it in the moment".

"Do not make him responsible if you conclude that in the moment, what he did, which was to stay the course, be predictable, and allow Mr. Sutram to do what he needed to do, was a reasonable response".

[37] There was no evidence presented to the jury that would permit them to make a finding that Mr. Rae was attempting to be, "predictable…and allow Mr. Sutram to do what he needed to do". To be clear, there was evidence establishing that Mr. Rae maintained his speed and did not slow down; however, the only evidence on the reason for this course of conduct was from Mr. Rae's discovery evidence. Whether intended this way or not, Mr. Rachlin's submission was an invitation for the jury to speculate on why Mr. Rae "stayed the course".

[38] During discovery, Mr. Rae testified that he did not slow down because he saw no oncoming traffic in the southbound lane. This was the only evidence available to the jury to explain why Mr. Rae "stayed the course". While the jury was free to reject Mr. Rae's discovery evidence, the jury was not entitled to speculate on any other reason why Mr. Rae decided not to slow down. As a result, I modified the charge to make it clear that, while the jury was not required to accept Mr. Rae's discovery evidence, they could not speculate on why Mr. Rae decided not to slow down. The final charge also made it clear that the jury was entitled, but not required, to make an adverse inference that any testimony Mr. Rae would have given would not have assisted his defence. In my view, modifying the jury charge in this way was sufficient to address the prejudice caused by these statements.

(v) Category 6 Statement

[39] I find that Mr. Rachlin's description of Mr. Sutram as "crazy" does not cross the line into impermissible rhetoric. Certainly, the statement could have been made with more care, but it was not lost on the jury that Mr. Sutram's driving was exceptionally dangerous. The jury was also aware that Mr. Sutram admitted that he was negligent and mostly responsible for the accident. While the use of "crazy" was ill advised, it was a rhetorical device that was just barely within the bounds of permissible advocacy as it did not, on the facts of this case, cause any real prejudice to the plaintiffs or Mr. Sutram. I believed that the jury would have understood this statement to be a description of Mr. Sutram's driving, not a description of his person.

[40] That said, I feel obligated to remind counsel to be extremely cautious when using colloquial terms like "crazy". Almost without exception, the term is used in a pejorative sense and meant to denigrate people with mental illnesses. To be clear, this is not what Mr. Rachlin intended; however, counsel would be wise to remove the word "crazy" from the lexicon of rhetorical devices used in court.

Conclusion

[41] As described above, I found some of Mr. Rachlin's statements to be objectionable. Other statements were not objectionable, but nevertheless, they caused me to modify the charge to ensure that the jury appreciated the legal rules applicable to their task.

[42] Where the statements were objectionable and caused prejudice, I modified the charge to either: (a) explicitly address the impugned statements; or (b) address the objectionable statement without explicitly identifying that it was an improper submission. In the former situation, the explicit instruction, which the jury was required to follow, was sufficient to address the prejudice to the plaintiffs. In the latter situation, I decided that modifications to the charge would address the minimal prejudice caused by the impugned statement while still maintaining a balanced charge.

[43] In my view, the final jury charge sufficiently addressed the prejudice caused by the various offending statements. As a result, I dismissed the plaintiffs' motion to strike the jury notice.

The Honourable Justice Sunil S. Mathai

Released: October 7, 2025

Amended October 7, 2025

Paragraph 39 has been amended from "the jury was aware that Mr. Rae admitted" to "the jury was aware that Mr. Sutram admitted..."

Schedule A – Impugned Statements in Closing Address

Category 1

"Do not make Mr. Rae a victim again or a further victim by holding him partly responsible for another man's poor judgement"

Category 2

"…and I submit to you, that's unreasonable, and the implications of that are I mean, well there are many, but just to give you an example, if a motorist is driving along the road anywhere, and someone engages an illegal act, if you if the person who is the victim of the illegal act doesn't somehow take steps themselves, then they're responsible. For driving along and somebody is passing you, suddenly, even though you officially have the right away, you have to take steps, and if you don't take the right steps, you're responsible. And I say to you, that's an unreasonable standard of care to expect of motorists in our province."

"So my friends are trying to frame this as Mr. Rae having breached some duty because he saw this unfolding beside him, and he could have done more. But make no mistake. What's really happening here is you have a man, my client, who's driving northbound, in his own lane, minding his own business, doing everything to obey the law. And you're being asked to conclude that he had the responsibility to save Mr. Sutram from his own illegality. The implication of that is that any time any motorist in Ontario sees another motorist breaking the law, they have to yield just in case something bad is going to happen."

Category 3

"The plaintiffs are asking you to make Mr. Rae responsible for Mr. Sutram's wrongful, unlawful acts…"

"You're going to have to decide what the standard that would apply to him was and whether he breached it"

"I suggested to [Ms. D'Addario] that the implicit criticism being made of Mr. Rae was that given the illegal lane change by Mr. Sutram, Mr. Rae should have saved Mr. Sutram from his illegal act and she agreed that that was what was being that was that was the proposition"

Category 4

"You're going to have to decide whether you have enough information to be able to mathematically determine how long this passing maneouvre took. I suggest to you it's totally fair for you to say it seems like it was it was a longer than normal passing maneuver because that's consistent with the totality of the evidence. That's different from trying to say that it started at a particular point or it took x seconds. And the difference matters in my submission"

"If it would be within the range of normal responses, then it's not negligent, because it's within the range of normal responses. So that's the way I'd suggest you should be looking at the question. Was his response that night within the range of what you would think would be a normal response for somebody in his position?"

"So the question you have to ask yourself throughout the process is, what would a normal person have done in the moment? And have the plaintiffs given you evidence that allows you to answer that question, either direct evidence or circumstantial evidence that would allow you to answer that question."

"the other way to look at it is, did Mr. Rae's behaviour fall within what a typical driver would do? That's the human factors, 85 to 95% approach. And I say to you, you can't find in favour favour of the plaintiffs on that basis, because they didn't give you any evidence as to what a typical response would be under this situation. They brought somebody who's an expert in human factors who said they couldn't figure it out"

"Ms. D'Addario, the plaintiff's human factors expert, explained to you the 85-95 percentile. So you cannot guess what a reasonable person would have done. You should have been provided with information. What the reasonable range of outcomes is. It's not enough to say, Mr. Rae should have acted reasonably and what he did wasn't. You have to have something to compare that to to know what's reasonable in our community, and you don't have that."

"You don't know what reasonable rates of braking would have been for somebody in Mr. Rae's position had the reasonable response been to brake. Those are pieces of information that I'd suggested to you could have been given information about that from an engineer, and two engineers were here, but they didn't give you that information"

"…that information wasn't read in from his discovery evidence"

Category 5

"I'd suggest to you, you don't need him to tell you why, as a matter of common sense as an estimate of one and a half football fields from a line that's not marked on the road in the dark at 70 kilometres per hour it might not be accurate."

"As a matter of common sense, you don't need Mr. Rae to come here and tell you that at 70 kilometres per hour in the dark, he's realized it might be hard for him to know what exactly what the distance was."

"I suggest you consider that doing what he did, staying the course, behaving in a predictable way so Mr. Sutram could do what he was going to do, was a reasonable response. It might not have been the only possible response that night, but it was the only response that didn't have clear risks associated with it in the moment"

"Do not make him responsible if you conclude that in the moment, what he did, which was to stay the course, be predictable, and allow Mr. Sutram to do what he needed to do, was a reasonable response"

"Well, let me go back to Ms. D'Addario's evidence to frame that. So she pointed out that there was no line marking the bottom of the hill, and Mr. Romaine conceded that when he was giving you his closing, he tried to suggest that the driveway was somehow marking the bottom of the hill. I don't know how somebody in the dark would know that the driveway marked the bottom of the hill in particularly. That'll be something for you to decide"

Category 6

"In the moment, all [Mr. Rae] knows is there's this crazy guy beside him trying to overtake him in the wrong lane on a solid double line"

Schedule B – Corrective Instructions and Changes to Final Instructions

[18] In his closing address to you, counsel for Mr. Rae stated that the implications of finding Mr. Rae negligent in this case is that all motorists driving along a road anywhere who observes someone engaging in an unlawful act, must then yield in case something happens to that driver and if they don't, they are held responsible. Mr. Rae also suggested that such a standard would be unreasonable.

[19] This is not true. As I will explain to you later in my charge, all you are being required to answer is whether on the facts of this case, as you find them, Mr. Rae is negligent. In doing so you will determine whether what Mr. Rae did that night fell below a standard of care. As I will explain in greater detail below, all drivers in Ontario must exercise, at all times, the same manner of caution as might be expected in like circumstances of a reasonably prudent driver, which includes the responsibility to be on the lookout for unsafe and unexpected events on the road, including unsafe manoeuvres by other drivers. That is the standard of care that you will be required to apply in this case. It is a reasonable standard of care. You will be required to determine whether Mr. Sutram and Mr. Rae met that standard of care and whether that was a cause of the accident.

[20] Your decision on these questions has no broader application and you are not to consider any broader application. The oath you have given requires you to look objectively at the evidence and apply the law that I instruct you on to the facts as you find them. Concerns about broader impacts of your verdict are not relevant and have absolutely no place in your decision making. Disregard them.

[21] Counsel for Mr. Rae also argued that by rendering a verdict against his client, you would be making him more of a victim. This is not true. Again, you are required to evaluate the evidence objectively and impartially without sympathy. Your verdict, whatever it may be, will not make anybody a victim.

[78] In answering this question, you are not being asked to determine whether Mr. Rae was required to save Mr. Sutram from his illegal passing manoeuvre. You are being asked to determine whether Mr. Rae fell below the standard of a reasonable and prudent person based on the evidence you heard at trial.

[94] Let me give you two examples to assist you in how you may choose to apply this inference that you are entitled, but not required, to make.

[95] As I noted above, you may rely on Mr. Rae's answers from discovery for the truth of its content. For example, you may accept that Mr. Rae did not believe there was reason to slow down because there was no oncoming traffic in the southbound lane. You are not required to accept that evidence. However, even if you do not accept that evidence you cannot speculate on why Mr. Rae did not slow down because there is no other evidence on this point. You could, but are not required, to make an inference that in choosing not to testify, Mr. Rae did not have any evidence that would be helpful to his defence.

[96] Another example relates to the September 5, 2025 correction. In considering whether to accept all, some or none, of Mr. Rae's correction, you may determine that he had evidence on the correction, whether he believes it was inconsistent with his October 2019, discovery evidence and if so, his explanation for the inconsistency. If you made such a finding, you are entitled, though not required, to make every reasonable inference against Mr. Rae for not having taken the witness stand and providing you with that evidence.

[121] In determining whether Mr. Rae fell below the standard of care you can also consider the lack of evidence. For example, as I already explained, Ms. D'Addario testified that there were no academic studies that would assist in determining what a typical driver would do in this situation.

[122] As a matter of law, I am instructing you that this type of evidence is not required to establish that someone fell below the standard of care of a reasonable and prudent driver. That said, the absence of evidence is something you can consider in determining whether Mr. Rae fell below the standard of a reasonable and prudent person. Ultimately, it will be for you to determine whether the absence of an analogous academic study has any impact on you answering whether Mr. Rae fell below the standard of care.

[124] The law does not require the Plaintiffs or Mr. Sutram to prove causation to an absolute scientific certainty. All the Plaintiffs and Mr. Sutram need to establish is that, on a balance of probabilities, Mr. Rae's breach of the standard of care was a cause of the accident.

[127] In arriving at an answer to the causation issues, you should carefully consider the evidence heard and you may also consider the absence of evidence in determining whether the Plaintiffs and Mr. Sutram have met their burden. To meet this burden the Plaintiffs and Mr. Sutram were not required to file expert evidence on braking rates. Causation can be established without this type of evidence. As I have said before, you can consider the absence of braking rate evidence in answering the causation question.