April Invts. Ltd. v. Menat Construction Ltd. (1975), 11 O.R. (2d) 364 (H.C.) [April]

In April, the Court granted the Plaintiff leave to examine a Defendant regarding the findings from a Defendant’s expert report.  The report was conducted after the EDs for both parties have been completed.

The Plaintiff took the position that new facts may have come to light as a result of the report and that the Plaintiff was entitled to examine the Defendant with respect to these facts.  Pennell J. agreed with the Plaintiff.  He found that:

The court has jurisdiction to order further discovery where the examination already had has [sic] failed to give the party seeking it the discovery to which he is entitled. To the making of that appraisal one can do little more than offer suggestion of example. Justification for such an order includes the following: “[Where] special grounds are shown”: Martin v. Deutch et al., [1943] O.W.N. 774, [1943] 4 D.L.R. 798; “[Where] it is in the interest of justice”: Standard Trading Co. v. Seybold (1904), 7 O.L.R. 39; “Where justice so requires”: Hellofs v. Royal Bank of Canada, [1940] 1 W.W.R. 6.

Pennell J. did not specify whether a second ED was granted in accordance with special grounds or in the interests of justice.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

Sandhu (Litigation guardian of) v. Wellington Place Apartments (2008), ONCA 215 (C.A.) [Sandhu]

Sandhu (Litigation guardian of) v. Wellington Place Apartments (2008), ONCA 215 (C.A.) [Sandhu]

In Sandhu, the court evaluated the probative value and the prejudicial effect of non-demonstrative evidence.  The decision was an Ontario incarnation of Anderson v. Maple Ridge (District), (1993), 10 C.P.C. (3d) 258 (B.C.C.A) [Anderson].  The court considered whether evidence of subsequent remedial measures should be excluded. 

The plaintiff was a little boy who fell out the window of an apartment building.   The window was not fitted with a functional screen or child safety latches.   Shortly following the accident, the defendant replaced the screen and installed safety latches.   The defendant took the position that evidence of subsequent remedial repairs was unduly prejudicial and should have been excluded.  The evidence was admitted.  The defendant appealed the decision.

On appeal the court considered the probative value and the prejudicial effect of the evidence.  First, the court reviewed the probative value of the evidence.  The court found that evidence of subsequent remedial measures was probative in showing that the defendant’s inspection of the building prior to the accident failed to meet a reasonable standard expected of an occupier.

The court then turned to the prejudicial effect of the evidence.  At paragraph 58, it echoed the prejudicial effects considered in Anderson, supra. The jury could perceive the evidence of subsequent repairs as tantamount to an admission of negligence.

At paragraph 60, the court defined the relationship between probative value and prejudicial effect as follows:

 The prejudicial effect … includes considerations such as whether the evidence will unduly lengthen the trial or may be misused by the jury.  In considering the balance between probative value and prejudicial effect, the trial judge can also take into account whether limiting instructions to the jury can mitigate any prejudice.

 

The court concluded that although there is a risk that a jury would misuse the evidence, a jury warning was sufficient to mitigate this prejudicial effect.  Consequentially, the evidence was admitted.

The court did not offer a framework in which to balance the probative value and prejudicial effect of the evidence.    As such, the case is only valuable as an example of when a civil court will not exclude prejudicial evidence.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

Hutton v. Way (1997)

Hutton v. Way (1997)

Hutton v. Way (1997), 105 O.A.C. 361 C.A. [Hutton]

In Hutton, the Ontario Court of Appeal applied the R v. Corbett decision in a personal injury case. The court held that the trial judge erred by allowing unduly prejudicial cross-examination of the plaintiff. 

The plaintiff in Hutton had two criminal convictions in the 1970’s; one for sexual assault with a weapon and another for possession of marijuana.  The defence relied on Ontario Evidence Act to cross-examine the plaintiff on the subject of his past criminal record.  To justify the admissibility of the criminal record evidence, the defence alleged that the credibility of the plaintiff was in issue.   

Prior to his accident, the plaintiff worked at a residential treatment center for troubled boys.  The plaintiff testified that he was unable to resume his employment at the center due to his injuries.  The defence maintained that the plaintiff resigned because he knew he would be fired due to his criminal record.  

The trial judge agreed with the position of the defence and allowed the cross-examination.   The plaintiff appealed.  The Ontario Court of Appeal found the evidence to have been improperly admitted.  At paragraphs 4-5, the court held as follows:

4. [T]he fact that the appellant might be terminated for reasons that had nothing to do with his qualifications or work record is not only speculative but irrelevant in a civil action for personal injuries.  The nature and extent of his injuries had nothing to do with his early criminal record… The only result of this evidence was to paint the appellant as a sex offender and create a hostile environment for his claim.  

5. As indicated, the stale dated criminal record of the appellant did not relate to offences involving fraud or dishonesty.  While prima facie admissible under the Ontario Evidence Act, these convictions should have been excluded on the Corbett application brought by the appellant.   

 

At paragraphs 7-10, the court amended the judgment to increase the damages in excess of the last two offers to settle which were made by the defendant. 

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

Kusnierz v. Economical Mutual Insurance Company

Kusnierz v. Economical Mutual Insurance Company

 Kusnierz v. Economical Mutual Insurance Company, 2011 ONCA 823

 

In a much anticipated decision, the Ontario Court of Appeal overturned the findings of Lauwers J. and found that physical and psychological impairments can be combined to determine catastrophic impairment under cl. 2(1.1) (f) of the Statutory Accident Benefit Schedule (SABS).

Facts:

The plaintiff suffered injuries in a motor vehicle collision which resulted in a below-the-knee amputation of his leg.  In addition to his physical impairments associated with the loss of the leg, the plaintiff also suffered from significant psychological impairments.

The plaintiff took the position that he was catastrophically impaired in accordance with the SABS.  Specifically, that he was catastrophically impaired in accordance with a combination of cl. 2(1.1)(f) and 2(1.1)(g) of the SABS. The relevant sections read:

(f) subject to subsections (2) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (Guides), results in 55 per cent or more impairment of the whole person;

(g) subject to subsections (2) and (3), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

SCJ

At trial, Lauwers J. concluded that it was not permissible to combine cl. 2(1.1) (f) and 2(1.1) (g).  He further found that the plaintiff did not suffer a 55 per cent impairment under cl.2 (1.1) (f) alone.  He concluded that combining physical and psychological impairments would be an inappropriate deviation from the “clear intentions of the legislature”

COA

The plaintiff appealed the decision.  On appeal MacPherson J.A. overturned the trial level decision in favour of the reasons employed by Spiegel J. in Desbiens v. Mordini (2004) O.J. No. 4735 (S.C.) [Desbiens].   In making his conclusion, Macpherson J.A. considered:

“the language of the SABS, the purpose of the Guides, the Guides’ references to combining physical and psychological impairments and the goals of the SABS.”

At pp. 25-26 MacPherson J.A. expressly endorsed the reasons and conclusions employed in Desbiens, finding that the plain language of cl. 2(1.1) (f) allows for a combination of physical and psychological impairment.

At p. 27 MacPherson J.A. noted that the trial judge ignored the Guides’ aim of assessing the total effect of a person’s impairments on his or her everyday activities. MacPherson J.A. found that:

An objective, standardized system of assessment is only useful to the extent that it can reflect persons’ actual levels of impairment.  To disregard the mental and behavioural consequences of a person’s injuries because they are too hard to measure would defeat the purpose of the Guides.

At pp. 28-30 MacPherson J. listed a number of situations in which the Guides expressly recommend for an assessment of a person’s physical impairment to take into account mental and behavioural impairments.  He concluded that the Guides’ examples are illustrative, rather than exhaustive and that:

[t]hese recommendations reflect the principle that a total impairment assessment must take both physical and psychiatric impairments into account…  Accordingly, it seems… that combining physical and psychiatric impairments can be done “in accordance with” the Guides.

At paragraph 31 MacPherson J. found that combining physical and psychological impairments produces results which are consistent with the purposes of the SABS.

At paragraph 32 MacPherson J. concluded that   allowing a combination of physical and psychological impairments “promotes fairness and the objectives of the statutory scheme.”

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

 

Cowie v. Cowell

Cowie v. Cowell (1995), O.J. No. 4720 (S.C.J.) Aff’d on appeal [Cowie]

 Cowie outlines the manner in which a cross-examination on the subject of prior convictions may be conducted.  The cross-examiner has to address each prior conviction individually.  It follows that the court will evaluate the admissibility of individual convictions before even considering the criminal record as a whole.

In Cowie, at the conclusion of the cross-examination, the plaintiff was asked if she had ever been convicted of a criminal offence.   The plaintiff replied in the affirmative.  There were no follow-up questions.  The counsel for the defence explained to the court that the question was in regards to a 1983 conviction for credit card fraud

The plaintiffs took the position that the question put her in an unduly prejudicial light and that no instruction by the trial judge could reasonably be expected to blunt or deflect the prejudice which would result to the plaintiff.  As it was no longer possible for the jury to judge the plaintiffs’ claim fairly, the plaintiffs moved to strike the jury notice on the ground of prejudice.

In reviewing the application to strike the jury, Horkin J. considered his right as a trial judge to exclude evidence obtained in accordance with S.22(1) of the Ontario Evidence Act (OEA).  At paragraph 5 he stated that:

Section 22 is permissive. It is important to bear in mind that the trial judge always has the discretion to exclude from the trial, evidence where the prejudice it creates outweighs its probative value. The trial judge as well always has the discretion to exclude evidence of previous convictions or criminal record in those cases where a mechanical application of the Evidence Act would undermine the litigant’s right to a fair trial by an impartial jury, and that language is paraphrased somewhat from Corbett, which is a case, of course, in the criminal context.

Horkin J. agreed that asking whether the plaintiff “was ever convicted of a criminal offense” can be unduly prejudicial.  Furthermore, it leaves the court in a vacuum. The court has no way of knowing which offense the plaintiff referred to.  Without the nature and the date of the offense, the court cannot instruct the jury why the plaintiff’s criminal record is or is not a matter of importance.

Horkin J. proceeded to explain the appropriate manner in which to raise the prior criminal record of a witness.  At paragraphs 6, he noted that the question should have been worded as follows:

 “Where you convicted of the offence of criminal fraud in 1983?”

Horkin J. concluded that no instructions could undo the prejudice created in the minds of the jury.  He struck the jury in accordance with the plaintiffs’ motion.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.