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Good afternoon.

Please find our summaries of last week’s civil decisions of the Court of Appeal for Ontario (there were three substantive civil decisions).

The most notable decision of the week was Girao v. Cunningham, 2020 ONCA 260, a potential candidate for top appeal of the year. While the decision does not deal with novel issues (it was an MVA case), it provides extensive summaries of the law of evidence and trial practice relating to the admissibility of joint document briefs, expert evidence and evidence of partial settlement (in respect of collateral statutory accident benefits) at trial. It also deals with striking jury notices where a self-represented litigant is involved, and provides courts and counsel with a reminder of the heightened importance of trial fairness when one of the parties is self-represented. Self-represented litigants simply cannot be treated by the courts or by opposing counsel the same way as ordinary litigants who have counsel.

The other two substantive decisions related to notices of lien for unpaid common expenses under the Condominium Act, 1998, and a second MVA decision relating to the recoverability of household expenses and attendant care under the SABs where there was no evidence of such expenses being incurred.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

Carleton Condominium Corporation No. 476 v. Wong , 2020 ONCA 263

Keywords: Real Property, Condominiums, Common Expenses, Liens, Notice, Agency, Vicarious Liability, Civil Procedure, Summary Judgment, Condominium Act, 1998, S.O. 1998 c. 19, s. 85(4), Legislation Act, 2006, S.O. 2006, c. 21, s. 89(3), Rules of Civil Procedure, Rules 3.01(1)(a), 16.06(2), 20.04(2.1), Universal Showcase Ltd. v. U.S.W.A., [2001] O.J. No. 2570 (S.C.), Hryniak v. Mauldin, 2014 SCC 7, Straus Estate v. Decaire, 2012 ONCA 918

Pucci v. The Wawanesa Mutual Insurance Company , 2020 ONCA 265

Keywords: Contracts, Insurance, Automobile Insurance, Statutory Accident Benefits, Catastrophic Impairment, Statutory Accident Benefit Schedule, O. Reg 34/10, s. 3(7)(e), 3(8), Monks v. ING Insurance Company of Canada, 2008 ONCA 269, McMichael v. Belair Insurance Co. (2007), 86 O.R. (3d) 68 (Ont. Div. Ct.)

Girao v. Cunningham , 2020 ONCA 260

Keywords: Torts, Negligence, MVA, Damages, General Damages, Pecuniary Damages, Mitigation, Collateral Benefits, Statutory Accident Benefits, Double Recovery, Civil Procedure, Procedural Fairness, Trials, Jury Trials, Jury Charges, Self-Represented Litigants, Procedural Fairness, Evidence, Admissibility, Hearsay, Documentary Evidence, Expert Opinion Evidence, Joint Trial Briefs, Business Records, Medical Reports, Insurance Act, R.S.O. c. I.8, ss. 267.5(5), 267.8, Evidence Act, R.S.O. 1990, c. E. 23, ss. 35 and 52, Rules of Civil Procedure, Rules 4.1.01, 25.06(1), 47.02, 51, 53.03, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 108(3), 134(1), 134(6), Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Vokes Estate v. Palmer, 2012 ONCA 510, 1162740 Ontario Ltd. v. Pingue, 2017 ONCA 52, Iannarella v. Corbett, 2015 ONCA 110, Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Abbey, 2017 ONCA 640, Westerhof v. Gee Estate, 2015 ONCA 206, leave to appeal refused, [2015] S.C.C.A. No 198, R. v. Bradshaw, 2017 SCC 35, Kapulica v. Dumancic, [1968] 2 O.R. 438 (C.A.); Reimer v. Thivierge, [1999] 46 O.R. (3d) 309 (C.A.), Doran v. Melhado, 2015 ONSC 2845, Robb Estate v. Canadian Red Cross Society (2001), 152 O.A.C. 60 (Ont. C.A.) McGregor v. Crossland, [1994] O.J. No. 310 (Ont. C.A.), Hunter v. Ellenberger (1988), 25 C.P.C. (2d) 14 (Ont. H.C.), Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.), Chisholm v. Liberty Mutual Group (2002), 60 O.R. (3d) 776 (C.A.), Cadieux (Litigation Guardian of) v. Cloutier, 2018 ONCA 903, leave to appeal refused, [2019] S.C.C.A. No. 63, Basandra v. Sforza, 2016 ONCA 251, Malfara v. Vukojevic, 2014 ONSC 6604, Draper v. Jacklyn (1969), [1970] S.C.R. 92, R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, R. v. Meddoui, [1991] 3 S.C.R. 320, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, R. v. Truscott (2006), 216 O.A.C. 217 (C.A.), Farrugia v. Ahmadi, 2019 ONSC 4261, Peloso v. 778561 Ontario Inc. (2005), 28 C.C.L.I. (4th) 10 (Ont. S.C.), Ismail v. Flemming, 2018 ONSC 5979, Kitchenham v. AXA Insurance, 23 C.C.L.I. (4th) 76 (Ont. S.C.), rev’d on other grounds, 229 O.A.C. 249 (Div Ct.), rev’d on other grounds, 2008 ONCA 877, 94 O.R. (3d) 276, McLean v. Knox, 2013 ONCA 357, Djermanovic v. McKenzie, 2014 ONSC 1335, R. v. Krause, [1986] 2 S.C.R. 466, R. v. F. (J.E.) (1993), 16 O.R. (3d) 1 (C.A.), R. v. Bouhsass (2003), 169 C.C.C. (3d) 444 (Ont. C.A.), R. v. R. (A.J.) (1994), 20 O.R. (3d) 405, [1994] O.J. No. 2309 (C.A.), R. v. Hawke, (1974), 3 O.R. (2d) 201 (Ont. H.C.), rev’d on other grounds (1975), 22 C.C.C. (2d) 19, [1975] O.J. No. 2200 (Ont. C.A.), Pintea v. Johns, 2017 SCC 23, Morwald-Benevides v. Benevides, 2019 ONCA 1023, Sanzone v. Schechter, 2016 ONCA 566, Kempf v. Nguyen, 2015 ONCA 114, Cowles v. Balac (2006), 83 O.R. (3d) 660, leave to appeal refused, [2006] S.C.C.A. No. 496, McDonald-Wright v. O’Herlihy, 2007 ONCA 89, Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 60 O.R. (3d) 665 (C.A.), Graham v. Rourke, [1990] O.J. No. 2314 (C.A.), Desjardins v. Arcadian Restaurants Ltd. (2005), 77 O.R. (3d) 27 (Ont. S.C.), Belende c. Greenspoon, 2006 Carswell 9135

Criminal Decisions

R. v. O., 2020 ONCA 261

Keywords: Criminal Law, Fraud, Theft, R. v. O’Connor, [1995] 4 S.C.R. 411, R. v. Mehan, 2016 BCCA 129

R. v. W.M., 2020 ONCA 266

Keywords: Criminal Law, Sexual Assault, Bail, R. v. Manasseri, 2017 ONCA 226, R. v. St-Cloud, 2015 SCC 27

R. v. L.K., 2020 ONCA 262

Keywords: Criminal Law, Sexual Assault, Criminal Negligence, Obstructing Justice, R. v. Keinapple, [1975] 1 S.C.R. 729

R. v. T., 2020 ONCA 264

Keywords: Criminal Law, Possession Of Cocaine For The Purpose Of Trafficking, Right to Freedom from Arbitrary Detention, Canadian Charter of Rights and Freedoms, R. v. Suberu, 2009 SCC 33, R. v. Grant, 2009 SCC 32, R. v. Mann, 2004 SCC 52

CIVIL DECISIONS

Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA
263

Paciocco, Zarnett and Thorburn JJ.A.

Counsel:

Newton Wong, acting in person
Cheryll Wood, for the respondent
Keywords: Real Property, Condominiums, Common Expenses, Liens, Notice, Agency, Vicarious Liability, Civil Procedure, Summary Judgment, Condominium Act, 1998, S.O. 1998 c. 19, s. 85(4), Legislation Act, 2006, S.O. 2006, c. 21, s. 89(3), Rules of Civil Procedure, Rules 3.01(1)(a), 16.06(2), 20.04(2.1), Universal Showcase Ltd. v. U.S.W.A., [2001] O.J. No. 2570 (S.C.), Hryniak v. Mauldin, 2014 SCC 7, Straus Estate v. Decaire, 2012 ONCA 918

facts:

The motion judge granted summary judgment against the appellant, N.W., in favour of the respondent, Carleton Condominium Corp. No. 476, and dismissed the appellant’s counterclaim. The summary judgment related to the common expense arrears the motion judge found the appellant owed the respondent. The motion judge found that the appellant received timely written notice that a certificate of lien would be registered relating to those arrears, and that the lien the respondent subsequently registered was valid, and he gave judgment accordingly.
In the counterclaim that was dismissed, the appellant had claimed that the respondent was vicariously liable for damages caused by the negligence of its employee, L, relating to the management of the rental of the condominium unit on the appellant’s behalf.

issues:

Did the motion judge err in:

(i) interpreting the legislative provisions that govern the relevant notice period relating to the registration of a lien; in finding that the notice period had been met; and in finding that the lien was valid;
(ii) finding that the counterclaim was statute-barred; and in finding that there was no genuine issue requiring a trial on that issue;
(iii) finding that in any event there was no genuine issue requiring a trial relating to the appellant’s assertion that the respondent had vicarious liability for the activities of L?

holding:

Appeal dismissed.

reasoning:

(i) No. The court did not accept the appellant’s contention that the motion judge misconstrued the respondent’s evidence in finding that the notice of lien was sent on January 21, 2014. The court also disagreed with the appellant’s argument that the motion judge erred in applying legislation that defines the required notice period. The motion judge held that s. 89(3) Legislation Act, 2006 governed the calculation of the notice period, which states that a number of days between two events excludes the day on which the first event happened. The judge held that, in applying this section, ten days of notice had been given and therefore s. 85(4) of the Condominium Act, 1998, which states that notice must be given at least 10 days before a certificate of lien is registered, had been satisfied. The appellant argued that in addition to 89(3), 89(5) of the Legislation Act, 2006, which states that “a period of time described as beginning before or after a specified day excludes that day”, should have been applied. Had this subsection been applied, the notice would have been found to be 9 days, failing to meet the threshold in s. 85(4) of the Condominium Act, 1998. The court held that it is impossible for both sections to apply and the motion judge was correct to apply only s. 89(3).
Section 85(4) contemplates that the corporation must (1) give notice of the lien, and (2) register a certificate of lien. It also describes the minimum number of days that must elapse between the two actions. Accordingly, it is appropriate to interpret the notice provision in s. 85(4) as excluding the giving of notice and including the registration of the certificate of lien in accordance with s. 89(3) of the Legislation Act, 2006. The appellant argued that the use of the words ‘at least’ should be interpreted as a reference to clear days, requiring at least ten clear days between the giving of written notice and registration of the certificate of lien. However this common law principle has been ousted by s. 89(3) of the Legislation Act, 2006.
Finally, the appellant argued that the trial judge erred in failing to apply Rule 16.06(2) of the Rules of Civil Procedure (the “Rules”) which provides that service by mail is effective on the fifth day after the document is mailed. The appellant sought to rely on this rule in support of his claim that the notice provided was inadequate. The court stated the Rules do not apply to the notice required by s. 85(4).

(ii) No. The essence of the appellant’s arguments were his contention that the motion judge erred in relying on his fact-finding power under Rule 20.04(2.1) to find that the applicable two-year limitation period had expired prior to the issuance of the counterclaim on May 27, 2016. The court rejected this argument, stating that the enhanced fact-finding powers available under Rule 20.04(.2.1) are presumptively available and may be used unless it is in the interest of justice for the fact-finding power to be exercised only at trial. The motion judge had called the relevant factual findings “unmistakable”, and with good reason. The motion judge was entitled to exercise discretion to use his enhanced fact-finding powers, to refuse to credit the timing offered by the assistant of the appellant, and to rely upon the appellant’s own admissions to conclude that the counterclaim was statute-barred.

(iii) No. The appellant contended that, if the motion judge was wrong to find the counterclaim as statute-barred, the counterclaim should have been allowed to continue to trial because the motion judge erred in evaluating whether L was the respondent’s agent when assisting the appellant in renting the condominium unit. The appellant argued that since L was employed by the respondent, the motion judge should instead have applied the test in Straus Estate v. Decaire for assessing the vicarious liability of employees. The premise on which the appellant pursued this ground of appeal was flawed, since even if the appellant’s vicarious liability argument was correct, the appeal relating to the counterclaim would have to be dismissed because the motion judge correctly determined that the limitation period had expired.

As the motion judge pointed out, the appellant led no evidence that L’s employment duties as business manager extended to acting as a leasing agent for unit holders, or that the respondent was aware that L performed this service for the appellant or anyone else. The appellant failed to show that there was a genuine issue requiring a trial relating to the counterclaim, even if the counterclaim had been in time.


Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265

Doherty, Brown and Thorburn JJ.A.

Counsel:

Katy Commisso and David Scott, for the appellant
Timothy Gindi and Anthony J. Potestio, for the respondent
Keywords: Contracts, Insurance, Automobile Insurance, Statutory Accident Benefits, Catastrophic Impairment, Statutory Accident Benefit Schedule, O. Reg 34/10, s. 3(7)(e), 3(8), Monks v. ING Insurance Company of Canada, 2008 ONCA 269, McMichael v. Belair Insurance Co. (2007), 86 O.R. (3d) 68 (Ont. Div. Ct.)

facts:

The respondent (“BP”) was in a motor vehicle accident in June 2013. At the time of the accident, BP was insured under a motor vehicle policy issued by the appellant (“Wawanesa”). Wawanesa classified BP as eligible for the maximum household expenses and attendant care benefits available under the Statutory Accident Benefit Schedule, O. Reg 34/10 (“SABS-2010”) to persons who had not been characterized as catastrophically injured. Under SABS-2010, attendant care costs for persons not catastrophically injured were available for two years post-accident. Over that time, Wawanesa paid the benefits required. The amounts paid approached the total amounts available under the scheme.

In March 2015, BP’s lawyer advised Wawanesa that BP would apply under s. 45 of the SABS-2010 for a determination that her condition amounted to a catastrophic impairment. Under that designation, she would be entitled to recover certain expenses incurred more than two years post-accident. Based on the opinion advanced by an expert, Wawanesa took the position that BP’s catastrophic impairment was not directly caused by the accident. Therefore, Wawanesa declined to provide BP with the benefits available to persons found to have suffered a catastrophic impairment as a result of an accident.
The trial judge’s reasons focused primarily on causation. She accepted the opinion that BP’s mental disorder was triggered by the motor vehicle accident. That finding was not challenged on appeal. The trial judge made orders pertaining to housekeeping and attendant care benefits. She declared BP was entitled to those benefits at the maximum rates available under the SABS. The trial judge further provided these benefits were to run from June 14, 2015 (104 weeks post-accident) to the date of judgment and “thereafter as incurred”. Wawanesa appealed these orders.

issues:

(1) Did the trial judge err in holding that BP was entitled to payment of household and attendant care expenses for the time period prior to judgment, even if BP had not actually incurred those expenses?

holding:

Appeal allowed.

reasoning:

(1) Yes. The trial judge’s declarations required Wawanesa to pay BP about $18,000 for housekeeping-related benefits and about $270,000 for attendant care benefits for the period prior to judgment (June 2015 – March 2019), regardless of what amount, if any, BP had spent in respect of either housekeeping or attendant care costs, and regardless of whether she had actually received any housekeeping or attendant care services. However, the SABS-2010 requires an insurer to pay expenses referable to benefits provided under the policy, if those expenses have been “incurred”. The trial judge erred in holding the expenses had been incurred. She made that finding without regard to the definition of “incurred” in s. 3(7)(e) of SABS-2010.
Section 3(7)(e) identifies when an expense will be said to have been “incurred”. The trial judge did not refer to s. 3(7)(e) in her reasons. Instead, she referred to a line of cases interpreting the word “incurred” as used in the SABS prior to the enactment of s. 3(7)(e): Monks v. ING Insurance Company of Canada, 2008 ONCA 269; McMichael v. Belair Insurance Co. (2007), 86 O.R. (3d) 68 (Ont. Div. Ct.). The judge-made definition of “incurred”, adopted in Monks and McMichael, is much broader than the legislative definition found in s. 3(7)(e). The Court concluded that the trial judge erred in law in applying the broader definition found in the earlier case law. On the definition of “incurred” in s. 3(7)(e), there was no evidence of any incurred expenses, apart from the payments for attendant care in 2018.

The trial judge further erred in holding, in any event, that those expenses should be deemed to have been incurred under s. 3(8) of the SABS-2010. In making that finding, the trial judge misapprehended material evidence and failed to consider a significant body of evidence relevant to the reasonableness inquiry mandated by s. 3(8). The trial record provided ample basis to question the reasonableness of Wawanesa’s reliance on the expert opinion. It did not, however, speak with sufficient clarity and force to justify the Court’s exercise of its fact-finding function. Therefore, a new trial was ordered.


Girao v. Cunningham, 2020 ONCA 260

Lauwers, Fairburn and Zarnett JJ.A.

Counsel:

Y.G, acting in person
David Zuber and Michael Best, for the respondentKeywords: [KEYWORDS]

facts:

This appeal arises out of a motor vehicle accident that occurred on June 19, 2002 (the “Accident”). The appellant, YG, sustained injuries after the vehicle she was a passenger in had been struck by another vehicle which was operated by the respondent, LC. As a result of the Accident, YG claimed to suffer from, inter alia, chronic neck and back pain, and major depression.
YG later commenced an action against LC, wherein she sought to recover $500,000 in general damages and $500,000 in special damages. LC defended the action, denying all liability on the basis that an unidentified motorist was at fault. As a result of LC’s allegation, YG subsequently brought a separate action against her insurer, Allstate, seeking indemnification pursuant to the unidentified motorist coverage provision under her insurance policy with Allstate. The actions were ordered to be heard at the same time.

LC was represented by counsel appointed by her insured at the trial. YG, however, was self-represented, and required the assistance of a Spanish interpreter.
During the trial, YG claimed general damages for pain and suffering and for economic losses which were not fully covered by the accident benefit (“AB”) settlement she entered into with Allstate. YG argued that she was happy and productive before the Accident, and had been working as a cleaner. Although YG acknowledged that she had experienced two traumatic events in her life, one of which involving sexual assault, she asserted that she had recovered from both events before the Accident. As such, YG argued that she developed chronic pain and depression as a direct result of the Accident. Notably, as of the date of the trial, YG was receiving disability payments through the Ontario Disability Support Program (“ODSP”).
Counsel for LC took the position that the Accident was minor and thus was not causally related to YG’s physical, emotional, psychiatric or mental problems. It was also argued that the AB settlement provided YG with more money than she would have earned as a cleaner. Counsel for LC thus submitted that YG’s motive for the action was not compensation for injuries caused by the Accident but as secondary gain. Counsel further argued all of the experts retained by LC denied that YG had sustained a permanent and serious impairment related to the Accident.
The jury found that LC was fully liable for the Accident, and awarded YG $45,000 in general damages and $30,000 in special damages for past loss of income. As a result, YG’s action against Allstate was dismissed.

Immediately after the trial judge’s charge to the jury and the jury’s dismissal for deliberation, however, counsel for LC moved to dismiss YG’s claim on the basis that YG failed to meet the statutory threshold for general damages under s. 267.5(5) of the Insurance Act (the “Act”), which required YG to prove she sustained a serious and permanent impartment of important physical, mental or psychological function. In allowing LC’s motion, the trial judge dismissed YG’s claim for general damages. In accordance with s. 267.8(1) of Act, he also reduced her damages award for loss of income to $0 to account for the AB payments YG received in settlement from Allstate.
Based on the foregoing, the trial judge awarded partial indemnity costs against YG in the amount of $205,542.38, and another $106,302.96 in disbursements, amounting to a total of $311,845.34. The trial judge ordered that LC pay costs to Allstate,i n the amount of $98,813.06 on the basis of a Sanderson Order. Allstate’s involvement in the action was largely driven by LC’s unsubstantiated claim that the Accident had been caused by an unidentified motorist, and by her failure to accept even 1% liability.
YG appealed from the trial decision, the order on the threshold motion, and the order as to costs.

issues:

(1) Was the preparation, content, delivery and/or use of the so-called “Joint Trial Brief” unfair to YG?
(2) Was the treatment of expert evidence at trial unfair to YG?
(3) Did the trial judge err by admitting the evidence pertaining to YG’s AB settlement with Allstate?
(4) Did the trial judge and/or counsel for LC fail to assist YG, as a self-represented litigant?
(5) Did the trial judge err in refusing YG’s motion for a new trial before a judge sitting without a jury?
(6) Did the trial judge err in incorporating by reference the review of the evidence in the jury charge on the threshold motion?

holding:

Appeal allowed.

reasoning:

Before turning to consider the main issues on appeal, the Court noted that while counsel for LC had complained about the irregular form of YG’s appeals, prejudice was not claimed. After assessing YG’s grounds for appeal, having made due allowance for YG’s status as self-represented, the Court deemed YG’s appeal to have been properly brought on all grounds.
(1) Yes. The Court held that the Joint Trial Brief (the “Brief”) became the basis of the trial record in an unfair way that was inconsistent with the trial practice directions of the Court. Although the Court did not consider the flaws in the management of the trial record to be fatal to the overall trial fairness in this case, the Court held that they nevertheless contributed unfairly to counsel’s defence strategy by keeping any expert evidence that was favourable to YG from the jury and the trial record.

In making its determination, the Court noted that on the eve of trial, counsel for LC delivered a large, selectively redacted 16 volume Brief to YG, who counsel knew to have difficulty with the English language. Specifically, the Court found that, despite its label (Joint Trial Brief), the Brief had been prepared without input from YG. There was no reasonable explanation provided for its late delivery, which disadvantaged YG. Most significantly, however, by accepting the Brief as having been “jointly” prepared, the trial judge admitted the volumes as numbered exhibits in the trial record, without first confirming the authenticity of each document.

In coming to this conclusion, the Court spent some time summarizing the law and procedure relating to the tendering of documents as exhibits at trial. The goal of a trial judge in supervising the assembly of a trial record is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before the trial judge at any moment in the course of the trial”: 1162740 Ontario Ltd. v. Pingue, 2017 ONCA 52 at paras. 14 and 39-40 (see also Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at paras. 127-128). All documents that not become a numbered exhibit should become a lettered exhibit. The important distinction between numbered exhibits and lettered exhibits is that, subject to the trial judge’s discretion, lettered exhibits do not go in with the jury during its deliberations, but numbered exhibits do: Pingue, at para. 17.
It is customary for experts to prepare reports, which counsel provides to the parties and to the judge. The admissible evidence of the expert is normally understood to be the oral evidence, particularly in jury trials. However, the best practice in jury trials is to make expert reports lettered exhibits in order to preserve the integrity of the trial record for the purpose of an appeal: Pingue, at para. 21.

The problem in this case with the trial record went further. In civil actions, it is common for counsel to prepare an agreed trial brief containing documents that are admitted as authentic and admissible (see J. Kenneth McEwan, Sopinka on the Trial of an Action, 3rd ed. (Toronto: LexisNexis, 2016) at pp. 66-72). In Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165, 331 O.A.C. 48, at para. 54, Brown J.A. emphasized the necessity of ensuring that the record reflects the document’s intended use:
When a document brief is tendered at trial, the record should reflect clearly the use the parties may make of it. Such use may range from the binder’s acting merely as a convenient repository of documents, each of which must be proved in the ordinary way, through an agreement about the authenticity of the documents, all the way to an agreement that the documents can be taken as proof of the truth of their contents. Absent an agreement by the parties on the permitted use of a document brief, the trial judge should make an early ruling about its use.
Counsel typically agree on a list of documents and one party attends to the brief’s preparation. As observed in Iannarella, at para. 128: “It is regrettably not unusual, however, for counsel to differ on the precise basis on which a document in the brief is being tendered or whether it was to have been included, as the implications materialize in the course of the trial.” Pingue stated, at para.

40:
[I]t is necessary for counsel to clarify to the court and to each other the extent to which the authenticity of each document in the proffered document brief is accepted…. If, as is too often the case, counsel has not done so, it is the trial judge’s responsibility to get the requisite clarity when the documents are made exhibits, especially concerning a document’s hearsay content.
This discipline of judicial oversight applies even more forcefully where one party is self-represented and the opposing lawyer prepares the brief, and in a jury trial where the brief goes into the jury room.

As is true in all cases, the Court found that the trial judge should have addressed the following questions with the parties when considering how the documents in the Brief were to be treated at trial:

1. Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents?

2. Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?

3. Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial?

4. Are the parties able to introduce into evidence additional documents not mentioned in the document book?

5. Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book?

6. Does any party object to a document in the document book, if it has not been prepared jointly?

As a matter of best practice, however, the Court held that it would have been preferable if the parties addressed these matters in a written agreement and affixed it to the book of documents before the trial, which was true in all civil actions. Had this been the case, the Court noted that it would have preferable for the trial judge to go through the agreement with the parties, line by line on the record to ensure that there were no misunderstandings.

While none of these issues or questions are novel, the Court noted that problems frequently arise because parties do not turn their minds to the issues in sufficient detail before tendering the document book as an exhibit. The Court emphasized that as an ordinary civil trial practice this was something that needed to be changed in all cases. As the instant case shows, numerous issues could have been avoided, have the trial judge sought to address these issues with counsel and YG.

(2) Yes. In fact, the Court held that the unfair treatment of expert evidence was a sufficient basis upon which to allow YG’s appeal. In this regard, the Court held that two issues arose at the trial, which were particularly concerning. The first related to the trial judge’s refusal to allow Dr. Becker to testify as to YG’s injuries. Dr. Becker was the director of the clinic whose team members examined YG in connection with her AB claim. He also authored the covering report in which he summarized the reports of his team, including the psychiatrist Dr. Rosenblat. Dr. Rosenblat had opined that YG had made full recoveries after two highly traumatic events in her life, which included rape. Based on his report, Dr. Rosenblat was of the professional opinion that YG’s symptoms of depression aligned with the fact that her bodily pain developed gradually following the Accident, which allowed him to conclude that “[c]learly this motor vehicle accident has played a substantial role in her current psychiatric functioning.” This expert evidence was most favourable to YG. However, while the evidence was initially entered as a numbered exhibit to the trial record, it was later struck out, as evidenced in a note in the exhibits list, for reasons which were not put before the Court. The Court further noted that the trial judge then only permitted Dr. Becker to testify about the system for determining AB entitlement for catastrophic impairment, and not the substance of his report, which was effectively expunged as irrelevant, in any event, based on the trial judge’s charge to the jury.

The second issue related to the use of Dr. Sanchez’s opinion. This evidence was adduced by counsel for LC to substantiate the theory that, before the Accident, YG suffered from the same psychological problems that manifested after the Accident. Although counsel sought to tender this evidence for the truth of its contents, Dr. Sanchez was not called as a witness. Notably, the Court found that Dr. Sanchez’s report was a mere two pages in length and had concluded only with the “Impression” that YG was suffering from a “Major Depressive Disorder with Psychotic Features in partial remission.”

In making its determination, the Court noted that each of the two issues engaged intertwined sets of governing principles, the first relating to expert evidence, and the second to the use of ss. 35 and 52 of the Evidence Act, to permit the introduction of medical reports as evidence without the need to call the doctors who authored them.
The Court spent some time setting out the legal principles relating to the admissibility of expert evidence and evidence under ss. 35 and 52 of the Evidence Act. The threshold requirement for the admission of expert evidence has four elements: the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified, assuming there is no novel science issue. Then the trial judge must execute the gatekeeper function (see White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 19; R. v. Abbey, 2017 ONCA 640 at paras. 47-48).

These four threshold elements implicitly give rise to another element: Can a person who has expertise, but who is not qualified as an expert witness under Rule 53.03 of the Rules of Civil Procedure still provide opinion evidence? The short answer is yes (see Westerhof v. Gee Estate, 2015 ONCA 206, leave to appeal refused, [2015] S.C.C.A. No. 198). Two types of witnesses with special expertise who can provide opinion evidence butwho are not expert witnesses as described in Rules 4.1.01 and Form 53 were identified in Westerhof v. Gee Estate: The first are “participant experts,” who form opinions based on their participation in the underlying events, such as treating physicians. The second are “non-party experts,” who are retained by a non-party to the litigation and who form opinions based on personal observations or examinations that relate to the subject matter of the case, but for another purpose. One example would be a medical examination of a claimant for statutory accident benefit insurance purposes: see Westerhof, at para. 6. The Court in Westerhof at para. 60 further held that both participant experts and non-party experts may give opinion evidence without complying with Rule 53.03 where: 1) the opinion to be given is based on the witness’s observation of or participation in the events at issue; and 2) the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

There are certain exceptions to the hearsay rule under which a statement may be adduced for its truth value. Two such exceptions, hedged about with additional protections, are found in ss. 35 and 52 of the Evidence Act. Section 35 of the Evidence Act relates to business records. If a record is made “in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act,” then the record is admissible as evidence of such act: s. 35(2).

Section 52 of the Evidence Act relates to medical reports and is more expansive than s. 35. It permits the court to allow the report to be admitted into evidence without the need to call the practitioner. The opinion can then be accepted for the truth of its contents. However, the trial judge must, at the request of a party, oblige the medical practitioner to testify in order to permit cross-examination (see Kapulica v. Dumancic, [1968] 2 O.R. 438 (C.A.); Reimer v. Thivierge, [1999] 46 O.R. (3d) 309, at paras. 12-15; Doran v. Melhado, 2015 ONSC 2845; and Michelle Fuerst, Mary Anne Sanderson, and Donald Ferguson, Ontario Courtroom Procedure, 4th ed. (Toronto: Lexis Nexis Canada, 2016), c. 41).

The respective roles of the two sections have been distinguished in several cases. Section 35 is not a proper basis on which to admit opinion evidence. In Westerhof, the Court said, at para. 103:
Because these reports were tendered under s. 35 of the Evidence Act, the opinions concerning causation were not admissible for the truth of their contents: Robb Estate v. Canadian Red Cross Society (2001), 152 O.A.C. 60 (Ont. C.A.), at para. 152; McGregor v. Crossland, 1994 CanLII 388 (Ont. C.A.) at para. 3. Further, the appeal record contains no indication that notice was served for the admission of these reports under s. 52 of the Evidence Act.

In Robb Estate v. Canadian Red Cross Society (2001), 152 O.A.C. 60 (Ont. C.A.), the Court noted, at para. 152: “Section 52 differs from s. 35 in that it permits the admission of opinions and diagnoses contained in medical reports signed and prepared by qualified practitioners… Section 52 was designed as an alternative to oral testimony.”
In McGregor v. Crossland, [1994] O.J. No. 310 (C.A.) the Court noted, at para. 3:

We do not think that the diagnosis … is admissible under s. 35. It does not relate to “any act, transaction, occurrence or event”. If the notes were to be admissible at all this would have had to have been under s. 52 of the Evidence Act.

The Court ultimately found that it could see no reasonable basis on which the evidence of Dr. Becker could be excluded, particularly given that YG served a notice under s. 52 of the Evidence Act.

The Court further held that the trial judge erred in not allowing Dr. Becker to testify about the substance of his report.

With respect to Dr. Sanchez’s report, the Court inferred that counsel used s. 35 of the Evidence Act, which relates to business records, as a basis for introducing Dr. Sanchez’s opinion letter in order to avoid having to call him as a witness and to avoid exposing him to cross-examination. In this regard, the Court held that s. 52 of the Evidence Act, which relates specifically to medical records, was applicable. Accordingly, since YG objected to the admission of Dr. Sanchez’s report for the truth of its contents, the trial judge was required to refuse to admit the report, unless Dr. Sanchez was presented for cross-examination. Since this did not occur, the hearsay content of Dr. Sanchez’s opinion was not admissible for any purpose, yet it formed a substantial plank in counsel’s position. The Court further found that this was amplified by the trial judge’s jury instructions. Specifically, the Court noted that while the trial judge provided a general instruction to the jury about the inadmissibility of medical records for the truth of their contents, he failed to bring this caution home to the jury with specific reference to Dr. Sanchez’s report.

(3) Yes. Although the Court would have allowed YG’s appeal in light of the answer to issue 2 above, the Court nevertheless went on to find that YG was further denied procedural fairness due to the improper admission of evidence regarding her AB settlement with Allstate. In making its determination, the Court noted that Ontario’s hybrid motor vehicle accident compensation system has as its primary concern the adequate compensation of injured persons. In order to reconcile Abs and tort damages, and thus prevent double recovery, the usual practice in civil jury trials is to include an instruction to the jury to make their award of damages on a gross basis with no deduction for any collateral benefits. Given that a trial judge has broad discretion to control the proceedings to ensure trial fairness, it falls to the trial judge to determine whether and to what extent AB settlement evidence is to be admitted.

In deciding whether to admit AB settlement evidence, the trial judge was thus first required to determine whether the evidence was relevant to a fact at issue. As was accepted by the Court, “[e]vidence is relevant if, as a matter of logic and human experience, it renders the existence or absence of a material fact in issue more or less likely”: R. v. Truscott, 2006, 2016 O.A.C. 217 (C.A.) at para. 22. Pursuant to Rule 25.06(1) of the Rules of Civil Procedure, in a civil matter, the pleadings determine what is relevant.

In attempting to establish the relevancy of the AB settlement evidence at trial, the Court noted that counsel pursued several avenues in order to have the evidence admitted. The less contentious avenue alleged that YG failure to use the settlement proceeds to mitigate future losses, as was the case in Farrugia v. Ahmadi, 2019 ONSC 4261 (“Farrugia”), and Peloso v. 778561 Ontario Inc. (2005), 28 C.C.L.I. (4th) 10 (Ont. S.C.). In both of these cases, however, the defendants were only permitted to ask questions which related to specific issues addressed in the pleadings. The defendants were not permitted to admit the totality of the evidence.

The second more contentious avenue pursued by counsel had been to claim that AB settlement eroded YG’s motivation to work, thereby increasing the future income losses that LC would be required to pay in damages. The Court noted that this avenue was rejected by the trial judges on the basis of relevance in the case of Ismail v. Flemming, 2018 ONSC 5979, or otherwise on the basis that it was excessively prejudicial, as was the case in Farrugia, supra. This tacit was also rejected in Kitchenham v. AXA Insurance, 23 C.C.L.I. (4th) 76 (Ont. S.C.), rev’d on other grounds, 229 O.A.C. 249 (Div Ct.), rev’d on other grounds, 2008 ONCA 877, wherein it was held that the issue to be determined at trial was whether or not the plaintiff was disabled from working – not whether the plaintiff had a financial incentive to work: at para. 52. The Court held that YG’s motivation to work was a collateral issue which went to credibility and thus weight, it was not determinative of relevancy.

The second issue that the trial judge was required to consider was whether the prejudicial effect of the evidence outweighed its probative value. The Court held that the totality of the statutory accident benefits settlement would rarely be relevant and would usually be more prejudicial than probative, particularly in a jury trial, even when the defence alleges that the plaintiff is malingering or lacks the motivation to work. As was reasoned by the Court, these allegations are easy to make and difficult for the plaintiff to defuse. The plaintiff’s burden to prove his or her inability to work is especially heavy for soft tissue injuries, chronic pain, and psychological injury such as depression where objective evidence is lacking.

Based on the foregoing, the Court held that there was no clear basis on which the details of the AB settlement should have been admitted in this case. Having found that there was nothing in LC’s statement of defence, which put the AB settlement at issue, the Court held that there was minimal, if any, probative value in introducing the AB settlement evidence. However, the evidence was highly prejudicial, particularly given that it had been tendered by counsel for the sole purpose of discrediting YG in the eyes of the jury. This unfair was compounded by the general charge that the trial judge made to the jury.

(4) Yes. The Court held that both the trial judge and counsel failed to assist YG, as a self-represented litigant, to the extent fairness required. In making its determination on this issue, the Court noted that numerous trial fairness concerns arises for self-represented litigants. In Pintea v. Johns, 2017 SCC 23, at para. 4, the Supreme Court endorsed the Statement of Principles on Self-represented Litigants and Accused Persons (2006) issued by the Canadian Judicial Council (the “Statement”). The Court noted that while the Statement sets out a variety of important directions, the section on promoting equal justice was particularly relevant in this case. It states as follows:

1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
2. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
3. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.
4. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:
a. explain the process;
b. inquire whether both parties understand the process and the procedure;
c. make referrals to agencies able to assist the litigant in the preparation of the case;
d. provide information about the law and evidentiary requirements;
e. modify the traditional order of taking evidence; and
f. question witnesses.

With a view to the foregoing, the Court held that there were numerous issues with the manner in which trial was conducted. Chief among those issues was the fact that counsel for LC advanced evidentiary positions that were problematic on legally complex issues. Having advanced such positions, the Court held that counsel ought to have assisted the trial judge, as officers of the court, with the legal issues which were embedded in those positions, in order to ensure that the trial judge as able to provide active assistance to YG with respect to same. In this regard, the Court held that “[a] defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented”: Sanzone v. Schechter, 2016 ONCA 566 at para. 22.

In the Court’s view, it was open to the trial judge to require counsel to assist. In this trial, for instance, the trial judge could have asked for a briefing note on the interplay of ss. 35 and 52 of the Evidence Act in relation to the medical evidence, including the relevant authorities. The same would apply to the introduction of the evidence of the totality of the statutory accident benefits settlement on which there are several relevant cases.

Although the Court accepted that there are limits to a trial judge’s duty to assist a self-represented party, the actuality and appearance of judicial impartiality is required to be maintained. This level of impartiality was not maintained. Rather the Court found that the impression left by the limited trial record was that the trial judge allowed himself to be led by counsel’s arguments, while YG, as a self-represented, legally unsophisticated party, who struggled with the English language was left to her own devices. The Court therefore held that on the facts of this case, fairness required more.

(5) Yes. The Court held that the trial judge erred by refusing to strike the jury. In this regard, the Court noted that the principles governing the discharge of a jury were set out in Kempf v. Nguyen, 2015 ONCA 114 (“Kempf”). In that case, Epstein J.A, writing for the majority, held at para. 43, that the complexity of a case is a proper consideration in determining whether a jury notice should be struck, and which relates not only to the facts and the evidence, but also to the legal principles that apply to the case. As was further held in that case, “[t]he question for the trial judge is simply this: will justice to the parties be better served by dismissing or retaining the jury?”: at para. 119. In this regard, the Court accepted, as it did in Kempf, that context matters.

In terms of context, the Court found that one issue with respect to the present case, was the degree to which, if at all, the trial judge ought to have considered YG’s status as a self-represented litigant. In this regard, the Court noted that in Desjardins v. Arcadian Restaurants Ltd. (2005), 77 O.R. (3d) 27 (S.C.), the status of a self-represented party was a factor considered by the trial judge in determining whether to strike the jury notice. In that case, the defendant had filed a jury notice but then later moved to strike the jury several months before trial. The motion judge initially dismissed the motion to strike without prejudice to the defendant on the belief that “without proper instruction to the plaintiff and to the jury, [he] would be able to manage the trial in a manner that would be perceived by the jury to be fair to both sides”: at para 12. However, he left it open to the defendant to renew the motion at trial. The motion judge later granted the defendant’s motion to strike the jury closer to trial, noting that the self-represented status of the plaintiff made the case “unduly complicated” and the trial would be prolonged as a result: at para. 11. Moreover, the trial judge held that it would be impossible for him to provide the assistance he anticipated the plaintiff would require of him at the trial: at para. 13 (see also Belende c. Greenspoon, 2006 Carswell 9135).

With respect to the present matter the Court found that while the medical evidence was not markedly different from the factual issues and legal principles routinely handled by juries in cases involving motor vehicle accidents and medical malpractice, the presence of the jury was a factor that prevented the trial judge from providing active assistance to YG, as required in this case. The Court thus held that the trial judge ought to have reconsidered his decision not to strike the jury as the trial unfolded and difficulties in trying the case fairly emerged. Specifically, the Court found that the following factors weight in favour of striking the jury:

• YG was self-represented and legally unsophisticated.
• She required the assistance of an interpreter and, as evidenced by the transcript excerpts in the appeal record, difficulties occurred from time to time as the evidence unfolded.
• YG faced two sets of experienced and highly active jury counsel.
• When counsel for LC objected to a question or statement made by YG, as it frequently did, the jury had to be taken out so that argument could take place and appropriate instructions given, usually to her. This added to the trial time and to the frustrations of all involved, and likely to YG’s detriment.

The Court noted that as was held by Epstein J.A. in Kempf, the “wait and see” approach is usually the most prudent course to follow as the trial judge will be in a better position to assess the capacity of the self-represented party the more the trial unfolds: at para. 43(9). While remaining mindful of the substantive but not absolute right to a trial by jury, the trial judge then is positioned to determine whether justice to the parties would be better served by dismissing or retaining the jury.

In making its determination, the Court was not unmindful to the fact that the right to a jury trial in a civil action has been recognized as fundamental: McDonald-Wright v. O’Herlihy, 2007 ONCA 89, at para. 13, per Gillese J.A. However, the Court likewise accepted that the right to a jury trial was not absolute either, and must sometimes yield to practicality. The Court emphasized, however, that this was not to say that the presence of a self-represented litigant should invariably lead to the dismissal of a civil jury.

Notwithstanding the foregoing, the Court refused to grant an order to have the case be retried by a judge sitting alone. Although the Court has broad authority to make remedial orders pursuant to s. 134(1) of the Courts of Justice Act, the Court found no case in which the Court had directed that a new trial proceed without a jury.

(6) Yes. Based on the foregoing, the Court held that the trial judge erred in incorporating by reference the review of the evidence in the jury charge on the threshold motion. In doing so, the trial judge injected the threshold motion with all the same issues that were identified by the Court in issue 1(b) above.
Based on the foregoing, the Court was ultimately satisfied that YG was denied processional fairness. The Court thus allowed YG’s appeal, set aside the judgment and orders below, and ordered a new trial. The Court awarded the costs of the appeal and of the trial to YG, including her disbursements.


CRIMINAL DECISIONS

R. v. Omitiran, 2020 ONCA 261

Harvison Young J.A. (Motion Judge)

Counsel:

Gabriel Gross-Stein and Riaz Sayani, for the applicant
Jeffrey Wyngaarden, for the respondent
Keywords: Criminal Law, Fraud, Theft, R. v. O’Connor, [1995] 4 S.C.R. 411, R. v. Mehan, 2016 BCCA 129

R. v. W.M., 2020 ONCA 266

Brown J.A. (Motions Judge)

Counsel:

W. John McCulligh, for the applicant
Caitlin Sharawy, for the respondent
Keywords: Criminal Law, Sexual Assault, Bail, R. v. Manasseri, 2017 ONCA 226, R. v. St-Cloud, 2015 SCC 27

R. v. L.K, 2020 ONCA 262

Doherty, Watt and Hourigan JJ.A.

Counsel:

Michael Lacy, for the appellant
Roger Shallow, for the respondent
Keywords: Criminal Law, Sexual Assault, Criminal Negligence, Obstructing Justice, R. v. Keinapple, [1975] 1 S.C.R. 729

R. v. Thompson, 2020 ONCA 264

Strathy C.J.O., Harvison Young and Jamal JJ.A.

Counsel:

Marianne Salih, for the appellant
Meaghan Hourigan, for the respondent
Keywords: Criminal Law, Possession Of Cocaine For The Purpose Of Trafficking, Right to Freedom from Arbitrary Detention, Canadian Charter of Rights and Freedoms, R. v. Suberu, 2009 SCC 33, R. v. Grant, 2009 SCC 32, R. v. Mann, 2004 SCC 52


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with…

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles professional discipline and professional negligence matters, as well as complex estates and matrimonial litigation. In addition, John represents amateur sports organizations in contentious matters, and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.