Reasonable Evidence Must be Met Before a Jury Quantifies Special Damages
Barry v. Anantharajah, 2024 ONSC 740, arose out of a motor vehicle accident where the plaintiff was hit by a motor vehicle while crossing a crosswalk. The plaintiff made a claim for special damages including loss of income, loss of competitive advantage and loss of earning capacity.
Background
The plaintiff was 21 years old at the time of the accident. She obtained a personal support worker (“PSW”) diploma two years prior to the accident, but never worked as a PSW. She was working temporary jobs and was receiving social assistance at the time of the accident. However, the plaintiff’s career goal was to work as a PSW.
The plaintiff and the defendant brought a motion to strike jury questions during a jury trial after all the evidence was completed.
The plaintiff was seeking leave to strike the following jury question:
1. Has the Defendant proven that the Plaintiff’s own negligence contributed to the accident?
The plaintiff’s position was that there was no “reasonable evidence” upon which the jury could conclude that the plaintiff was negligent while crossing the street.
The defence argued that there was reasonable evidence which the jury could find that the plaintiff did not look left before entering the crosswalk, did not look left while walking in the crosswalk, and was holding her phone in her hand at the time of crossing.
Simultaneously, the defence was seeking leave to strike the following jury questions:
2. If the Plaintiff has proven that she suffered past loss of income from the accident, in what amount do you assess her damages from December 16, 2014 onwards (i.e. one week after the accident to present)?
3. If the Plaintiff has proven that she will suffer future loss of income or reduced earning capacity from the accident, in what amount do you assess her damages?
With respect to question 2, the defendant’s position was that question should be struck as a claim for relief should have been specified and the amount for damages claimed should be particularized to the extent that they are known at the date of the pleading pursuant to Rule 25.06(9)(b) of the Rules of Civil Procedure.
The defence argued that questions regarding the plaintiff’s past income loss should only go to the jury if they found that the plaintiff would have worked as a PSW after the accident. The defence argued that the plaintiff did not advance any evidence about other jobs she might have obtained.
With respects to Q3, the defence argued that the question regarding future income loss cannot go to the jury because it was not sufficiently particularized. The plaintiff did not present any evidence about when the plaintiff was expected to retire. Plaintiff’s counsel only provided evidence about her retirement age from their actuarial expert who assumed a retirement age of 65 years. In the alternative, the defence argued that the jury must first find that the plaintiff would have worked as a PSW after the accident, before deciding the matter of future income loss.
The motion was dismissed, and all three questions were to be presented to the jury.
Analysis
The Court stated whether a jury should be asked to decide on a particular issue is a question of evidence. There must be “reasonable evidence” to allow a question to go to a jury[1]. The evidence of a vague possibility is not sufficient to allow a question to be put to a jury, the evidence must be sufficient enough to support a verdict. On matters of economic loss, a jury cannot be asked to speculate and pull a dollar figure out of thin air.
In Johnston v. Walker, 2017 ONSC 3370, the Court refused to put the question of the plaintiff’s loss of earning capacity to the jury since there was insufficient evidence on which a jury, properly instructed and acting judicially could reasonably calculate the damages claim. There was no evidence of the plaintiff’s current annual income or loss of income. Therefore, putting the question to the jury “would invite them to speculate and pull a dollar figure out of thin air”[2]. There must be some admissible evidence, upon which a jury is properly instructed, could find a claim and calculate the damages.
In regards to Question: 1, the Court found that there was reasonable evidence in support of the defence’s theory of contributory negligence, on which the jury could find that the plaintiff did not look left while entering or crossing the crossing the road.
With respects to Question: 2, the Court found there was sufficient information to present the question of past income loss to the jury. The plaintiff provided reasonable evidence to support her claim for past income loss. The plaintiff provided evidence about her education, employment history, pre-and post-accident earnings, her ambition to work as a PSW and evidence from the plaintiff’s actuarial expert about the income loss if she were to have worked as a PSW from 2016 until trial. The Court found it was not necessary for the plaintiff to present evidence of every possible employment possibility to present her claim for past income loss and was not required to adduce actuarial evidence.
The Court found that the jury had reasonable evidence to decide whether the plaintiff was capable of working after the accident along with the kind of work that may have been available to her.
In connection to Question: 3, the Court found that the plaintiff satisfied the burden of providing reasonable evidence to support her claim for future income loss. The plaintiff’s evidence consisted of information about her education and employment history, pre- and post-accident earnings, and the evidence from the actuarial expert on the future income loss if the plaintiff were to work as a PSW from 2016 until age 65. The plaintiff also presented evidence of her employment prospects, the type of work she sought to obtain and the skills she had at the time of the accident.
The Court expressed that if the plaintiff was required to provide calculations on every possible employment scenario, this would cause the trial to be longer and more complex. The Court found the jury had reasonable evidence to decide whether the plaintiff was capable of working after the accident as well as the kind of work she might have had available to her.
Although the plaintiff was 21 years old at the time of the accident, the jury had reasonable evidence to draw an inference about the plaintiff’s likely retirement date based on the totality of the evidence about the plaintiff’s work history, historic income, her overall condition and her financial resources and means.
Takeaway
Jury questions must be tailored to the specific findings of fact necessary to deciding a case. Although the jury are the sole judges of fact, they are such judges only in cases in which there is a reasonable question of fact to be determined. It is the duty of the trial judge to determine whether there is reasonable evidence of question to go to the jury. This is emphasized especially when dealing with questions of an economic loss, as insufficient evidence would potentially allow a jury to speculate someone’s past and future income loss and pull a dollar figure out of thin air.
[1] M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, at para. 51.
[2] Johnston v. Walker, 2017 ONSC 3370, at para. 10.