Summer 2019 – Newsletter
Welcome to In|Sight, Rogers Partners’ quarterly newsletter that offers our unique perspective on relevant legal issues and the internal happenings of the firm.
Lessons from Gopie v. Ramcharran: A Case Comment and Review of Issues on Appeal in Civil Jury Trials
By Stephen G. Ross and Erin Crochetière
The Ontario Court of Appeal recently dismissed an appeal brought by the plaintiff following an adverse outcome after a trial that occurred in 2016. In doing so, the Court dealt with five major issues, highlighting and clarifying the law in a manner which demonstrates just how difficult – although certainly not impossible – it can be to overturn a civil jury verdict.
What follows is a brief summary of the decision and the major issues addressed, including: the admissibility of criminal convictions in a civil action, the scope of permissible expert evidence, causation, the failure to object to a jury charge, and costs.
A review of these topics as they appear in Gopie v. Ramcharran provides a useful summary of many of the key issues that commonly arise in the context of civil appeals.
Following an eight week trial, the jury returned a verdict of $186,000, which was significantly less than the defendant’s pre-trial settlement offer of $500,000 plus costs. Once the damages, pre-judgment interest and costs awarded to the plaintiff were set off against the costs the trial judge awarded to the defendant, the plaintiff recovered nothing and owed the defendant a further $22,406.37.
In short, it was a disastrous result for the plaintiff who, having turned down half a million dollars plus costs, was now in debt to the tortfeasor for over $20,000. So an appeal was launched – and dismissed. This outcome serves to highlight many of the key issues which arise in appellate advocacy and the uphill battle facing all appellants who pursue an appeal of a civil jury verdict.
Evidentiary Issue: Criminal Convictions
On appeal, the plaintiff argued that it was improper for the trial judge to have allowed the jury to consider evidence of the plaintiff’s criminal convictions for the purposes of assessing his credibility.
The Court of Appeal noted that Mr. Gopie was the first to call evidence of his character and bad behaviour, including evidence regarding his convictions and other prior unlawful conduct. The plaintiff’s argument at trial was that he was of good character before the accident and his bad behaviour following the accident was the result of an ongoing emotional disability caused by a brain injury he sustained in the accident. The Court of Appeal found that, having introduced evidence of Mr. Gopie’s character, the respondent was entitled to challenge it.
Moreover, the Court of Appeal found it was proper and appropriate for the trial judge to instruct the jury that they could use the evidence of the plaintiff’s criminal record and other unlawful conduct, for two purposes: first, to assess how, if at all, the accident impacted the plaintiff’s judgment; and second, for the purposes of assessing Mr. Gopie’s credibility. The Court found that the trial judge properly charged the jury in this regard.
Further, the Court noted that the trial judge provided a draft of her charge to counsel for review and comment prior to the delivery of the charge to the jury. Trial counsel for the plaintiff made no objection regarding the portions of the charge which dealt with the plaintiff’s prior convictions.
The Court’s finding in this regard illustrates that, in certain circumstances, a witness’ criminal record may be admissible as evidence relevant to the issue of credibility. This is particularly so when the convictions contain elements of “moral turpitude”, or speak to the party’s propensity to tell the truth – or not (e.g.: fraud, perjury etc.). 
Evidentiary Issue: Scope of Expert Evidence
The Number of Experts
The plaintiff also appealed on the basis that the judge erred in permitting the defence to call two expert psychiatrists.
However, the Court of Appeal found that the trial judge recognized her role as gatekeeper and exercised that role reasonably. The trial judge properly considered a number of issues when determining whether to permit the defence to adduce evidence from two psychiatrists, including the quantum of damages claimed ($10,000,000), and the probative versus prejudicial impact of admitting, or not admitting, the evidence of the two experts.
Although they were both psychiatrists, the judge found that the experts’ perspectives were quite different, and their evidence would not be unduly repetitive and would assist the jury. Further, there was no prejudice caused to the plaintiff by allowing the two psychiatrists to testify, whereas the defendant might be prejudiced if they were not permitted to give evidence. The Court found this was a proper exercise of the judge’s discretion as it related to admitting expert evidence.
The Admissibility of Reports Without Witnesses
The plaintiff also alleged that the trial judge erred in law in ruling that medical records admitted as business records under s. 35 of the Evidence Act were not admissible as medical opinions without the benefit of the author of the records attending and giving oral evidence.
The Court of Appeal disagreed with the plaintiff’s argument, and noted that an opinion contained in a medical record may be admissible as a medical report if the report is signed by the practitioner and leave of the court is obtained. The Court further noted that opinions contained in medical records are admissible in this manner pursuant to s. 52(2) of the Evidence Act (dealing with medical reports), and not s. 35 (dealing with business records).
The authors note that it has otherwise been held that an “opinion” is not a proper business record either pursuant to the Evidence Act or at common law. As such, opinions contained in otherwise properly tendered business records ought to be redacted as, by definition, a business record is that which records an “act, transaction, occurrence or event.” An opinion is none of those things.
In this case, the Court of Appeal indicated the trial judge correctly exercised her gatekeeper function with respect to the admission of the opinions contained in the medical records and reasonably concluded that they were not admissible in the absence of attendance and testimony from the practitioner.
This is an issue on which a trial judge has considerable discretion.
It is the authors’ view that it is prudent, from any party’s perspective, to indicate that, if an opposing party intends to tender an expert report pursuant to s. 52 of the Evidence Act, they will require that the author of the report be made available for the purposes of cross-examination at trial.
There remains some debate in the case law as to which party, in those circumstances, is responsible for coordinating and paying for the expert’s attendance at trial. Nevertheless, it remains a matter of best practice for counsel (assuming they wish to reserve such rights) to indicate in writing that they require the author of any opinion sought to be introduced by the party opposite to be available for cross-examination at trial.
Charge to the Jury and the Failure to Object
Complaints Regarding the Charge
The plaintiff also alleged that the trial judge did not provide an appropriate direction to the jury with respect to their role as fact finders, particularly in light of the fact that the trial judge has also reviewed the evidence and implicitly made certain findings of fact.
The Court of Appeal disagreed, indicating that the trial judge made clear to the jury their respective roles when the judge stated:
“The law permits me to comment or express opinions about issues of fact. If I do that, you do not have to reach the same conclusion. You, not I, decide what happened in this case.”
Furthermore, the Court of Appeal rejected the plaintiff’s argument that the jury charge was unbalanced and prejudicial to the plaintiff. The Court found the jury charge was comprehensive, fair and well balanced.
Moreover, the Court noted that the trial judge had provided a draft of her charge to counsel for review and comment. Trial counsel made no objection with respect to the issues raised on appeal, either before or after the delivery of the charge.
Counsel’s Obligation to Object
This outcome highlights the critical impact of counsel’s failure to object to the trial judge’s charge, particularly where, as here, the trial judge gave ample opportunity for counsel to do so.
The authors note that the failure to object is treated considerably differently in the criminal and civil context.
It has been held, in the criminal context, that the failure to object may be of no consequence, that it is not a “make weight” and it cannot convert the inadequate to the sufficient.
However, in the civil context, the failure to object, particularly to the characterization of evidence in the jury charge, is nearly always fatal. The absence of an objection in the civil context is said to bespeak the atmosphere in the courtroom and serves to undermine a later assertion of some serious impropriety, or otherwise highly prejudicial effect, of the charge. It has been held that, if trial counsel found the impugned comments had such a deleterious effect, they would have found themselves on their feet and objecting.
To that end, courts have consistently held that, in the civil context, the failure to object will be fatal unless the objected to irregularity in the trial process constitutes a substantial wrong or a miscarriage of justice.
One may wonder whether the profound difference in the treatment of a failure to object in the criminal versus the civil context continues to make logical or coherent sense. Nevertheless, it remains, at least for now, the state of the law.
Fortunately, there has been some movement in the common law in this regard. For example, in Landolfi v. Fargione, the Court of Appeal held that defence counsel’s failure to object to a personal attack made on him by opposing counsel did not diminish the trial judge’s responsibility to intervene to avoid the risk of prejudice.
Similarly, the Court of Appeal in Bruff-Murphy v. Gunawardena held that the absence of an objection does not impair a trial judge’s ability to intervene to exclude prejudicial evidence in order to ensure trial fairness.
Moreover, the situation with respect to a judge’s instruction or charge to the jury on a matter of law is arguably quite different. It should be incumbent upon the trial judge to properly instruct the jury as to the law and a failure to object in that regard should be of much less – if any – consequence. If, as a result of a misdirection by the trial judge, the jury is given the wrong test at law, or is misdirected as to which party bears the burden of proof on a particular issue, trial counsel’s failure to object should not matter.
Causation and the Standard of Proof
The plaintiff also argued that the judge erred in her direction regarding the proper test for causation and the standard of proof applicable to a claim for future pecuniary damages.
The Court of Appeal held that the trial judge clearly and carefully instructed the jury that, for the defendants to be liable in damages to the plaintiff, the plaintiff must prove that he would not have suffered the injuries but for the accident.
The trial judge also explained the standard of proof. After describing the balance of probabilities standard (as it relates to pre-trial losses), she went on to explain that a different standard of proof applies to claims for future damages, and that standard is “whether there is a real and substantial possibility” that the future damages would be incurred.
The Court found that the trial judge’s direction regarding these issues was proper and did not mislead or confuse the jury with respect to causation and the standard of proof.
Costs: A Matter of Discretion
The plaintiff also sought leave to appeal the costs award even if he was unsuccessful in having the outcome at trial overturned. The plaintiff argued that, although they acknowledged there must be some cost consequences when offers to settle are greater than the judgment in accordance with a jury verdict, in all of the circumstances, the trial judge’s approach was disproportionate, and the consequences of the costs order were too harsh.
The Court of Appeal held that there was no basis to interfere with the trial judge’s costs order. The Court found that the judge considered the appropriate factors in fixing costs and that her order was not “plainly wrong.” Accordingly, leave to appeal the costs order was refused.
The Court’s approach in affording wide discretion to a trial judge with respect to the matter of costs illustrates that in only very limited circumstances will an appeal of a costs award (as a stand-alone issue) be granted.
The Court of Appeal’s approach in the Gopie decision serves as a useful example of the limited scope of appellate intervention in civil jury trials. The Court’s approach with respect to: the admissibility of evidence of prior criminal convictions, expert evidence, causation, the failure to object to a jury charge, and costs provides a useful review of how such matters are handled in our court system today.
The moral of this story is that it is incredibly difficult, although not impossible, to overturn a civil jury verdict and consequent judgment. Given the significant expense of judicial and other resources inherent in a lengthy jury trial, it is perhaps sensible that jury verdicts not be overturned unless a substantial wrong or miscarriage of justice has occurred.
We hope this article proves helpful in demonstrating the scope of permissible appellate intervention and the nature of the high, though not unassailable, bar when it comes to overturning a civil jury verdict.
 2019 ONCA 402.
 Geoffrey D.E. Adair, On Trial: Advocacy Skills, Law and Practice, 2nd edition (LexisNexis 2004) at page 274. For an excellent discussion of the evidentiary issues surrounding the admissibility of criminal convictions in the civil context and the application of the Evidence Act provisions (i.e. s.22) in this context, see Geoffrey D.E. Adair, On Trial at pages 267 – 279.
 Adderley v. Bremner,  1 O.R. 621, 67 D.L.R. (2d) 274 at para 8; Blake v. Dominion of Canada General Insurance Co., 2015 ONCA 165 at para 59. For under the common law doctrine see: McCabe v Roman Catholic Episcopal Corporation for the Diocese of Toronto, in Canada, 2019 ONCA 213 at para 23.
 See for example Lurtz v Duchesne,  O.J. No. 1541 at para 17.
 R. v. Burnett, 2015 ONCA 790 at paras 148 & 149. However, it has been held recently that if the absence of an objection was a tactical decision made by trial counsel, the failure to object can be fatal to an appeal even in the criminal context: see R v Calnen, 2019 SCC 6 at paras 38 – 41.
 Marshall v. Watson Wyatt & Co.  O.J. No. 84 (ON CA) at para 15.
 Bruff-Murphy v. Gunawardena, 2017 ONCA 502 at para 69.
 Landolfi v. Fargione,  O.J. No. 1226 at para 101.
 Bruff-Murphy v. Gunawardena, 2017 ONCA 502 at para 70.
 In Iannarella, the court noted where there is an error of law on the onus of proof, the failure to object has no relevance. Iannarella v. Corbett, 2015 ONCA 110 at para 22.
 Gopie v. Ramcharran, 2019 ONCA 402 at para 10.
 The Court of Appeal has previously held that “a costs order should not be set aside unless the trial judge made an error in principle or the order is plainly wrong,” see Carroll v McEwan, 2018 ONCA 902 at para 58.
School Boards, Teachers, and Student Fights
The responsibility given to school boards and teachers for ensuring the safety of all students on school premises is a cornerstone of our educational system. School boards enact policies and teachers supervise and instil disciplinary measures that regulate student behaviour.
That being said, sudden and spontaneous events, such as violent fights between students, erupt in school hallways on any given day. The continued overcrowding of schools in certain pockets of Ontario compound the occurrence of student fights and force school boards to take reactive measures in this regard.
It would seem a precarious standard to hold school boards and teachers liable for the consequences of every single student fight. After all, teachers are not the prison guards to a population of student inmates, despite the wishes of many parents.
In Tilli v. Hamilton-Wentworth Catholic District School Board, the Ontario Superior Court of Justice drew a line with respect to the liability of school boards and teachers for fights that break out on school property.
Explored in further detail below, the liability of school boards and teachers for fights on school property depends on factors such as whether the school could have anticipated the fight and what supervisory protocols the school had in place.
Two 15-year old students started a “consent fight”, denoted by the willing participation of both students at the outset, in between their period 1 and 2 classes in the second floor hallway of St. Jean de Brébeuf High School (“St. Jean de Brébeuf”) in Hamilton. The police and the paramedics attended the scene of the incident, with the defendant ultimately pleading guilty to criminal charges. The plaintiff advanced a claim for personal injuries sustained as a result of the fight.
The plaintiff (“Ms. Tilli”), the defendant (“Ms. DiTomaso”), and the multiple students who witnessed the fight all had different stories of how the fight played out. The Court accepted the following version of events. Ms. DiTomaso slapped Ms. Tilli in reaction to various derogatory names Ms. Tilli called her that morning, as well as on previous occasions. Hair pulling, kicking, and shoving ensued, which ended in both students falling to the floor, with Ms. DiTomaso on top of Ms. Tilli.
The fight, however, stopped being consensual when Ms. DiTomaso used unreasonable and grossly excessive force on Ms. Tilli, by grabbing her head and banging it forcefully on the tiled floor more than once. The Court found Ms. DiTomaso to be the winner of the fight the moment she landed on top of Ms. Tilli. In that moment, Ms. DiTomaso had total control and the discretion to not inflict further force, an unnecessary step to curtail a dissipated threat and beyond the justification of self defence.
Zero Tolerance Policy
St. Jean de Brébeuf has a history of violent student behaviour on school grounds. The high school had a zero tolerance policy for violence at the time of the incident, which it educated all of its students on, in accordance with the Safe Schools Act (which came into effect in September 2001), which prescribes schools with authority to enforce strict disciplinary measures.
The fight occurred in the hallway during the span of the three minutes in between classes. The high school had a supervision policy in place: during classes, unassigned teachers supervised certain hallways but in between classes, no supervision was required, as numerous teachers walked the hallways in transition.
The second floor hallway had 38 teachers in total transitioning between period 1 and 2 classes the morning of the fight, with at least 16 teachers who would have passed by the area of the incident.
The high school also had surveillance cameras to monitor the premises.
Standard of Care
The standard of care is that of a careful and prudent parent, in this case, that of a parent of a 15 year old teenager. Even a careful parent does not, and perhaps more accurately cannot, constantly supervise a 15 year old teenager.
Ms. DiTomaso and Ms. Tilli did not have a predisposition to violence towards each other. These students were also aware of the high school’s zero tolerance policy on fighting and the serious consequences, which would stem from any breach of this policy. Ms. Tilli led no evidence as to what measures the high school should have implemented to prevent the fight.
The Court’s Decision
Justice Arrell found Ms. DiTomaso to be 60% liable for the damages inflicted with the use of excessive force, and Ms. Tilli to be 40% liable for provoking the fight, which was tantamount to contributory negligence.
The Court dismissed the action as against the teachers and Hamilton-Wentworth Catholic District School Board, on a with costs basis, having found no liability on the teachers and the school board.
Justice Arrell set out:
“It is not lost on this court that this was a sudden and spontaneous event that escalated and finished in approximately 30-45 seconds. Only by having a teacher posted in the exact area of this incident, at the very time it occurred, could the school perhaps have prevented the fight from occurring. Such a standard is not reasonable…”.
Although the Court in this case found no liability as against the school board or the teachers at the school, schools boards and schools should be cognizant of the supervisory and disciplinary measures that they maintain to prevent student injuries.
It may be prudent to install and monitor surveillance cameras in crowded areas, where noise typically prevents incidents from gaining immediate attention, and to assign designated teachers to monitor different areas of the school, as they transition between classes.
In the past decade, some schools have been softening their zero tolerance policies in consideration of mitigating factors, which advocate for the application of discretion to void or limit mandatory disciplinary measures. Perhaps this should be reconsidered.
Although, in this case, the students did not have a record of violence, teachers and administrators should be careful to not turn a blind eye to potential disputes that can develop between students.
Further, schools should keep a well documented record of supervisory protocols/plans and disciplinary events.
Incidents between students cannot be completely prevented. However, school boards can minimize the risk of legal liability by having appropriate policies in place and by ensuring that those policies are followed.
Partial Summary Judgment – An Option No More?
Over five years after its release, it seems almost trite to say that the Supreme Court’s decision in Hryniak v. Mauldin was intended to facilitate efficiencies and cost-effectiveness in the adjudication of civil matters through the use of summary judgment motions. Indeed, the Supreme Court quite explicitly alluded to courts needing to change their practices in order to further access to justice through the effective use of such motions.
A question that has arisen recently, however, seems to be the extent to which those judicial directives apply to cases where “partial summary judgment” is sought.
Farooqi v. Lorenzo – Court Refuses to Schedule Motion
In Farooqi v. Lorenzo, a case involving a multi-party motor vehicle accident, Justice D.A. Wilson was faced with a defendant tow truck driver seeking to bring what Her Honour termed a “partial summary judgment motion” for an order that no liability rested with the tow truck driver and dismissing the action against him only.
The tow truck driver had attended at the scene of an accident and had been talking to the main plaintiff when a collision between co-defendant vehicles caused a co-defendant vehicle to hit the plaintiff.
Although the plaintiffs, a co-defendant and a third party intended to consent to the motion, one set of co-defendants intended to oppose the motion.
Justice Wilson refused to schedule the summary judgment motion sought. Relying on Hryniak and Court of Appeal authorities, Her Honour indicated that such motions for partial summary judgment ought to only be considered in rare cases and that a dismissal against only the one defendant risked creating duplicative proceedings or inconsistent findings of fact.
Justice Wilson’s decision in Farooqi appears to stand at odds with a number of appellate authorities including, perhaps arguably, Hryniak itself.
While the Supreme Court in Hryniak did indeed speak to the risk of duplicative proceedings or inconsistent findings of fact in partial summary judgment cases where claims against some of the parties would proceed to trial in any event, the Court went on to note that “the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.”
Court of Appeal Authorities
Subsequent to Hryniak, the Ontario Court of Appeal has also weighed in on the issue of partial summary judgment. In Butera v. Chown, Cairns LLP, an appeal of a motion granting partial summary judgment dismissing only certain claims of misrepresentation against the defendants, the Court of Appeal appeared to express wariness about partial summary judgment.
The Court noted that the issue ought to be considered from the perspective of whether there was a risk of duplicative or inconsistent findings at trial and whether partial summary judgment was advisable in the context of the litigation as a whole.
The Court went on to point out a number of problems posed by partial summary judgment motions that would seem counter to the objectives of Hryniak, including delay in resolution of the main action, expense, and judicial burdens.
That said, while the Court in Butera noted that the partial summary judgment motion course should be considered a rare procedure, the Court did indicate its appropriateness in cases with “an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.”
In Larizza v. Royal Bank of Canada, an appeal of a motion granting partial summary judgment by dismissing the action against two of the defendants, the Court of Appeal seemingly affirmed the appropriateness of such partial summary judgment in clear cases with standalone claims readily separable from the balance of the case.
The Court endorsed partial summary judgment where the motion judge is satisfied that the issues can be readily bifurcated from those in the main action and addressed in a focused and cost-effective manner.
Most recently, in Extreme Venture Partners Fund LLP v. Varma, another appeal of a motion granting partial summary judgment and dismissing the plaintiffs’ claim against only one of several defendants, the Court of Appeal dismissed the appeal on various grounds. The Court rejected an argument that the case was not proper for partial summary judgment.
The Court noted, in fact, that the issue was not partial summary judgment “as the claim against the respondent was dismissed in its entirety.” While this comment would seem inconsistent with the Supreme Court’s comments in Hryniak (noted above), the Court did point out that the motion judge did not err given that the claim against the respondent “could be determined on a discrete legal issue pertinent only to the liability of the respondent”.
In light of these appellate authorities, Justice Wilson’s decision in Farooqi to not even schedule the sought partial summary judgment motion, on what was acknowledged to be a limited factual record before her, seems unexpected.
One questions how the defendant tow truck driver could face liability in the circumstances of the case as described. Arguably, that defendant’s liability is a discrete and extricable issue.
While the opposing co-defendants alluded to forthcoming expert engineering evidence on the issue of liability, that in itself hardly amounted to evidence of liability on the defendant tow truck driver. Certainly, the forthcoming evidence ought not to have precluded the mere scheduling of the requested motion.
Moreover, if the Court of Appeal’s decision in Extreme Venture Partners Fund LLP were to be relied on, the requested motion before Justice Wilson might not even be considered partial summary judgment.
Ultimately, although Farooqi may pose somewhat of a barrier, it would appear that partial summary judgment remains available in clear cases of extricable issues from the remaining litigation, with minimal risks of duplicative proceedings or inconsistent findings of fact.
For example, partial summary judgment should be considered the appropriate course in some multi-vehicle accident cases (where it is clear that one or more drivers was not involved in the accident and/or is clearly not liable), missed limitation period cases, cases where an incorrect party has been named, and in some cases involving different causes of action against different defendants (e.g., occupiers’ liability claims against some defendants and motor vehicle negligence claims against other defendants).
Consistent with Hryniak, the dismissal of an unnecessary defendant can significantly advance access to justice and be the most proportionate, timely and cost-effective approach. It can reduce litigation costs; it can focus the remaining parties on the real issues in dispute, thereby increasing the potential for settlement; and it can shorten the length of trials, thereby saving judicial resources.
It is respectfully submitted that courts should embrace an approach where proceedings can be reasonably streamlined and efficiencies can be created.
 2014 SCC 7.
 2019 ONSC 2547.
 Ibid at para 60.
 2017 ONCA 783.
 Ibid at para 34.
 2018 ONCA 632.
 2019 ONCA 446.
 Ibid at para 9.
Cautioning Customers for Conditions of a Curb
In May 2019, the Ontario Superior Court of Justice released its decision in Ali v. Smart REIT, 2019 ONSC 2824 (“Ali”), granting the defendants’ request for summary judgment against the plaintiff who tripped on a curb leading to the entrance of a shopping plaza.
The plaintiff was walking towards a shopping plaza owned by the defendants when she tripped and fell on a curb located between the parking lot and sidewalk. Next to or where the plaintiff fell, there was a curb-cut which sloped down to the parking lot surface to provide barrier-free access for people in wheelchairs or with walkers.
The exact location of where the plaintiff placed her footing on the curb before she fell was not captured on CCTV footage.
The plaintiff claimed that the defendants were negligent and breached their duty of care imposed by section 3 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”), to take reasonable care in all of the circumstances to keep their premises reasonably safe for persons entering into the premises.
The main allegations against the defendants was that the curb was uneven and that the absence of yellow paint marking the curb breached the standard of care.
The Summary Judgment Motion
The two legal and factual issues on the summary judgment motion were: 1) whether the defendants failed to meet the standard of care; and 2) if the defendants breached the standard of care, whether that breach caused the plaintiff’s fall.
On the summary judgment motion, Justice Copeland considered photographs of the curb, the plaintiff’s evidence, a video of the fall, an opinion of a defence engineering expert, and the evidence of a manager of a store located near the curb.
She concluded that “…it was plain and obvious that the defendants met the standard of care imposed…” under the OLA.
In particular, Justice Copeland considered the following factors in reaching her conclusion that the curb, including the curb-cut, complied with the standard of care and did not pose an unreasonable risk to people attending the plaza:
- The curb appeared to be an ordinary sidewalk curb, which a pedestrian could encounter in a variety of locations in the greater Toronto area.
- According to the opinion of the defence engineering expert, which she accepted, the curb was neither unusually high nor unusually low. The curb did not contravene any municipal or provincial by-laws or building standards.
- The curb and the curb-cut were in a good state of repair.
- The curb and the curb-cut were clearly visible. The view of the curb was not obstructed for pedestrians approaching it.
Of interest, Justice Copeland agreed with the plaintiff that painting the curb a contrasting colour may make the curb more visible, and for that reason safer; however, the absence of a contrasting colour did not mean the defendants fell below the standard of care.
Justice Copeland considered her own experiences in the greater Toronto area where most curbs are not painted a contrasting colour, and that there is no code or regulation requiring that this particular curb be painted, according to the defence expert engineer.
Even though the curb was painted yellow sometime after the accident, Justice Copeland was not persuaded that the standard of care requires that sidewalk curbs be painted a contrasting colour.
Since Justice Copeland found that the defendants did not breach their duty of care, it was not necessary for her to deal with the issue of causation; however, she addressed this issue in the alternative.
The defendants argued that the plaintiff was unable to say exactly where she tripped or exactly how she tripped; therefore, the plaintiff’s evidence was too uncertain to establish causation.
The plaintiff argued that she is not required to pinpoint the exact place of her fall and that causation is not required to be proven with scientific precision.
Justice Copeland concluded that had she found that the defendants breached the duty of care, she would have held that there was a triable issue in relation to causation.
Ali demonstrates the importance of determining the applicable standard of care for occupiers in various situations.
Just because a plaintiff may be able to point to something more that an occupier could have done to make their premises safer, this does not equate to a breach of a standard of care. Occupiers are held to a reasonableness standard.
As stated by Justice Copeland “…people fall in the absence of any wrongdoing on the part of another. It is unfortunate, but it happens…”.
Top Tips for Conducting an Examination-in-Chief of an Expert Witness
By Anita Varjacic and Colleen Mackeigan, Student-at–Law
To achieve success at trial it is of pivotal importance that you properly and convincingly present the theory of your case and the evidence in support of it.
In many areas of the law, such as personal injury and medical malpractice, the examination-in-chief of your expert can be indispensable to your ability to convey your case convincingly before a trier of fact.
This paper will present practical tips for conducting an examination-in-chief of an expert witness and some necessary steps to take before you are actually in the courtroom.
(1) Be mindful of the Rules
An expert must have his or her findings, opinions and conclusions recorded in a report compliant with the requirements outlined by Rule 53.03(2.1). This report must be served on the opposing party at least 90 days before the pre-trial conference.
A responding expert report must be served at least 60 days before the pre-trial conference, and as of January 1, 2019, supplemental reports are to be served at least 45 days prior to trial, with responding supplementary reports to be served at least 15 days prior to trial.
(2) Know your expert
When an expert witness is qualified before the court, his or her CV will be admitted into evidence. Counsel will thus want to ensure that the expert’s CV is accurate and up to date.
If counsel is unfamiliar with the expert, it is best practice to do background research to ensure that no aspect of the expert’s CV has been overstated or fabricated. You should also ensure that there is nothing in the expert’s CV that is contradictory to his or her proposed testimony.
You should address any gaps in your expert’s CV, or any questionable aspects of your expert’s qualifications, or lack thereof. For example, any gaps in the expert’s work history or a qualification of the expert that may have been obtained in a manner uncommon to other professionals in the relevant field should be addressed. This will avoid the possibility of a cross-examination on your expert’s CV that will undermine his or her credibility.
If the expert retained is commonly before the courts in the capacity of a litigation witness, you should utilize a legal search engine to see how the expert has been treated by the court in previous cases.
If the expert has received negative commentary from the court, you will want to have knowledge of this and be prepared to address it.
(3) Prepare with your expert
The expert should be made aware of the questions he or she will be asked during the examination-in-chief and counsel should be aware of the answers the expert plans to give. This is particularly important when your expert is less experienced in giving testimony before the court.
You should also review areas and questions that you anticipate will likely come up during cross-examination.
(4) Know your expert’s report
An expert’s report defines the four corners of the opinion evidence that can be given. As such, counsel should be aware of the parameters of the report and ensure that the report is compliant with Rule 53.
If there is any fundamental evidence you need to prove your case, consider whether a further supplementary report is required.
(5) Know specifically what you want your expert to be qualified for
Know well in advance of your examination-in-chief precisely what you want your expert to be qualified for. You should write this down so that you can pass a copy to the judge and opposing counsel during the qualification portion of your examination-in-chief.
If you expect any issues from opposing counsel, you should share the proposed qualifications in advance.
(6) Clear and concise qualification
The expert should be led through the highlights of his or her CV that are relevant to the expertise he or she is to be qualified for. Highlights such as academic training, work experience, publications and past proceedings wherein the witness has been qualified as an expert in the delineated area, should be presented to the trier of fact in a clear and concise manner.
Even if the expert is qualified on consent, it is important to review his or her credentials in front of the trier of fact to give further weight to your evidence.
(7) Organization and presentation of materials
In support of a clear, concise and precise qualification of an expert witness, counsel should make use of the available technology in the courtroom and have the expert’s CV brought up on a monitor for ease of reference for both the expert and trier of fact.
Further, counsel should plan to have as much of the expert’s evidence as possible presented in an easy to digest and user friendly way through the use of diagrams, charts and other visual aids if possible.
(8) Lead your expert through the evidence logically
In keeping with the theme of a clear, concise and precise examination-in-chief, counsel should proceed to lead the expert through the following subject matters in sequence:
- what instructions the expert was given by counsel in relation to the proceeding (i.e. whether the expert was asked to conduct a defence medical assessment of the plaintiff or asked to provide a reply report to the opinions formed by experts retained by the opposing party, etc.);
- the expert’s opinions stemming from his or her findings;
- what, if any, documents or information the expert was given that informed his or her opinion;
- what the expert’s findings are as a result of what the expert was instructed to do; and
- restate the opinions reached.
(9) Get out in front of any weaknesses or holes in your expert’s evidence that may come up during cross-examination
The examination-in-chief presents a valuable opportunity to have potential holes or weaknesses in your case addressed and potentially rectified. This detracts from the impact that such issues will have if first brought up by opposing counsel during cross-examination.
In taking advantage of this opportunity it is important, however, to stay within the confines of the expert’s report and his or her qualifications.
A good examination-in-chief of an expert witness can be imperative to the success of a case. This is counsel’s opportunity to have opinion evidence proffered that is favorable to their theory of the case. It is also an advantageous time to address potential weaknesses. As such, conducting a concise and convincing examination-in-chief is critical to success.
Winds of Change Blowing for the Insurance Industry
There are few news stories that arouse the imaginations of the Ontario electorate as insurance reform. One can only assume that tweaks to the Insurance Act regulations will be the talk of the summer, from patios to cottage docks. All joking aside, however, it is clear that some of the proposed changes are significant for consumers, and will likely trigger some heated debate amongst those in the industry.
Currently the government is in consultation with various groups, including representatives of the insurance industry, and with lawyers who practice personal injury law. A chapter in the provincial budget outlined an ambitious breadth of changes, many of which are still in the very preliminary stages of being considered.
Here is a brief breakdown of some of the changes outlined in the provincial Budget:
Move to digital
There is a clear focus on modernizing the process of purchasing insurance and making claims, a push to simplify the online and digital process that consumers find confusing. There is also a focus on ushering in electronic proof of auto insurance. These changes look to be a priority for the government, and if successful, should make things easier on consumers of insurance right away.
As it currently stands, consumers can opt into increased benefits through their insurance plan, including increased amounts for income replacement benefits, and health care benefits, all in the event that the consumer is in an accident. In the Budget the government is proposing increasing the breadth of options that insurers can provide to consumers.
Practically-speaking, this would allow consumers to better tailor their insurance to fit their preferences. While one school of thought is that consumers will automatically default to the lowest-cost coverage, that is does not appear to be the case under the current regime, where the minimum third party liability limits are $200,000, but almost everyone elects for coverage of $1 million or more.
Car subscription services
One interesting proposal comes in response to the increasing popularity of short-term vehicle subscription services such as Zipcar or Car2Go. These services allow members to simply hop into cars which are parked at convenient locations throughout the province, and just drive off, paying by account based on the amount of time used.
One government proposal is to allow for vehicle subscription services that include insurance, which would certainly be a boon to this growing market.
Medical treatment providers
The government is weighing into the controversial world of medical assessments for those involved in accidents. There are a number of issues on this topic, many of which have become prominent news stories.
There are cries that medical assessors retained either by insurance companies or plaintiffs are not objective. There have also been some high profile criminal investigations into fraud by clinics that feed off the accident benefits system.
The proposed changes to this program are varied, but include:
- overhauling the licensing system for health service providers to reduce regulatory burden and fraud;
- lower fees charged by treatment providers; and
- reform the medical assessment process.
This third item relates to concerns over medical assessor objectivity. It is not clear at present how the government hopes to accomplish this, but more may be revealed following ongoing consultations with stakeholders.
Increased accident benefits limits
It seems like only yesterday that the default combined limit that an injured individual could recover for attendant care and medical/rehabilitation benefits was reduced from $2 million to $1 million (2016, for those keeping score at home). Well, the government is keen on turning back that clock, and increasing this limit back to $2 million.
This is good news both for seriously injured individuals who would not normally have opted for increased benefits, and for insurance companies that will collect premiums on this adjusted amount.
Increase in Simplified Procedure jurisdiction
There has been talk for many years of increasing the monetary limit for cases brought under the rules for simplified procedure. The government is keen to make this happen, although few details were provided in the budget documentation.
Before personal injury lawyers run to begin issuing all of their claims under the simplified procedure, however, it should be noted that in the past when this change has been proposed, it came with procedural restrictions, such as:
- a cap on the costs recoverable at trial at $50,000;
- a cap on the disbursements recoverable at trial at $25,000;
- a cap on the number of days of trial at 5 days;
- examination in chief only by way of affidavit; and
- a rigorous application of the three-expert rule.
Of note, the government just recently passed legislation that mandates that the issues of fact and assessment of damages in actions proceeding by way of simplified procedure, shall be tried without a jury.
In the event that the monetary jurisdiction for simplified procedure matters is increased, along with all or some of the above changes, it will be interesting to see whether more plaintiffs will elect to proceed by way of simplified procedure.
As it stands, a good number of actions settle at or below $200,000, and the temptation for plaintiff counsel to take avail themselves of some of the strategic advantages of proceeding under this rule – such as limited examination for discovery and the lack of a jury – will make for a some interesting decisions when issuing a claim.
At the very least, there would be clear advantages to litigants of smaller matters to bring their actions under a faster and more cost-effective procedure, without the bloating of a standard trial.
It is safe to say that most of these changes are not on the immediate horizon, but the fact that the government has already begun consultations on these Budget issues is indicative of a will to move on them. At the very least, cottage country will surely be buzzing with talk of this legislative change – at least once talk of the Raptors’ run has subsided.
What’s Happening at Rogers Partners
- Rogers Partners is delighted to be celebrating its 25th anniversary this year. We thank our clients, employees, and everyone else who has helped us achieve this milestone.
- In April 2019, Meryl Rodrigues was successful in a motion to dismiss a medical malpractice action.
- Alon Barda was successful in a costs decision in April 2019. After a lengthy trial in the case of Davies v. Clarington, the defendants were collectively awarded costs of over $2.3 million.
- Stephen Ross and Meryl Rodrigues have written an updated comprehensive paper on the collateral benefits/tort interface. The initial version of this paper was referred to in a Court of Appeal decision.
- In May 2019, Alon Barda spoke at an Ontario Bar Association conference called “At the LAT – Be Prepared for Your License Appeal Tribunal Appearance”. Alon’s topic was “Making the LAT Work for You”.
- In May 2019, Stephen Ross and Meryl Rodrigues were successful in defending a Supreme Court of Canada leave to appeal application in Imeson v. Maryvale. The case addresses the scope and limits of evidence from participant experts, as well as the admissibility of expert evidence in general.
- Carol-Anne Wyseman joined the firm as an associate in May 2019.
- A widely-read article written by Stephen Ross and Andrew Yolles on a new and restrictive approach to piercing the corporate veil has been published in the Summer 2019 edition of The Advocates’ Journal.
- In June 2019, Rogers Partners held its 25th annual employee summer party. We worked together assembling and painting nightstands, which will be donated to Habitat for Humanity. We then carried on with a fun evening of food and drinks.
- Colleen Mackeigan has successfully completed her articling term and will be joining the firm as an associate in July 2019.
- We are excited to introduce the RP Blog! For regular case updates, commentaries, and firm news, please visit our blog on our website.
From the Desk of David Rogers
Automated Vehicles and the Future of Automobile Insurance in Ontario
A few years ago, I listened to two friends have a long discussion about the relevance of automated vehicles. One friend believed people physically driving vehicles would become a thing of the past over the next 20 years. The other felt automated vehicles would never fully catch on as most humans enjoy driving and being in control of their own vehicle.
I, for one, dislike driving, especially for long stretches on large highways and would welcome a sophisticated computer system to take on that burden. But is this a reality? If so, will it be safe? Most importantly for some, what are the insurance implications?
Well, just maybe the automated vehicle is the long sought after solution to many of the problems found in Ontario’s current automobile insurance regime.
Automated Vehicles are Coming
Most people in the insurance industry know that fully automated vehicles are coming. It is now not a question of if, but rather where, how and for whom.
There are currently six recognized levels of self-automation in vehicles. These range from zero to five, with zero being a fully human operated vehicle and five being a fully automated vehicle with no steering wheel, gas pedal or other manual functions. Currently, partial self-automation is included in most new vehicles, including cruise control, lane departure warnings and automated braking.
Studies suggest there will be 21 million fully automated vehicles on the roads by 2026. The Victoria Transportation Policy Institute predicts that half of all new vehicles sales in Canada will be fully automated by 2040. There are already automated shuttles running in certain North American cities and university campuses.
It is anticipated the next use of this technology will come through ride share programs such as Uber and automated taxi services, possibly followed by automated farm equipment, mining machines and delivery vehicles, including long haul transport trucks. Perhaps we will see the end of most privately owned passenger vehicles, with a small percentage of the population who actually enjoy driving being the exception.
Automated vehicles will most certainly create safer roads for the people of Ontario. The U.S. National Highway Traffic Safety Administration states that human error is the cause of 90 percent of motor vehicle collisions in that country.
Reliance on cameras, sensors and computer systems removes the problem of human error and significantly increases the ability of a vehicle to avoid a collision.
This technology will continue to advance and improve, which should significantly reduce the number of motor vehicle accidents that occur, and in turn, the number of people being injured.
Impact on Motor Vehicle Litigation
However, collisions will still occur. There will always be accidents between non-automated vehicles, but also between automated and non-automated vehicles and even between fully automated vehicles.
An important question then is: who is at fault? Is it the driver? Is it the owner? Is it the manufacturer, or is it the designer of the technology itself?
One can envision a scenario where apportioning fault for a motor vehicle accident turns into an overly complicated product liability dispute between multitudes of large sophisticated parties. There may be fewer claims, but those claims that do come forward will be significantly more complicated and expensive.
Take for example a straightforward rear-end collision involving an automated vehicle, where a person sustains a whiplash injury. Litigation over that person’s entitlement to damages would require a determination of fault, and whether there were failures in components of the automated vehicle, and if so, which ones.
For instance, was there a failure in the vehicle’s software or was the software not updated properly? Was it caused by a faulty sensor? Was there a manufacturer defect with a key component, or was it some tiny sub-component that failed? How difficult, and expensive, would it be for an injured plaintiff to prove fault in this scenario?
Solutions and the Future of Motor Vehicle Insurance
In order to avoid this problem, consideration should be given to a regulatory framework where a single party, such as the vehicle manufacturer, is deemed responsible for any defect with the vehicle, and a claim is resolved with the injured person on that basis. That party can in turn claim over against any of the other potentially liable parties.
There could even be some type of an agreement between vehicle manufacturers, dealers and software developers in order to apportion the risk between them, and avoid the extensive costs of litigating these types of disputes.
This framework is consistent with a recent recommendation made by the Insurance Bureau of Canada (“IBC”) in an attempt to update insurance coverage in light of the rise of automated vehicles.
The IBC has recommended the establishment of a single insurance policy covering both driver negligence and a vehicle’s automated technology in order to better facilitate these type of liability claims.
A single insurance policy such as this would require the insurer to provide coverage for compensation to a person injured in a collision involving an automated vehicle, regardless of why the collision occurred.
Thereafter, that insurer would be able to take a further step, and recover some or all of that payment from the vehicle manufacturer, the technology provider or some other responsible party.
This second step could proceed through a streamlined dispute resolution process, and the IBC has also recommended establishing a legislated data sharing arrangement between automated vehicle manufacturers, vehicle owners and insurers to help with this process.
Automated vehicles are coming to Ontario, and with them comes great potential. The ideas outlined above, and insurers with forward thinking and innovated approaches to these types of coverages, could perhaps be the solution to some of the insurance problems that have plagued successive governments in Ontario for decades. This very well could be the future of Ontario automobile insurance.