Skip to main content

The Importance of Raising Argument at the Court of First Instance to Preserve a Right of Appeal

By Erin Crochetière

The Court of Appeal recently heard an appeal of a trial decision holding the defendant driver liable for a collision with a cyclist and granting over 2.5 million in damages, in Sanson v. Paterson, 2023 ONCA 798.

The plaintiff, Ms. Geraldine Sanson, respondent on appeal, was a cyclist riding home in the sharrow lane, which is a lane denoted to be shared by bicycles and cars. She came to a stop at a traffic light. When the light turned green, she proceeded through the intersection, and then felt a car hit her bicycle, causing her to lose balance. She then felt a second impact with a car, which caused her to fall of her bicycle, striking her chin and forehead on the pavement. The driver of the vehicle, Mr. Paterson, defendant and respondent on appeal, approached her after the collision and identified himself as the driver of the car that hit her.

Mr. Paterson’s version of events was that the plaintiff was in the sharrow lane, but right up against the curb, leaving him enough room to pull up along side her in the lane. When the light turned green, he was focused on the lane ahead of him, and began to advance into the intersection. He did not see the cyclist but heard a noise and turned his head and saw the cyclist falling away from his car.

The trial judge found that the defendant had not paid attention to the cyclist to determine her position and whether it was safe for him to accelerate into the intersection. In this regard, the trial judge found that the defendant failed to discharge his reverse onus under s. 193(1) of the Highway Traffic Act, and found the defendant fully responsible for the collision.

With respect to damages, the trial judge accepted the plaintiff’s evidence that she was in the minority of patients who continue to suffer from mild traumatic brain injuries on an ongoing basis, and her injuries had persisted to the point that they would now be regarded as permanent.

The defendants advanced numerous grounds of appeal, including an appeal of the income loss award on the basis that the trial judge erred in in interpreting the expert actuarial evidence from the plaintiff regarding income loss. In particular, the defendant argued that the trial judge misinterpreted the inflation rate applied to the plaintiff’s expert’s estimate of future income loss, which resulted in an award in excess of the plaintiff’s requested relief. The Court of Appeal agreed that the trial judge had misinterpreted the evidence of the plaintiff’s expert and allowed this ground of appeal, varying the future income loss award to reflect the appropriate inflation calculations.

The defendants also argued on appeal that the trial judge erred in considering new expert actuarial evidence after the close of trial and in the course of the determination of the quantum of the income loss award. The judge had initially declined to consider a further report from the plaintiff’s actuarial expert, who had previously testified at trial. Plaintiff’s counsel subsequently sent e-mail correspondence to the judge containing calculations based on the new expert report. The Court of Appeal dismissed this ground of appeal on the basis that the defence had not objected to the use of this information at the time, and that the judge’s determination as to the quantum of income loss was available on the evidentiary record properly before him.

The defendants further argued on appeal that the trial judge improperly declined to deduct from the future care cost award residual amounts paid by the plaintiff’s accident benefits insurer for out-of-pocket expenses. Although a deduction had been made based on the $60,000 paid to the plaintiff by her insurer for out-of-pocket expenses, the plaintiff’s proven losses for out-of-pocket expenses amounted to just over $40,000. The defendant argued that the remaining approximately $20,000 should have been deducted from the future care cost award.

The trial judge declined to make any further deduction, stating that the $60,000 was already deducted from the out-of-pocket expenses claimed by the respondent and, in any event, he had received no such argument from the defendant regarding this deduction during trial. The Court of Appeal saw no reason to interfere with this ruling.

The defendants also argued that the trial judge erred in failing to apply negative contingency deductions to the future economic loss award and future care costs award. The Court of Appeal dismissed this ground of appeal as well, finding that the defendant did not ask for the application of contingencies at trial, and that the trial judge otherwise made awards under these heads of damage consistent with the evidentiary record. The Court of Appeal further noted that the plaintiff’s actuarial expert had testified that he had not applied any negative contingencies, and that he was not cross-examined on this issue.

The general rule is that appellate courts will not entertain new issues on appeal.[1] Consistent with this general rule, the key takeaway from this decision is that it is important for trial counsel to raise objections or arguments at the Court of first instance, as a failure to do so will restrict possible arguments on appeal.

[1] Kaiman v Graham, 2009 ONCA 77 at para 18.