April 29, 2020, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Girao v. Cunningham, 2020 ONCA 260
Date of Decision: April 21, 2020
Heard Before: Lauwers J.A
PROCEDURE and EVIDENCE: The Evidence Act particularly distinctions between section 35 and section 52; evidence of experts and non-party experts; jury advice; personal injury actions; joint trial brief; inconsistent trial practice and directions of court; numbered versus lettered exhibits at trial; readiness of expert witnesses to be called to testify; importance of accepting expert witness oral testimony; details of an accident benefits settlement will rarely be admissible
The appeal arose from a car accident in 2002 in which Ms. Girao alleges she sustained a back and neck injury causing pain, and which eventually became a chronic issue. Other symptoms developed including a major depression. Her injuries prevented her from continuing her work as a cleaner.
Ms. Girao represented herself at trial. English is not her first language and there were significant issues as a result.
The defendants took the position that the car accident was a minor one pursuant to the SABs . They held the position that Ms. Girao had a pre-existing history of psychiatric issues. They argued that she was making more from her SABs benefits than she would going to work as a cleaner and was in fact malingering.
In their decision the jury awarded Ms. Girao non-pecuniary general damages of $45,000 and also awarded damages for past loss income of $30,000. However, the trial judge ruled that Ms. Girao did not meet the threshold for the non-pecuniary general damages, and the loss of income benefit was reduced to zero after the deduction of the SABs. As a result Ms. Girao received no money, and she was ordered to pay the defendant’s significant fees and disbursements of more than $300,000.
On appeal Ms. Girao again defended herself.
The Court of Appeal ordered a new trial on the basis that there was a substantial wrong or miscarriage of justice. In particular the Court of appeal noted the unfairness regarding witness testimony. The accident benefits assessor called by Ms. Girao was not permitted to testify regarding his report. The second point of unfairness was that the defense relied on a doctor’s report without making the doctor available to Ms. Girao for cross-examination regarding the truth of its contents. Finally the Court of Appeal ruled that defense counsel acted improperly when they cross-examined Mr. Girao regarding her accident benefits settlement.
The Court of Appeal addressed the governing principals of a court and the assembly of a trial record. The Court went on to note problems with the trial document brief. They should be admitted as authentic and admissible and should reflect 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.
The court went on further to state that:
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 becomes even more important when a party is self represented and the opposing lawyer prepares the brief.
Joint books of documents must be prepared according to their purpose and this must be the case as a matter of ordinary civil trial.
The Court of Appeal expanded on its decision in Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165. The use of document briefs at trial can range from
“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”.
In Girao the Court of Appeal indicated that several questions must be addressed as the court and counsel use joint books of documents. These include the following:
- Are documents used either originals or admitted as true copies of originals? Are joint books admissible without the proof of the originals?
- Can it be assumed that all of the documents and correspondence in joint books are prepared, sent and received on the dates set out in the documents unless otherwise noted or shown in evidence at the trial?
- Is the content of a document admitted for the truth of its contents or do the contents veracity need to be separately at trial?
- May parties introduce additional evidence not mentioned int eh document book?
- 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?
- If a joint book of documents is not prepared jointly can either party object to a document contained in it?
The Court of Appeal determined that in all civil cases it’s preferable for counsel to have a written agreement addressing these questions, and that the trial judge and counsel go through such agreements line by line on the trial record in order to avoid misunderstandings. The Court of Appeal also noted that it is preferable that joint books be prepared well in advance of trial, not in the last minutes beforehand.
Without an agreement between counsel on the use of documents, and pursuant to the Evidence Act and admissions by the opposing party, counsel should be prepared to call the authors of all the documents at trial as required.
Exhibits at trial were also addressed in the Court of Appeal decision. Particularly the court indicated that documents introduced at trial must either be numbered or lettered and that the distinction between using numbers or letters is significant. Numbered exhibits go to juries during deliberation, but lettered exhibits do not, according to trial judge discretion.
The Court of Appeal also noted the importance of understanding that when dealing with expert reports it is understood that his/her oral evidence is admissible evidence at trial. They also noted the importance of making expert reports lettered exhibits in order to allow the integrity of the trial record on any appeal.
The Court of Appeal went on to discuss the distinction between expert witness under fule 53.03 of the Rules of Civil Procedure versus ‘participant experts” or “non-party experts”. The latter two may be entitled to provide option evidence. Treating physicains for example, form opinions based on their participation in the treatment process and other events.
A medical assessor for example would be considered a non-party expert. They are retained by a non-party to the litigation at hand. They form their professional opinions on the case based on their personal observations, examinations, and the facts of the case.
The same rules apply to the admissibility of opinion evidence from non-party and participant experts as do to litigation experts. The evidence provided must be provided by a properly qualified expert, it must be relevant, necessary to the case, and it should not be excluded.
The trial judge, again, is the gatekeeper for the rules and process.
The Court of Appeal went further and discussed the distinctions between Section 53 and Section 52 of the Evidence Act. Section 35 concerns business records, specifically:
“any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if 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, transaction, occurrence or event or within a reasonable time thereafter”.
The Court of appeal considered the following comment from Westerhof: which concluded that it is not a poper basis on which to admit option evidence:
“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”.
If a party does want to admit document under sec. 35 both parties should ensure there anu impermissible opinion evidence in the documents has been fully redacted.
Section 52 of the Evidence Act concerns itself with medical reports signed by a practitioner and it permits the court to admit these reports on their own. The medical practitioner‘s option can be entered on the truth of its contents. A judge must allow opposing counsel to cross-examine any medical practitioner and if the practitioner is not made available on request then his/her opinion becomes inadmissible.
Documents admitted under the Evidence Act are subject to notice. Section 35 document notification must be served 7 days prior to trial while section 52 notice of intention must be received 10 days prior to trial.
Care must be taken when serving these notices and section 52 notification is only required when counsel wishes to admit medical practitioner reports for the truth of its contents as evidence. Upon listing a report at sec 52 documents the medical practitioner is the party’s witness and must be made available for cross examination by the opposing party.
The Court of Appeal went on to consider the admissibility of SABs settlements to the jury by defendants. The courts have long wrestled with this question and there is no consensus on this point. The Court of Appeal noted that trial judges have broad discetion to ensure that the proceedings of a trial result in fairness. It becomes the judge’s responsibility in tort actions to determine how much if any evidence about the accident benefits settlement is admitted. This decision is based on principles of evidence law:
- Is the evidence relevant to a fact in issue in the tort action?
- Does the probative value of the evidence exceed any prejudicial influence it may have?
The Court of Appeal noted for example that evidence of the benefit settlement would be relevant and admissible if the amount would have an impact on the eventual calculation of tort dmages. They also noted that before any such evidence may be introduced pleadings must have addressed the matter clearly, and the consideration must be considered in real terms in a voir dire. The same principal applied to allegations of malingering or lacking motivation to return to work. The core issue according to the Court of Appeal must be a plaintiff’s ability to return to work, not any consideration of motivation to work or not work.
The Court of Appeal indicated that while counsel should be afforded broad latitude in their cross examination of plaintiffs, the questions must have a good faith basis, and may not be ‘sarcastic, personally abusive, derisive’ and they cannot be ‘cheap shots’. The Court of Appeal also stated that defence allegations of lack of motivation to work or malingering are easy to make and difficult to defuse by the plaintiff. The entirety of of a SABs settlement is rarely relevant especially in jury trials.
The Court of Appeal stated that it is important to be cautious about admitting the totality of a SABs settlement on public policy grounds as this can undermine tort claims and lead to unfairness at trial. It can also create an incentive for a plaintiff to keep the SABs claim live to avoid any settlement amount from becoming a defence weapon in any tort action.
In any case the Court of Appeal stated that if the accident benefits settlement comes into evidence before a just that the jury instructions should carefully explain hoe=w the Ontario motor vehicle compensation system works including the the fact that the plaintiff was entitled to the benefits. The trial judge should also explain to the jurty their distint roles in setting the amount of tort damages and accounting for any benefits received. Juries should be instructed to reduce damage awards on the basis that they believe the plaintiff is adequately compensated already.
Finally, the Court of Appeal went on to consider self represented litigants at trial. The Canadian Judicial Council issues a statement in 2006 – Statement of Principles on Self-represented Litigants and Accused Personas. In this it is noted that trial judges must where possible provide and impartial and fair process to prevent self-represented litigants from any unfair disadvantage. The trial judges have a special duty to self represented litigants that they not be denied relief on the basis of a minor deficiency in their case, and to acquaint them with the rules of evidence and court room procedure.
The Court of Appeal indicated that there must also be limits to this duty . Judicial impartiality must be maintained.
Trial judges should request the assistance of counsel (officers of the court) in legally complex topics by providing ‘briefing notes’ or statements of law.
Trial judges must also be pragmatic. A trial judge may consider whether a self represented individual complicates or lengthens a trial in their discharging the jury.