April 03, 2020, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Manos v. Riotrin Properties (Flamborough) Inc., 2020 ONCA 211
DATE OF DECISION: March 16, 2020
HEARD BEFORE: Rouleau, Hourigan and Roberts JJ.A.
REASONS FOR DECISION
Manos was accidentally sprayed with a fire extinguisher by a Riotrin Properties employee. Manos commenced an action to recover damages for a respiratory injury. He claimed to suffer from reactive airways disorder syndrome (“RADS”) as a result of the incident. At trial, the only issues were causation and damages. The Riotrin too the position that the symptoms Manos was experiencing were the result of a pre-existing condition, or, alternatively, that he was malingering.
The trial judge found that Manos suffered from RADS triggered by the incident. He granted $225,000 in non-pecuniary general damages in addition to pecuniary damages, and damages for subrogated claims for Manos’s insurers.
Riotrin seeks a new trial or, in the alternative, a reduction in the amount of non-pecuniary general damages awarded. Its primary arguments are that the trial judge erred in the admission of the evidence of a participant expert, that his reasons were insufficient because he failed to consider relevant evidence of Riotrin’s experts, and that he erred in relying on foreign jurisprudence in making an award of non-pecuniary damages that was manifestly excessive.
Riotrin argues that:
- The trial judge erred by allowing Manos’ treating respirologist to give opinion evidence regarding his diagnosis of RADS that went beyond the allowable scope for a participant expert. In response to an objection at trial that the respirologist was opining on the issue of causation, the trial judge distinguished etiology, being the medical cause of a disease or condition, from causation in the legal sense. He held that it was natural for a treating physician to consider the etiology of the condition he or she was treating. Therefore the repirologist was permitted to testify regarding his diagnosis as a participant expert.
- The trial judge ignored the distinction between legal causation and medical causation in his reasons and submits that the trial judge relied on the opinion regarding legal causation, which was not formed in the ordinary exercise of the respirologist’s expertise. In addition, Riotrin argues that the fact that the respirologist had prepared letters at the request of Manos means that he was engaged by Manos for the purposes of r. 53.03, of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
- That allowing a participant expert to give evidence as to the ultimate issue of causation, without requiring compliance with r. 53.03 and a report on the issue of causation, amounted to “trial by ambush” and was a breach of procedural fairness.
The Appeal Court are not persuaded by this submission. The trial judge did not rely on the evidence of the respirologist regarding legal causation. Rather, he permissibly relied on the evidence about his diagnosis, which was based on his observations and participation in the events as a treating physician. Further, we see no error in the trial judge’s conclusion that the drafting of the letters, including one addressed to the claims adjuster acting on behalf of Riotrin, did not result in a situation where the respirologist was required to comply with r. 53.03.
Adequacy of Reasons
Riotrin argues that the trial judge provided inadequate reasons because he did not explicitly consider the medical evidence of Riotrin’s witnesses regarding whether Manos is suffering from RADS. The parties provided conflicting expert evidence on this issue. The trial judge identified this central causation issue at para. 22 of his reasons:
With respect to the diagnosis of RADS and the overall issue of causation, the plaintiff called Dr. Duncan (family physician), Dr. Killorn (treating respirologist) and Dr. Mintz (expert respirologist). The defendant sought to discount their conclusions. I was ultimately persuaded that their opinions likely most closely reflected what has actually happened to Mr. Manos in medical terms. I accept the opinion evidence of Dr. Killorn and Dr. Mintz concerning their diagnosis.
Riotrin adduced evidence from three participant experts, Drs. Neighbour, McIvor and Anderson, that Manos does not have RADS. The evidence of Dr. Mate, Manos’s expert respirologist, was consistent with that conclusion. Aside from a reference to these physicians being called by Manos at trial and a reference to an alternative hypothesis of neutrophilic asthma presented by Dr. Mate, there is no consideration of their evidence in the trial judge’s reasons.
The closest the trial judge comes to analyzing the defence’s medical evidence related to the RADS diagnosis is at paras. 42-43 of his reasons:
I agree that Dr. Chaimowitz aptly described the majority of the specialists’ views regarding the plaintiff’s respiratory illness:
I do note fairly thoughtful and conflicting views about cause of his current respiratory presentation. The majority of those views seem to suggest that whatever predisposition he had to respiratory difficulties, or whatever respiratory difficulties he has had, the exposure to the ammonium phosphate from the fire extinguisher likely sufficiently irritated his airways that it caused a significant exacerbation in his condition sufficient that he likely developed RADS with only modest response to medications.
I would further concur with the view expressed by Dr. Chaimowitz that the most likely explanation is the one that seems the most obvious, which is that the plaintiff is a person whose previous reactive respiratory disease was exacerbated by the irritant from the fire extinguisher.
Proper reasons serve to: (i) justify and explain the result; (ii) tell the losing party why he or she lost; (iii) provide for informed consideration of the grounds of appeal; and (iv) satisfy the public that justice has been done: F.H. v. McDougall, 2008 SCC 53,  3 S.C.R. 41, at para. 98. For purposes of appellate intervention, the overarching principle is whether the reasons permit meaningful and effective appellate review: Dovbush v. Mouzitchka, 2016 ONCA 381, 131 O.R. (3d) 474, at para. 23.
With respect, the trial judge’s reasons are insufficient. There is no analysis of the evidence of Riotrin’s experts who testified that Manos does not suffer from RADS. Instead, he relies on an incorrect summary of the specialists’ views given by Dr. Chaimowitz, a psychiatrist, who mistakenly stated that the majority of the experts opined that Riotrin likely developed RADS as a result of the incident and who was not, in any event, qualified to opine on the RADS diagnosis. While it was open to the trial judge not to accept Riotrin’s expert evidence, his reasons had to demonstrate why he rejected it and that rejection had to be rooted in the evidence before him, otherwise his reasons would not be reasonably intelligible to the parties or amenable to meaningful appellate review: Hearn v. McLeod Estate, 2019 ONCA 682, 439 D.L.R. (4th) 217, at para. 29.
Thus, the trial judge did not engage on the critical causation issue. The result is that this court cannot effectively review the trial judge’s reasoning process on this critical issue. This ground of appeal succeeds, and a new trial must be ordered.
Non-Pecuniary General Damages
Riotrin submits that the trial judge erred by awarding non-pecuniary general damages of $225,000 and in relying on foreign jurisprudence in making that award. Given our conclusion that a new trial is required, it is unnecessary to determine this ground of appeal.
The appeal is allowed, and a new trial is ordered. The costs of the appeal are payable to Riotrin in the agreed upon all-inclusive sum of $22,500. The costs of the first trial are reserved to the judge hearing the new trial.