In the recent case Ali v. Irfan, the Court of Appeal upheld the jury verdict rejecting a loss of competitive advantage claim as a result of injuries sustained in a motor vehicle-bicycle collision.
Background
The action arose as a result of the plaintiff being struck by the defendant’s vehicle while she was riding her bicycle in Mississauga in 2015. The plaintiff was 29 years old at the time of the incident, and claimed she suffered ongoing psychological and physical injuries as a result and had therefore sustained a loss of competitive advantage. Prior to the start of the trial, the parties had resolved all issues except for whether the plaintiff had suffered a loss of competitive advantage. The jury returned a verdict finding that the plaintiff had sustained some psychological and physical injuries from the incident that were continuing to affect her, but she had not sustained a loss of competitive advantage.
The plaintiff appealed the jury finding, arguing that the jury verdict was unreasonable in that the jury accepted that she continued to suffer from her injuries, and therefore it was only logical she had sustained a loss of competitive advantage. She also argued in favour of this point, that her onus to prove a real and substantial possibility of a loss of competitive advantage is less than on a balance of probabilities. She also argued that the defendants failed to call evidence to contradict the plaintiff’s evidence regarding her ability to work due to her injuries.
Analysis
The Court of Appeal set out the well-established appellate standard of review of a jury verdict: a high degree of deference will be granted to a jury verdict where there is some evidence to support it, and a verdict will not be set aside even if the jury could have arrived at a different determination based on the evidence.[1] The jury agreed that the appellant sustained some injuries that were continuing to affect her, but disagreed she sustained a loss of competitive advantage as a result. The Court of Appeal found there was no inconsistency in that reasoning, and that the verdict was supported by evidence the jury was entitled to accept. It was open to the jury to accept the evidence of the appellant’s prior medical conditions and involvement in two subsequent motor vehicle collisions in which she sustained injuries. It was also open to the jury to reject her evidence about how the subject incident affected her teaching career.
With regard to the issue of the appellant’s evidence at trial being unchallenged, the Court of Appeal rejected this submission, noting that credibility was an issue at the trial and the jury was properly instructed on how to deal with credibility issues. The appellant was “thoroughly cross-examined” at trial, but did not call any medical evidence and the evidence from her employer did not support the claim that her work trajectory had been adversely affected.[2] It was the appellant’s onus to demonstrate a real and substantial possibility that she had suffered disadvantage in her employment.[3] The Court of Appeal took the position that the jury’s finding that the appellant had not suffered a loss of competitive advantage meant that the appellant had not met her burden of proof, which was open to the jury to find on the evidence, given the issues of credibility and causation.
Disposition
The appellant therefore failed to meet the high threshold required to set aside a jury verdict. This decision reinforces the Lazare test with respect to deference to jury verdicts in the civil context. It is a high threshold in that a jury verdict will not be set aside where there is some evidence to support the verdict, even if another conclusion was available on the evidence.
[1] Lazare v. Harvey, 2008 ONCA 171 at para. 29
[2] Ali v. Irfan, supra note 1 at para. 9
[3] Ibid and Lazare at para. 18