Graul v. Kansal, 2022 ONSC 1958

Full Decision

In the recent decision of Graul v Kansal, 2022 ONSC 1958J. Lemon awarded the plaintiff nearly $2.4million as a result of damages sustained following a motor vehicle accident. Of particular interest was his remarks on the concept that an expert witness should assist the court rather than the party paying them, which both sides of the aisle tend to forget from time to time.

The Accident

The plaintiff, in this case, Mr. Jon Graul, was a 57-year-old married man who had nearly 20 years of experience as an engineer with the City of Guelph. Before the accident, Mr. Graul was in good health, partaking in all sorts of physical activities and sports.

On December 18, 2017, Mr. Graul was involved in a violent head-on collision when the vehicle driven by one of the defendants swerved suddenly in his lane. Mr. Graul was subsequently transported to the hospital by ambulance. He was treated for his injuries and later discharged on the same day.

Aviva Insurance, who represented the defendants in this case, did not contest the liability.

Following this accident, the plaintiff alleged that he suffered a mild traumatic brain injury (“TBI”) and other symptoms related to this injury, such as memory and focus impairment, hearing problems, and vision problems. He also had issues with chronic pain related to his neck and back, which were still ongoing at the time of the trial.

Even with multiple treatments, these injuries have made it impossible for him to return to his previous employment and engage in the active lifestyle he had before the accident.

In describing the plaintiff’s injuries, the defendants took a rather rigid stance, arguing that Mr. Graul’s difficulties were exaggerated. Moreover, they pled that to the extent he had any injury, his treatment choice had exacerbated them. Their position was that with proper treatment and some accommodation, the plaintiff could return to work. 


In a lengthy judgement dated April 8, 2022, J. Lemon sided with the plaintiff agreeing that he suffered a brain injury that profoundly affected his daily life. Based on the evidence before him, he accepted the position that Mr. Graul was not able to return to work and would have retired at 70 years old.

The defendants retained Dr. Mitchell, an expert in cognitive neurology, and Dr. Freedman, a specialist in neuropsychology, to address the diagnosis and prognosis of the plaintiff’s brain injury. According to J. Lemon, both had a bearing impact on his decision.

As part of her examination, Dr. Mitchell noted that a TBI should resolve within three months. Those who persist longer are most likely the result of other causes. Nonetheless, during cross-examination, she acknowledged that 5 to 20% of mild TBI patients continue to experience subjective symptoms after three months.

Further, she stated she would not be concerned with a patient with a “vacant stare”, nor would it constitute a “red flag”. It was, however, pointed out by the plaintiff’s counsel that she had stated the exact opposite during a segment that aired on CBC.

When confronted with her contradiction, Dr. Mitchell laughed in court. J. Lemon did not seem too pleased with this, stating in paragraph 445:

I do not expect an expert to laugh when caught in a significant contradiction in her evidence as Dr. Mitchell did. That demonstrates a lack of awareness of the significance of the expert witness’s role.

With respect to Dr. Freedman, he acknowledged that the plaintiff had significant cognitive and vision problems. However, he suggested that since the plaintiff still remembered the accident, this would justify the conclusion that he did not sustain a TBI. According to him, the absence of amnesia is a factor that can’t be overlooked regarding TBI. He later contradicted himself during cross-examination as well as on several other occasions in his testimony regarding different topics. 

Briefly, their evidence pushed J. Lemon to address them directly in his decision as he wrote the following in paragraph 426:

Trial judges will always need expert evidence in some areas. Those exceptional individuals who assist the courts need to be paid. But they also need to understand their role is to assist the court, not the party who pays them. I encourage Dr. Freedman and Dr. Mitchell to focus their exceptional knowledge and experience on the patients that need them and to forgo this well-paid role. If they intend to carry on this line of work, I recommend that they familiarize themselves with the principles of expert evidence set out in R. v. France, 2017 ONSC 2040, 36 C.R (7th) 293.  Where their evidence conflicts with other expert evidence, I reject their evidence.

It is evident that their testimony adversely affected the defendants’ chances of success in this trial.

Key Takeaway

This decision serves as an invaluable reminder that experts retained by both plaintiff and defendant counsel should be aware of the underlying principle that the experts are expected to give evidence in a way that is objectively helpful to the court and members of the jury, and not influenced by which side that retains their services.

A noteworthy aspect of this decision is that J. Lemon heard the case alone, without a jury, as opposed to most motor vehicle accident cases. In a jury trial, there is no in-depth analysis of the credibility of the experts provided as part of the Judgment, because the jurors do not provide written reasons as to their views of the numerous experts presenting evidence.

Written by

Vincent is an associate lawyer at Tierney Stauffer’s Litigation Group. He provides top-quality legal services to clients in both official languages. He wants to develop his practice in Personal Injury and Employment Law.

Vincent is a graduate of the French Common Law Program at the University of Ottawa and holds a Bachelor of Science in Biochemistry from the University of Moncton.

In his spare time, Vincent enjoys playing hockey and golf.