Mandel v. Fakhim[1] involves an appeal from a trial decision, heard before the Divisional Court. The action related to injuries resulting from a motor vehicle collision, which occurred on July 4, 2009. The jury verdict at trial was delivered on November 18, 2016, where the jury awarded $3,000 in damages to the plaintiff, for pain and suffering, and nothing for past or future lost income, future care expenses or housekeeping services.
The plaintiff appealed, acting in person, but with the benefit of an appeal record and factum filed by his trial counsel. The grounds of appeal advanced were as follows:
- The trial judge erred in failing to properly instruct the jury regarding the law of temporal causation;
- The trial judge’s jury charge deprived the appellant of a fair trial;
- The $3,000 damage award is so inordinately low that appellate intervention is warranted; and
- The trial judge erred in failing to determine the issue of “threshold” impairment[2].
Before analyzing the grounds of appeal, the court first reviewed the appropriate standard of review on an appeal, noting:
- On appeal, from a judge’s order, the standard of review for questions of law, is correctness;
- If the order being appealed involves a question of fact, then the standard is palpable and overriding error;
- For an appeal involving questions of mixed fact and law, the court noted there is a spectrum:
- if there is an “extricable legal principle, the standard of review is correctness”;
- But if the issue on appeal relates to the “application of the correct legal principles to the evidence, the standard is palpable and overriding error.”[3]
The Court further noted that:
- An appellate court will not order a new trial unless a “substantial wrong or miscarriage of justice has occurred”[4]; and
- As a matter of principle, the appellate court “will only interfere with a jury’s award for damages where it is so grossly out of proportion to the negligence as to shock the court’s conscience and sense of justice.”[5]
1. The trial judge erred in failing to properly instruct the jury regarding the law of temporal causation
The court rejected the appellant’s first ground of appeal, finding that the judge gave the jury “non-material” examples of temporal causation that could be easily understood by lay persons.
2. The trial judge’s jury charge deprived the appellant of a fair trial
The appellant stressed the importance of an “objective jury charge,” and claimed that the trial judge had “gone too far.” The appellate court did note that where a trial judge may express disbelief or skepticism about a party’s position, or appears to adopt an adversarial approach, this can give rise to a reasonable apprehension of bias and destroy the required impartiality.[6] However, with respect to this case, the court found the Trial Judge did not cross any such boundary, and that there was no basis for this ground of appeal.[7]
3. The $3,000 damage award is so inordinately low that appellate intervention is warranted
This ground of appeal was also rejected, with the court noting that the jury’s award was “not so grossly out of proportion as to shock the court’s conscience and sense of justice.”[8] In reaching this determination, the court noted there was conflicting evidence at trial about whether the appellant in fact suffered chronic physical pain as a result of the collision, and there was also evidence before the jury to suggest that the appellant may have been exaggerating his pain.[9] The court noted in rejecting this ground of appeal that “deference is owed to the jury’s decision,”[10] and further pointed out “there was ample evidence to support the jury’s award.”[11]
4. The trial judge erred in failing to determine the issue of “threshold” impairment
The starting point of this analysis is section 267.5(15) of the Insurance Act, which provides that in the absence of a motion before trial, the trial judge “shall” determine whether a plaintiff is entitled to claim non-pecuniary damages arising from the motor vehicle collision.[12] The trial judge had declined to make a determination on the threshold issue, noting that the jury only awarded $3,000 to the plaintiff, and the applicable deductible was $30,000, in which event the appellant would not receive any money as a result of the Jury`s verdict regardless, and therefore deciding wither the injuries met the threshold would have no practical effect between the parties.[13]
Conclusion
The court determined that the only successful ground of appeal in this matter was on the fourth ground, relating to the threshold issue; an error of law occurred at trial, and the court should have made a determination on the threshold issue.[14] However, the court also stated, “we are not satisfied that a substantial wrong, or a miscarriage of justice has occurred.” The court thus declined to direct a new trial, and refused to substitute an increased verdict for the plaintiff.[15] The court also declined to make a cost award, in relation to this appeal.[16]
[1] Mandel v. Fakhim, 2018 ONSC 7580.
[2] Ibid, at para 5
[3] Ibid, at para 6.
[4] Ibid, at para 7.
[5] Ibid, at para 8.
[6] Ibid, at para 17.
[7] Ibid, at para 22.
[8] Ibid, at para 27.
[9] Ibid, at para 24.
[10] Ibid, at para 26.
[11] Ibid, at para 25.
[12] Ibid, at para 28.
[13] Ibid, at para 31.
[14] Ibid, at para 36.
[15] Ibid, at para 36.
[16] Ibid, at para 37.
