McKnight v. Ontario (Transportation), 2019 ONCA 28

Full Decision

Material Facts:

In this appeal of a personal injury action, the respondent plaintiff was awarded substantial damages as a result of a relatively minor motor vehicle accident that resulted in chronic pain, anxiety and depression. The appellants argue that the damages awarded by the jury were excessive, and that a new trial should be ordered.

With respect to damages, the statement of claim sought only $250,000 special damages and $750,000 general damages. The jury awarded $600,000 for non-pecuniary general damages; $840,000 for loss of income; $860,000 for future health care expenses and special damages within the limit claimed in the statement of claim. The trial judge then reduced the non-pecuniary general damages down to the cap, as the jury had not been instructed on this.

The trial judge then granted the respondent’s motion to amend the statement of claim to increase the claim for damages in the amount of $2,079,153, in order to allow for judgment in the amount awarded by the jury after the cap reduction.  


  1. Did the trial judge err in not declaring a mistrial?
  2. Did the trial judge err in allowing the statement of claim to be amended?


A statement of claim may be amended to increase the relief sought after a jury awards a greater amount than what was originally pled.  


The first ground of appeal was for mistrial, on the basis that the jury’s high damages award was overly harsh as a means to punish the defendants’ lawyer for his conduct at trial, after the plaintiff had complained of mistreatment by the defendant lawyer during cross-examination and examination for discovery. The appellants submitted that this inflamed the jury into awarding a high damages award, and should justify a mistrial.

The appellants argued that many of the respondent-plaintiff’s complaints were the product of pre-accident psychological issues, as well as general stress from the litigation, and were not caused by the defendant’s lawyer’s conduct. During trial, the plaintiff’s treating psychiatrist was examined and reported that the plaintiff felt abused and mistreated by the defendants’ counsel, and opined that the counsel’s conduct had had a negative impact on the plaintiff’s psychological condition.

The defendants asked the trial judge to declare a mistrial. The judge refused, declaring that while the evidence should not have been introduced and was prejudicial to the defendants, any prejudice could be cured by a mid-trial instruction to the jury.

On appeal, the Court noted that a mistrial is the remedy of last resort, so the trial judge’s discretion to instruct the jury rather than declare a mistrial attracted deference. The Court found that the jury was appropriately cautioned that litigation is inherently stressful and the relationships between parties and opposing counsel is by nature adversarial, and that damages should be assessed without sympathy or prejudice as they are meant to be compensatory, and not a form of retribution against the defendants. The Court noted that the jury’s pecuniary damages award was materially less than the damages requested by the plaintiff, and so the jury could not be said to be inflamed in awarding high non-pecuniary damages.

The second ground of appeal was with regards to the amendment to the statement of claim, allowing for judgment in an amount greater than what was pled. The Court rejected the appellants’ argument that they prepared for and conducted the trial based on the amount pled in the claim. The Court held that the trial judge had correctly concluded that the appellants were aware of the nature and quality of the respondent’s claim, and as such suffered no prejudice as the amendment did not alter the case to be met, and the trial would not have been conducted differently nor would different evidence have been led, had the amendment had been sought earlier. 


Both grounds of appeal were dismissed. The respondent was awarded $30,000 in costs.

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