Full Decision
ONCA Panel: G.R. Strathy C.J.O., J.C. MacPherson J.A., and M. Tulloch J.A.
Heard: September 5, 2019
Judgment: September 20, 2019
CONTEXTUAL HISTORY
The Appellant, Mr. Purtill is the Defendant in this matter who drove his motor vehicle while impaired and struck the Plaintiff vehicle, causing the death of a young child and serious injuries to other family members. At trial, the Plaintiffs were wholly successful. In particular, the applicable Threshold was satisfied completely. The Defendant appeals the decision of the trial Judge with respect to damages, and the Threshold. At Trial, 2018 ONSC 3102, the Plaintiffs obtained Judgment as follows:
Mary Rodrigues
General Damages: $145,000
Past income loss: $70,000
Future loss of income: $238,500
FLA: $130,000
Michael Fleming
FLA – Mary: $6,008.33 (net/)
FLA – Mary: $130,000 (net/rounded)
Ethan & Max – each
General Damages: $27,000 (net rounded)
FLA – Alexander: $16,000 (net/rounded)
FLA – Mary: $11,000 (net/rounded)
BRIEF ANSWER
The Appeal was dismissed.
ANALYSIS
The Defendant raised five grounds of appeal, specifically.
First Ground of Appeal
First and foremost, that the trial Judge demonstrated bias with respect to O. Reg 461/96and that the determination of the Threshold was tainted. The Court of Appeal rejected the argument on the basis that no bias existed. At [4] the Court of Appeal concluded that ‘The Appellant failed to demonstrate any connection between the trial Judge’s comments and the alleged errors in the application of the legislation.’
Second Ground of Appeal
The Appellant submits that the trial Judge erred in permitting the Plaintiff’s Rule 53.03 Orthopedic expert to rely upon evidence from Stats-Canada concerning working life expectancy of patients with chronic pain. At [6] the Court of Appeal rejected the argument on the basis that:
‘the expert witness attached to his report a CD containing some of the information he relied on in coming to his opinion concerning the effect of the Plaintiff’s injury on her earning capacity. This was available to the Defence. The fact that the witness considered statistical information as one of many elements of the knowledge, information and experience grounding his opinion, did not render his evidence inadmissible. Nor did it preclude the trial Judge from referring to that evidence’.
Third Ground of Appeal
The Appellant argued that the trial Judge improperly considered the evidence of a psychologist with a specialty in treating children, who opined that the injuries to the children met the Threshold, as O. Reg461/96 requires evidence being given by a ‘physician’. The Court of Appeal concluded that the trial Judge qualified the expert therefore he was able to give evidence on the issues. Moreover, at [9] ‘the Appellant took no objection to the witness’s qualifications and the issue was not raised until closing arguments. The failure to object, when the witness was qualified, can reasonably be taken to be an acknowledgement that the witness was qualified to give the opinion tendered’.
At [10] the Court of Appeal noted cases where the requisite evidence of the psychologist was accepted by the court, and that the Appellants have provided no cases where the evidence must be given by a medical doctor.
At [11] the Court of Appeal finally noted that the Appellants own expert confirmed the evidence given by the Plaintiff’s psychologist, satisfying the requirements of the Threshold.
Fourth Ground of Appeal
The Appellants submits that the FLA damages exceeded the applicable range and were excessive. The Court of Appeal however found the submission to be unsupported by any reference to authority as to what the current range is or should be at [14]. When adjusted pursuant to Fiddler v. Chiavetti, 2010 ONCA 210, and the rates of inflation, the damages were not excessive.
Fifth Ground of Appeal
Lastly, the Appellants argue that the Judge’s costs award was disproportionate in principle. The costs were awarded at $383,922.42 which included $90,062.45 in disbursements and $180,066.60 of substantial indemnity costs. The Court of Appeal rejected this argument. The Plaintiff’s recovered over $1 Million before statutory deductions, the trial took place ten years post-accident and lasted nine days. The trial Judge appropriately considered Rule 57.01 and that the Plaintiff obtained an award greater than their last offer to settle.
CONCLUDING THOUGHTS
This decision marks a definitive precedent that may be used to aid counsel in dealing with various issues raised on appeal from trial.
