The Court of Appeal has upheld a jury’s award of $225,000 in general damages for pain and suffering in a case involving a plaintiff who suffered fractures to the tibia and talus bone as a result of a motor vehicle accident. The plaintiff was 18 at the time of the accident. She underwent a surgery post-accident and it was anticipated that further surgery might be required due to her pain and restriction of movement, which was attributable to the development of arthritis in her upper ankle. Her accident-related injuries had caused her to change her post-secondary education and career plans and also interfered with her daily activities.

The trial judge restricted the scope of testimony of the defendants’ expert as the defendant failed to serve the plaintifs with a signed Rule 53 report until part way through the trial. Specifically, the expert was not allowed to comment on any developments that had occurred since the preparation of his report, including the testimony of the respondent’s expert at trial.

The defendants appealed. The Court of Appeal found that the appellants were the creators of their own misfortune, having delayed in serving a proper Rule 53 report and having failed to have their expert provide a response despite having the supplementary reports well in advance of trial. The Court ruled that there was no error in the trial judge’s ruling.

The appellants also appealed the trial judge’s decision to not grant a mistrial in light of opposing counsel’s “inappropriate and inflammatory” closing to the jury. The trial judge decided that any damage could be dealt with by providing the jury with correcting instructions. The Court of Appeal set out that a mistrial is a remedy of last resort such that the trial judge’s decision attracted deference. The Court criticized counsel’s conduct, noting that it risked the integrity of the trial process and that a mistrial would have attracted cost consequences, which would have to be borne by counsel himself. However, the Court ultimately found there was no miscarriage of justice requiring the need to order a new trial.

This case stresses the importance of preparation and putting your best foot forward at trial in light of the deference granted by appellate courts. Also, the Court of Appeal will not have any sympathy for a ground of appeal that has its nascence in the mischief of the appellant.

See Dunk v. Kremer, 2018 ONCA 274 (CanLII)

Shalini Thomas

Shalini defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, as well as accident benefits litigation and arbitration and priority and loss transfer disputes.

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