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How is “Pain and Suffering” Determined in Ontario?


Unlike some other Canadian provinces, in Ontario, jury trials are still regularly used in civil cases such as personal injury lawsuits. Are juries really fair to accident victims? In a 2016 case, Mandel v. Fakhim, an Ontario Superior Court judge expressed the opinion that “jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers.” The judge, Justice Frederick L. Myers, was reacting to a jury verdict returning a damage award of just $3,000 in a lawsuit where an accident victim had asked for over $1 million.

The Divisional Court recently reviewed Justice Myers’ handling of the Mandel case and, while it disagreed with his views of the jury system and certain aspects of how he managed the litigation, it nevertheless upheld his decisions and dismissed the plaintiff’s appeal of the low damage award.

Here is some background on the case. The plaintiff and the defendant were involved in a car accident in 2009. The actual contact between the vehicles was “slight,” according to Justice Myers. The plaintiff sued for damages, alleging he sustained “very substantial physical and emotional injuries” that prevented him from returning to work following the accident. Overall, the plaintiff demanded approximately $1.2 million in general and special damages.

The case was tried before a jury over a period of 12 days. “The usual experts for both sides gave the usual testimony,” Justice Myers noted. “And the jury gave the usual verdict.”

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The jury decided to award just $3,000 in non-pecuniary damages, i.e. compensation for the plaintiff’s pain and suffering. But the jury awarded zero damages for the plaintiff’s other claimed damages, including the loss of past and future income, medical care, and other costs. As Justice Myers explained, the plaintiff would not even receive the $3,000 for pain and suffering, as it was subject to Ontario insurance law’s mandatory $30,000 deductible for personal injury awards.

Judge’s Failure to Make “Threshold” Ruling Not Enough to Order New Trial

On appeal to the Divisional Court, the plaintiff raised four issues with the jury’s verdict and Justice Myers’ own conduct during the trial. First, the plaintiff said the judge failed to properly instruct the jury on the legal issue of “temporal causation.” Second, the plaintiff said this improper charge deprived him of a fair trial. Third, the plaintiff maintained the $3,000 award was “so inordinately low that appellate intervention is warranted.” Finally, the plaintiff noted that Justice Myers failed to determine whether or not the plaintiff sustained a “permanent and serious” injury as required by Ontario law.

The Divisional Court agreed with the plaintiff on that last issue but dismissed his other three arguments. Here is a brief rundown of the Divisional Court’s reasoning:

  • Temporal causation. In personal injury law, the plaintiff must prove a direct connection between the accident, the defendant’s negligence, and the plaintiff’s injuries. The mere fact that the accident and the injuries occurred close together is not necessarily sufficient. After the trial, Justice Myers instructed the jury on the law in this area. The plaintiff objected to the judge’s use of “non-material examples” to illustrate temporal causation. For instance, Justice Myers said, “We have all heard about cases where children have become very ill shortly after receiving vaccinations, yet the science is clear that the vaccines often do not cause illness.” The Divisional Court said such examples are permissible to “make certain legal issues more readily understandable by the lay jury.”
  • Lack of impartiality. The plaintiff said that other aspects of Justice Myers’ jury charge indicated bias on his part–that he effectively became a “participant in the litigation” rather than an impartial arbiter of the law. The Divisional Court disagreed with this characterization, noting that when taken in its full context, the jury charge made it clear it was solely up to the jury to determine the “truthfulness and reliability of the witnesses and the weight to be given to each of the testimony.”
  • The amount of the damage award. This was effectively the core of the plaintiff’s appeal: He argued the $3,000 award was simply too low given the “extent of his injuries.” Once again, the Divisional Court did not see it that way. Noting that a jury verdict in Ontario is entitled to “deference” by an appellate court, the Divisional Court said there was “ample evidence” to support the jury’s decision in this case. Indeed, two of the plaintiff’s own treating physicians gave evidence at trial that suggested the plaintiff’s injuries were not as extensive as he claimed. The Divisional Court also pointed out there was “evidence to suggest that the [plaintiff] may have not been forthcoming in his testimony regarding how the accident occurred and may be exaggerating his pain.”
  • The judge’s failure to make a threshold determination. Under Ontario law, a judge “shall” make a determination of whether or not a plaintiff’s case has met the serious-injury threshold for claiming an award of non-pecuniary damages. This threshold determination can be made if requested by a party. Here, Justice Myers declined to make a threshold determination at all, explaining that would put him in a position of “direct conflict with the jury’s verdict.” But the Divisional Court said that did not matter–the law “requires the judge to decide the threshold issue.”

Despite agreeing with the plaintiff on the threshold issue, the Divisional Court declined to order a new trial, as it was “not satisfied that a substantial wrong, or a miscarriage of justice has occurred.” The Court did, however, take exception to Justice Myers’ views, mentioned above, that cases like this illustrate how the jury system is unfair to plaintiffs seeking damages for pain and suffering. The Divisional Court said the trial judge overstepped his bounds, and that it “is a matter for the Legislature” to decide whether or not to abolish jury trials.

Contact Preszler Injury Lawyers if You Need Legal Advice Following a Car Accident

Regardless of whether civil lawsuits are tried before juries or judges sitting alone, it is critical to work with an Ontario personal injury lawyer. If you have been injured in a car accident and require legal advice or assistance, contact Preszler Injury Lawyers today to schedule a free, no-obligation consultation with a member of our legal team.

 
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