[1]         The appellant, Yolanda Girao, was injured in a car accident. The respondent, Lynn Cunningham, was at fault. The appellant claimed that her injuries caused her to suffer pain in her back and neck that eventually became chronic, and other symptoms including major depression. She claimed $500,000 in general damages and $500,000 in special damages.

[2]         The jury found the respondent to be fully liable for the accident, and awarded the appellant $45,000 in general damages and $30,000 in special damages for past loss of income.

[3]         Ms. Cunningham was represented by counsel appointed by her insurer. In these reasons I will occasionally refer to the respondent as the “defence” for convenience.

[4]         After the case had gone to the jury, the defence moved to dismiss the action on the basis that the appellant had not met the statutory threshold to qualify for general damages – having sustained a serious and permanent impairment of important physical, mental, or psychological function under s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8. The trial judge allowed the motion and dismissed the appellant’s claim for general damages. He also reduced her damages award for loss of income to $0 to account for statutory accident benefits received by the appellant from her insurer. The trial judge then awarded partial indemnity costs against the appellant in the amount of $205,542.38 plus $106,302.96 in disbursements, for a total of $311,845.34.

[5]         The appellant was self-represented at trial, as she was on the appeal. She used a Spanish interpreter throughout.

[6]         The appellant set out a number of grounds of appeal on the merits in her notice of appeal and her supplementary notice of appeal, tangentially referencing the threshold motion. In her factum, she also appealed the threshold decision. The respondent complained about the irregular form of the appeals but did not claim prejudice. Making due allowance for the appellant’s status as self-represented, I would deem her appeal to have been properly brought on all these grounds.

[7]         I would allow the appeal and order a new trial. This is one of those rare civil cases in which a new trial should be ordered because “the interests of justice plainly require that to be done,” in the words of this court in Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), at para. 68. The appellant has shown that a “substantial wrong or miscarriage of justice has occurred”: s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and see Vokes Estate v. Palmer, 2012 ONCA 510, 294 O.A.C. 342, at para. 7.

[8]         The appellant immigrated to Canada from Peru in 1999. She had been employed by a commercial bank in Peru and hoped to do the same work in Canada. However, she was unable to overcome her difficulty with the English language. She undertook more physical work and at the date of the accident was employed as a cleaner.

[9]         The appellant experienced a traumatic event at the age of 18 when she was sexually assaulted. She experienced another traumatic event at Sheridan College in Toronto when she was belittled by an instructor. Then came the accident on June 19, 2002.

[10]      The appellant pursued statutory accident benefits under the Insurance Act against her insurer, Allstate, for the injuries she suffered in the accident. Eventually, the appellant and Allstate settled the statutory accident benefits claim, on February 28, 2006, for a lump sum payment of $82,300 in addition to all amounts which had been received by the date of the settlement. The total settlement included $890.64 for transportation, $6,252 for housekeeping, $91,246.24 for income replacement, $28,360.43 for medical expenses, and $32,667.32 for medical rehab. The appellant’s accident benefits claim was supported by several expert reports, including a series of reports summarized and gathered into a single report by Dr. Harold Becker.

[11]      Allstate’s considerable involvement in the action was largely driven by the groundless claim in Ms. Cunningham’s statement of defence, rejected by the jury, that the accident had been caused by an unidentified motorist. There was no evidence to support this claim. Ms. Cunningham refused to accept even 1 percent fault for the accident. The allegation in the statement of defence obliged the appellant to sue her own insurer Allstate in order to recover under the unidentified motorist endorsement in the event that the jury accepted the unidentified motorist claim. Allstate’s participation as a party added significantly to the complexity and the costs of the trial for no good purpose. While in his costs decision the trial judge was not unduly critical of the defence for drawing in Allstate by asserting the claim against an unidentified motorist, his negative view is shown in that he made a Sanderson Order in favour of Allstate for its costs of $98,813.06 against the respondent.

[12]      The appellant asserted that she was happy and productive before the accident. She was working as a cleaner. While she acknowledged the traumatic events in her past, she asserted that she had recovered from both before the accident.

[13]      After the accident the appellant claimed that she developed chronic pain and other symptoms, including major depression that the appellant asserts was caused by the accident. These injuries were acknowledged by the statutory accident benefits insurer and resulted in the statutory accident benefits settlement. At the date of the trial the appellant was on disability, receiving Ontario Disability Support Program (ODSP) payments.

[14]      In this action the appellant claimed general damages for pain and suffering and for economic losses that were not fully covered by statutory accident benefits.

[15]      The defence’s position was that this was a minor motor vehicle accident not causally related to Ms. Girao’s physical, emotional, psychiatric, or mental problems. The statutory accident benefit settlement provided Ms. Girao with more money, over four years, than she would have earned as a cleaner, and that accounted for her failure to get new employment and for her approach to this action. Her real motive is not compensation for actual injuries caused by the accident but secondary gain; she is a malingerer.

[16]      The nub of the defence position was expressed in the defence’s statement, which the trial judge included in his charge to the jury:

[17]      The defence used a three-point strategy to persuade the jury to accept the defence theory. First, the defence asserted and relied on the truth of psychiatrist Dr. Sanchez’s pre-accident letter of opinion dated October 12, 2001 concerning the appellant’s pre-accident state; the defence did not call Dr. Sanchez as a witness. Second, the defence raised and promoted the secondary gain theory using the statutory accident benefits settlement. Third, the defence worked to exclude from the jury and from the trial record the substantive expert evidence that justified the settlement, particularly evidence that gave a different portrait of the psychological effects the appellant claimed to have suffered from the accident than the defence’s portrayal based on the Sanchez report.

[18]      The statutory accident benefits settlement was portrayed by the defence as an undeserved windfall. The appellant was thrust into the position of accounting for the settlement, said to be undeserved, but was prevented from putting before the jury the evidence that justified the settlement.

[19]      I will confine my reasons to four elements of substantial trial unfairness:

[20]      I will then consider the appellant’s challenge of the trial judge’s refusal to strike the jury, and conclude with the threshold decision.

[21]      On the eve of trial, the defence dropped a massive and selectively redacted 16 volume “Joint Trial Brief” on the appellant, who has substantial difficulty with the English language, something of which the defence was well aware. The content of the Brief can be summarized as falling into several categories: medical records, notes, and reports; employment, educational, and tax records; and documents relating to the collision and insurance claims. The Brief became the basis of the trial record in an unfair way that was inconsistent with the trial practice directions of this court.

[22]      It is clear law that: “The goal of a trial judge in supervising the assembly of a trial record is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before [the trial judge] at any moment in the course of the trial”: 1162740 Ontario Ltd. v. Pingue, 2017 ONCA 52, 135 O.R. (3d) 792, at para. 14. This court has given instructions on the preparation and use of document briefs, for example, in Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at paras. 127-128, and in Pingue, at paras. 39-40.

[23]      Any document introduced by any party that does not become a numbered exhibit should become a lettered exhibit. The important distinction between numbered exhibits and lettered exhibits is that, subject to the trial judge’s discretion, lettered exhibits do not go in with the jury during its deliberations, but numbered exhibits do: Pingue, at para. 17.

[24]      As a more general observation, it is customary for experts to prepare reports, which counsel provides to the parties and to the judge. The admissible evidence of the expert is normally understood to be the oral evidence, particularly in jury trials. However, the best practice in jury trials is to make expert reports lettered exhibits in order to preserve the integrity of the trial record for the purpose of an appeal: Pingue, at para. 21.

[25]      The problem in this case with the trial record went further. It is quite usual in civil actions for counsel to prepare an agreed trial document brief containing documents that are admitted as authentic and admissible. See J. Kenneth McEwan, Sopinka on the Trial of an Action, 3rd ed. (Toronto: LexisNexis, 2016) at pp. 66-72. In Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165, 331 O.A.C. 48, at para. 54, Brown J.A. emphasized the necessity of ensuring that the record reflects the document’s intended use:

[26]      Counsel typically agree on a list of documents and one party attends to the brief's preparation. As observed in Iannarella, at para. 128: “It is regrettably not unusual, however, for counsel to differ on the precise basis on which a document in the brief is being tendered or whether it was to have been included, as the implications materialize in the course of the trial.” Pingue stated, at para. 40:

[27]      This discipline of judicial oversight applies even more forcefully where one party is self-represented and the opposing lawyer prepares the brief, and in a jury trial where the brief goes into the jury room.

[28]      The Joint Document Brief was prepared by the defence without input from the appellant, despite the misleading label: “Joint”. There is no good explanation for its late delivery, which put the appellant at a disadvantage leaving her to run from behind through the course of the trial.

[29]      The volumes in the Joint Document Brief were made numbered exhibits. The trial judge’s approach was to simply accept all the volumes. He said, when he marked vol. 16 as exhibit one:

[30]      Dr. Becker’s report supporting the appellant’s account of her injury was initially made a numbered exhibit. It was later struck, but no copy was then filed as a lettered exhibit. This failure obliged the appellant to add it as well as some other reports to the appeal book in order to ensure that they were available to this court on the appeal.

[31]      Some of the medical reports favouring the appellant’s claim in the statutory accident benefits file were included in the Joint Document Brief but they were redacted by the defence in order to excise any opinion evidence favourable to Ms. Girao.

[32]      I would not consider the flaws in the management of the trial record to be fatal to trial fairness in this case, but they unfairly enabled the defence’s strategy of keeping expert evidence favourable to the appellant from the jury and from the trial record.

[33]      In my view, counsel and the court should have addressed the following questions, which arise in every case, in considering how the documents in the joint book of documents are to be treated for trial purposes:

[34]      It would be preferable if a written agreement between counsel addressing these matters were attached to the book of documents in all civil cases. In addition, it would be preferable if the trial judge and counsel went through the agreement line by line on the record to ensure that there are no misunderstandings.

[35]      In my view, none of these issues or questions are novel. The answers to these questions are not implicit in the filing of a joint document book and must be expressly addressed on the record or by written agreement. The problem frequently comes because the parties have not turned their minds to the issues in sufficient detail before the document book is tendered as an exhibit. This must change as a matter of ordinary civil trial practice. Had the trial judge taken himself, counsel and Ms. Girao through this list of questions relating to the document book, some of the problems identified in these reasons could have been avoided.

[36]      Two issues concerning the use of expert evidence arose in this trial that are especially concerning. The first relates to the trial judge’s refusal to allow Dr. Becker to testify as to his opinion as to Ms. Girao’s injuries. He was the director of the clinic whose team members examined Ms. Girao in connection with her statutory accident benefits claim. Dr. Becker authored the covering report in which he summarized the reports of the team members, including the psychiatrist Dr. Rosenblat.

[37]      The second relates to the use of Dr. Sanchez’s opinion. This was adduced by the defence to substantiate its theory that, before the accident, the appellant suffered from the same mental problems that she manifested after the accident.

[38]      The admissibility of these opinions engages two intertwined sets of governing principles, the first related to expert evidence, and the second to the use of ss. 35 and 52 of the Evidence Act, R.S.O. 1990, c. E.23 to permit the introduction into evidence of medical reports without the need to call the doctors who prepared them.

[39]      The threshold requirement for the admission of expert evidence has four elements: the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified, assuming there is no novel science issue. Then the trial judge must execute the gatekeeper function. See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19. See also R. v. Abbey, 2017 ONCA 640, 140 O.R (3d) 40, per Laskin J.A., at paras. 47-48. These four threshold elements implicitly give rise to another element: Can a person who has expertise, but who is not qualified as an expert witness under r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, still provide opinion evidence?

[40]      The short answer is that such a person can give opinion evidence as this court affirmed in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, leave to appeal refused, [2015] S.C.C.A. No. 198. It was a case about the quantum of damages for injuries suffered in a car accident. Simmons J.A. identified two types of witnesses with special expertise who can provide opinion evidence but who are not expert witnesses as described in r. 4.1.01 and Form 53: The first are “participant experts,” who form opinions based on their participation in the underlying events, such as treating physicians. The second are “non-party experts,” who are retained by a non-party to the litigation and who form opinions based on personal observations or examinations that relate to the subject matter of the case, but for another purpose. One example would be a medical examination of a claimant for statutory accident benefit insurance purposes: see Westerhof, at para. 6. (Westerhof implicitly overrules the trial decision to the contrary reached in Beasley v. Barrand, 2010 ONSC 2095, 101 O.R. (3d) 452.)

[41]      Simmons J.A. held, at para. 60, that both participant experts and non-party experts may give opinion evidence without complying with rule 53.03:

[42]      Dr. Sanchez’s letter was adduced by the defence in order to substantiate its theory that the appellant was suffering before the accident from the same mental problems that she manifested after the accident. The defence wanted to rely on the words of Dr. Sanchez’s opinion as being true. This would be to use Dr. Sanchez’s statement for the truth of its content, making it hearsay evidence. Hearsay evidence “is presumptively inadmissible because – in the absence of the opportunity to cross-examine the declarant at the time the statement is made – it is often difficult for the trier of fact to assess its truth”: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 1.

[43]      There are certain exceptions to the hearsay rule under which a statement may be adduced for its truth value. Two such exceptions, hedged about with additional protections, are found in ss. 35 and 52 of the Evidence Act.

[44]      Section 35 of the Evidence Act relates to business records. If a record is made “in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act,” then the record is admissible as evidence of such act: s. 35(2).

[45]      Section 52 of the Evidence Act relates to medical reports and is more expansive than s. 35. It permits the court to allow the report to be admitted into evidence without the need to call the practitioner. The opinion can then be accepted for the truth of its contents. However, the trial judge must, at the request of a party, oblige the medical practitioner to testify in order to permit cross-examination. See Kapulica v. Dumancic, 1968 CanLII 419 (ON CA), [1968] 2 O.R. 438 (C.A.); Reimer v. Thivierge, 1999 CanLII 9303 (ON CA), [1999] 46 O.R. (3d) 309, at paras. 12-15; see also Doran v. Melhado, 2015 ONSC 2845. See generally Michelle Fuerst, Mary Anne Sanderson, and Donald Ferguson, Ontario Courtroom Procedure, 4th ed. (Toronto: Lexis Nexis Canada, 2016), c. 41.

[46]      The respective roles of the two sections have been distinguished in several cases. Section 35 is not a proper basis on which to admit opinion evidence. In Westerhof, Simmons J.A. said, at para. 103:

[47]      In Robb Estate v. Canadian Red Cross Society (2001), 2001 CanLII 24138 (ON CA), 152 O.A.C. 60 (Ont. C.A.), the court noted, at para. 152: “Section 52 differs from s. 35 in that it permits the admission of opinions and diagnoses contained in medical reports signed and prepared by qualified practitioners… Section 52 was designed as an alternative to oral testimony.”

[48]      In McGregor v. Crossland, 1994 CanLII 388 (ON CA), [1994] O.J. No. 310 (Ont. C.A.) the court noted, at para. 3:

[49]      Ms. Girao served a notice of intent under ss. 35 and 52 of the Evidence Act and listed many of her medical reports including the reports prepared by Dr. Becker and Dr. Rosenblat. She did not include the report prepared by Dr. Sanchez.

[50]      On September 16, 2011, defence counsel served a request to admit on Ms.  Girao under r. 51 of the Rules of Civil Procedure requesting her to admit to “[t]he facts set out in the attached report of Dr. A. Sanchez dated October 12, 2001”. Ms. Girao responded on September 20, 2011 stating that she “denies the facts set out in the attach [sic] report of Dr. Sanchez which are not accurate.” Defence counsel then served a notice under s. 35 of the Evidence Act, dated September 26, 2011, which listed several medical reports and which gave notice that the defence could rely on the evidence of various healthcare providers, including Dr. Sanchez, by either calling them to testify or by filing their reports.

[51]      Allstate later served a notice of intention under both ss. 35 and 52 of the Evidence Act listing a number of medical records including Dr. Sanchez’s report and his clinical notes and records.

[52]      The expert evidence most favourable to the appellant was contained in the covering report authored by the director of the clinic, Dr. Becker, in which he summarized the reports of the team members who examined Ms. Girao in connection with her statutory accident benefits claim. The most important was a psychiatry report authored by Dr. Rosenblat.

[53]      However, the trial judge only permitted Dr. Becker to testify about the system for determining a person’s entitlement to statutory accident benefits for catastrophic impairment, but not about the substance of his report. In his jury charge, the trial judge effectively expunged Dr. Becker’s limited evidence, telling the jury that it was not in issue.

[54]      As I noted earlier, the defence worked to exclude the substantive expert evidence that justified the statutory accident benefits settlement from the jury and from the trial record. Consider the positive view of Ms. Girao’s claim expressed by Dr. Rosenblat, whose opinion was incorporated in Dr. Becker’s accident benefits report:

[55]      Dr. Rosenblat concluded: “Clearly this motor vehicle accident has played a substantial role in her current psychiatric functioning.”

[56]      The defence did not want these opinions favourable to Ms. Girao to reach the jury. Dr. Becker’s report was initially admitted as exhibit 61 when it was put to Dr. Finkle, the defence psychiatrist, in cross-examination, but it was later “struck as an exhibit,” according to a note in the exhibits list. The basis on which the trial judge struck the exhibit has not been put before this court, nor was the report included in the trial record as a lettered exhibit. Ms. Girao included a copy in her Appeal Book.

[57]      I can see no reasonable legal basis on which the evidence of Dr. Becker could be excluded in light of the governing principles regarding s. 52 of the Evidence Act noted earlier. It is not unusual in an assessment of a claimant for statutory accident benefits for there to be a summative report attaching the individual reports of multiple specialized assessors who prepared reports within their field of expertise. The usual approach would have the author of the summative report, in this case Dr. Becker, called as a witness by the appellant to provide his opinion. That is what the appellant tried to do in this case. The defence would have cross-examined Dr. Becker and, if necessary and if so inclined, the other assessors like Dr. Rosenblat, whose opinions underpinned Dr. Becker’s summative opinion.  

[58]      In my view it was an error not to allow Dr. Becker to testify about the substance of his report and it was also an error to exclude his report from the record, given that Ms. Girao had served a notice under s. 52 of the Evidence Act. Dr. Becker should have been allowed to testify about what reliance he placed on Dr. Rosenblat (and others), subject to any demand by the defence to require Dr. Rosenblat to be available for cross-examination.  

[59]      There is an actuating judicial perspective within which these principles operate, well-expressed by Barr J.: “[I]t should be remembered that any time a court excludes relevant evidence the Court's ability to reach a just verdict is compromised”: Hunter v. Ellenberger (1988), 25 C.P.C. (2d) 14 (Ont. H.C.).

[60]      Allowing the defence experts to testify and offer opinions contrary to Dr. Becker and Dr. Rosenblat presented a skewed picture to the jury and was grossly unfair to the appellant.

[61]      The defence asserted and relied on the truth of Dr. Sanchez’s 2001 letter of opinion concerning the appellant’s pre-accident state but did not call Dr. Sanchez as a witness. The importance of that opinion is shown by the fact that the defence placed it in the statement of its position that the trial judge expressed in his jury charge, which I repeat for convenience:

[62]      Dr. Sanchez’s report is two pages long and concludes with the “Impression” that the appellant was then suffering from a: “Major Depressive Disorder With Psychotic Features in partial remission.” She had been referred to Dr. Sanchez by her family doctor, Dr. Malicki.

[63]      The appellant objected to the use of Dr. Sanchez’s opinion at the trial when defence counsel asked her about Dr. Sanchez’s report.

[64]      And the questioning regarding Dr. Sanchez continued, taking up several pages of the transcript. I interpret this exchange as Ms. Girao’s objection, as a lay person, to the use by the defence of the Sanchez report for the truth of its contents without the defence producing Dr. Sanchez as a witness in accordance with s. 52 of the Evidence Act.

[65]      The exchange shows the way in which making the Joint Document Brief an exhibit made it easy for the defence to use the evidence for its hearsay purposes. This is what defence counsel did with Dr. Sanchez’s report, but without calling him.

[66]      Defence counsel stated that Dr. Sanchez’s report was in evidence under s. 35 of the Ontario Evidence Act, related to business records. It is also worth noting that as a result of the notice given by Allstate, Dr. Sanchez’s report was also in under s. 52 of the Ontario Evidence Act related to medical reports.

[67]      Dr. Sanchez’s report loomed large in the cross-examination of the appellant, the cross-examination of other medical witnesses, and in the argument.

[68]      I note that in his general jury instruction about medical records, the trial judge made comments about hearsay evidence:

[69]      However, the trial judge did not bring this caution home to the jury with respect to Dr. Sanchez’s opinion. His jury charge including his review of the evidence ratified the defence’s abuse of the opinion for hearsay purposes.

[70]      In his summary of the defence position, the trial judge told the jury:

[71]      In his summary of the evidence, the trial judge made extensive reference to evidence about Dr. Sanchez in the appellant’s testimony in-chief and in cross-examination. Dr. Maliki, the appellant’s one-time family doctor who had referred her to Dr. Sanchez was cross-examined on his report. Dr. Sanchez’s opinion also came up in the evidence of the appellant’s one-time psychiatrist, Dr. Manohar, who testified that she was her psychiatrist from 2005 to June 2012. Dr. Manohar was cross-examined about Dr. Sanchez’s report. Dr. Finkle, the defence psychiatrist, was cross-examined by the appellant regarding Dr. Sanchez’s report. The trial judge’s jury instructions including his summary of the evidence was provided to the jury.

[72]      The trial judge made no reference to Dr. Sanchez’s report in his threshold ruling or in the costs endorsement.

[73]      I infer that the defence used s. 35 of the Evidence Act as the basis for introducing Dr. Sanchez’s opinion letter in order to avoid having to call him as a witness and to avoid exposing him to cross-examination. Defence counsel then proceeded to cross-examine Ms. Girao on Dr. Sanchez’s opinion. He also put the opinion to several other witnesses, as noted earlier, and relied on it in the defence portion of the jury charge. Allstate used s. 52 as the basis of its notice but did not call Dr. Sanchez, even though the appellant had objected to his evidence.

[74]      In my view, the trial judge should have held that s. 35 of the Evidence Act is not the proper way to get medical opinion evidence in for the truth of its contents, which is what the defence did with Dr. Sanchez’s opinion. Section 35 relates to business records and the ordinary notations made in such records. As the cases hold, where the report is that of a medical practitioner, s. 52 is applicable. But, once the plaintiff objected, as she did, the trial judge was required to refuse to admit Dr. Sanchez’s report for the truth of its contents unless he was presented for cross-examination. On this basis, the hearsay content of Dr. Sanchez’s opinion was not admissible for any purpose, yet it formed a substantial plank in the defence position, and was amplified in the jury instructions. This error of law was procedurally and substantively unfair to Ms. Girao.

[75]      Ms. Girao properly served a notice under s. 52 of the Evidence Act and was entitled to refer to and rely upon Dr. Becker’s report, and the reports that it summarized and attached including Dr. Rosenblat’s report. She was entitled to summon Dr. Becker as a witness, as she did, and was entitled to have Dr. Becker explain his opinion to the jury. And if the defence wished to dispute Dr. Becker’s report, counsel could have cross-examined him, and then could have required Dr. Rosenblat to come and testify as to his psychiatric opinion.

[76]      A straightforward and conventional application of s. 52 of the Evidence Act to Dr. Becker’s report was the only way in which a reasonably level playing field could have been maintained in this action. As it was, because the trial judge effectively disqualified Dr. Becker and his evidence, Ms. Girao was left to fend for herself in a pitched battle with seasoned trial lawyers, with one hand effectively tied behind her back.

[77]      The injustice was compounded because the defence was able to extract from and rely on the hearsay value of Dr. Sanchez’s opinion without calling him so that he too could be subject to cross-examination. The trial judge did not recognize Ms. Girao’s objection to Dr. Sanchez’s report going into evidence as an objection that obliged the defence to summon Dr. Sanchez to give viva voce evidence and to be subject to cross-examination. The jury heard a one-sided story.

[78]      These combined errors alone, in my view, are a sufficient basis upon which to allow the appeal.

[79]      The statutory accident benefits settlement played an out-sized role in the defence’s strategy. It formed the basis of the defence’s attack on Ms. Girao’s evidence, her credibility and her reliability, and the credibility and reliability of the witnesses she called in support of her case, including the experts. Was evidence about the settlement properly admitted? In my view it was not, as I explain in this section of the reasons.

[80]      To set the context, the old law was that in a civil action a jury must be discharged automatically if something happened at the trial from which the jury might reasonably infer that the defendant was insured. The belief was that a jury sympathetic to the plaintiff would not hesitate to reach into the defendant’s insurer’s deep pocket to excessively compensate the plaintiff. The mention of insurance no longer necessarily results in the jury’s automatic discharge, because the court understands that juries share the general public awareness that motor vehicles are insured. See Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, 1997 CanLII 391 (SCC), [1997] 1 S.C.R. 1092.

[81]      If anything, the fact the jurors are savvy about car insurance leans in the other direction. Jurors are aware that larger insurance awards can increase the costs of the car insurance premiums they pay. The Ontario Law Reform Commission noted that one speculative explanation for the tendency of juries to make lower awards than judges was “the jurors’ self-interest in keeping insurance premiums low”: Report on the Use of Jury Trials in Civil Cases (Toronto: Ontario Law Reform Commission, 1996), at p. 28.

[82]      The change in the judicial approach does not mean it is open season in the treatment of evidence about insurance in jury trials.

[83]      Insurance defendants have seen it to their litigation advantage in some tort actions, as in this case, to seek to have details of the plaintiff’s previous statutory accident benefits settlement revealed to the jury. This has also occurred when the tort settlement preceded the statutory accident benefits dispute.

[84]      The issue is whether some or all of the details of the statutory accident benefits settlement can be admitted into evidence in the related tort trial arising out of the same accident in the examinations and cross-examinations of parties and witnesses, and in argument.

[85]      Trial courts have wrestled with this issue and the cases are mixed. Judges have been somewhat hesitant in admitting the evidence, recognizing the possible impact on the jury to the prejudice of the plaintiff.

[86]      I begin by describing the litigation dynamic set by Ontario’s system for compensating people injured in motor vehicle accidents. I then address the law of evidence in that context.

[87]      Ontario has a hybrid system for compensating people injured in motor vehicle accidents. One component is the modified at-fault tort system. The other component is the no-fault statutory accident benefits system. The policy basis for the hybrid system was explained by this court in Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129, [1993] O.J. No. 2446 (C.A.), at para. 6. The plaintiff’s access to the at-fault tort system is limited, but the plaintiff is given access to no-fault accident benefits for income loss and medical and rehabilitation expenses. The system is based on “an exchange of rights wherein the accident victim loses the right to sue unless coming within the statutory exemptions, but receives more generous first-party benefits, regardless of fault, from his or her own insurer.” The system is “designed to control the cost of automobile insurance premiums to the consumer by eliminating some tort claims.” See also Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776, (C.A.), per Laskin J.A., at para. 7, and Cadieux (Litigation Guardian of) v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, at paras. 10-11, 85-86, leave to appeal refused, [2019] S.C.C.A. No. 63.

[88]      The intersection between the two components of the system occurs when the statutory accident benefits are reconciled with the award of tort damages under s. 267.8 of the Insurance Act. Although the two sources of compensation are independent, there is some overlap and s. 267.8 is intended to prevent double recovery by the plaintiff. The functioning of the system is explained in Cadieux at paras. 22-24.

[89]      As noted in Basandra v. Sforza, 2016 ONCA 251, 130 O.R. (3d) 466, at para. 21, affirmed in Cadieux, the statutory scheme sets up benefits silos: “Section 267.8 of the Insurance Act creates several categories of statutory accident benefits to be taken into account as possible reductions in a jury award: [the first silo is] income loss and loss of earning capacity (s. 267.8(1)); [the second silo is] health care expenses, which includes attendant care costs by definition under s. 224(1) of the Act (s. 267.8(4)); and [the third silo is] other pecuniary losses such as housekeeping costs (s. 267.8(6)).” The tort award is to be reduced by the amount of statutory accident benefits received by the plaintiff on the basis of these three silos.

[90]      The trial judge reconciles the no-fault benefits received by the plaintiff with the award of tort damages after the jury’s damages verdict by reducing the tort award: Basandra, at para. 20. The jury has no role in this exercise. The practice in civil jury trials is to include a jury instruction that they are to “make their award, if any, on a gross basis with no deduction for any collateral benefits” on the basis that the trial judge will make any required adjustment: Malfara v. Vukojevic, 2014 ONSC 6604, at para. 1, per Firestone J.

[91]      It is trite law that evidence is admissible if it is relevant to a fact in issue in the case and is not subject to an exclusionary rule. The trial judge also has discretion to refuse to admit evidence where its prejudicial effect would exceed its probative value: Draper v. Jacklyn (1969), 1969 CanLII 6 (SCC), [1970] S.C.R. 92. That case involved graphic photographs of a motorist’s injuries that were admitted at trial. While holding that the photographs were properly admitted, Spence J. said at p. 98:

[92]      This principle applies generally and beyond physical evidence along with the trial judge’s residual discretion to exclude evidence. See R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 44; R. v. Meddoui, 1991 CanLII 42 (SCC), [1991] 3 S.C.R. 320, at para. 3; and Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at paras. 29-32.

[93]      I bring both lenses, relevance and prejudicial effect/probative value, to bear on the admissibility of the evidence of a statutory accident benefits settlement in a tort action.

[94]      The first question is whether evidence of the details or existence of the statutory accident benefits settlement is relevant to a fact in issue in the tort action. “Evidence is relevant if, as a matter of logic and human experience, it renders the existence or absence of a material fact in issue more or less likely”: R. v. Truscott (2006), 2006 CanLII 60337 (ON CA), 216 O.A.C. 217 (C.A.), at para. 22. In a civil trial, the material facts in issue are set in general by the nature of the cause of action and defence and then more specifically by the pleadings: Rules of Civil Procedure, r. 25.06(1).

[95]      The limited case law shows that defendants have pursued several avenues to argue that the details of the statutory accident benefits settlement are relevant in the tort action and should be revealed to the jury.

[96]      The less contentious avenue has been to allege the plaintiff’s failure to use the settlement proceeds to mitigate future losses, as in Farrugia v. Ahmadi, 2019 ONSC 4261, and Peloso v. 778561 Ontario Inc. (2005), 28 C.C.L.I. (4th) 10 (Ont. S.C.).

[97]      In Farrugia, the trial judge did not permit the defence to reveal the totality of the settlement to the jury but did permit questions on several benefits on the basis that the pleadings had put them in dispute. He permitted questions on caregiver expenses, attendant care expenses, and housekeeping and home maintenance expenses: at para. 29. The plaintiff had used some of the proceeds to renovate her house.

[98]      In Peloso, the trial judge permitted the defence to ask questions about the plaintiff’s lack of compliance with treatment recommendations on the basis of the allegation that she had failed to mitigate her future losses. Instead of using the money for the recommended treatments, the plaintiff bought a house. The trial judge reduced the damages 30 percent for the plaintiff’s failure to mitigate: at para.  377.

[99]      The more contentious avenue has been to claim that the benefits settlement eroded the plaintiff’s motivation to work, thereby increasing the future income losses the defendant will be required to pay through the tort award. This avenue has been rejected by trial judges on the basis of relevance, as in Ismail v. Flemming, 2018 ONSC 5979, or on the basis that it was excessively prejudicial to the plaintiff, as in Farrugia, which I consider in the next section

[100]   In Ismail the trial judge granted an order prohibiting questions by the defence as to “any suggestion, submission, argument or other reference at trial to the effect that the receipt of collateral benefits is relevant to [the plaintiff’s] motivation to work”: at para. 37. He acknowledged, at para. 17, that “there was an intuitive logic to the defendants' contemplated line of questioning and argument, and their corresponding assertions of relevance,” but he largely rejected that logic, relying in part on the trial and appellate decisions in Kitchenham v. AXA Insurance, 2005 CanLII 16620 (ON SC), 23 C.C.L.I. (4^th) 76 (Ont. S.C.), rev’d on other grounds, 2007 CanLII 37892 (ON SCDC), 229 O.A.C. 249 (Div Ct.), rev’d on other grounds, 2008 ONCA 877, 94 O.R. (3d) 276.

[101]   In Kitchenham, the tort settlement came before the benefits trial.[1] The benefits carrier wanted to argue that the plaintiff could work, which would have reduced the carrier’s liability to pay income replacement benefits, alleging that the plaintiff, having been enriched by the tort settlement, lacked the financial incentive to work. The motion judge in Kitchenham said, at para. 53, that “documents relating to the settlement of the tort claim have no relevance to the present proceedings,” and refused to order the production of the tort settlement documents. His view on this issue was accepted by the Divisional Court and by this court.

[102]   The motion judge in Kitchenham explained, at para. 52:

[103]   Doherty J.A. agreed with the motion judge and noted, at para. 14:

[104]   The trial judge in Ismail found, at para. 32, that Kitchenham applied in principle whether the tort settlement came first or the statutory accident benefits settlement. He prohibited the defence from making any suggestion that the receipt of collateral benefits affected the plaintiff’s motivation to work.

[105]   The defence argues that the Ismail trial judge’s reliance on Kitchenham was misplaced; it is distinguishable because it was a benefits action, not a tort action like this case.

[106]   There is a basic difference between benefits actions like Kitchenham and tort actions like Ismail. In tort actions the statutory accident benefits must be accounted for in the final tort award under the Insurance Act. The same is not true for benefits actions in which there is no direct relationship between the tort settlement and the benefits settlement. That said, they are similar from the perspective of the trier of fact, for whom, as Doherty J.A. stated in Kitchenham: “The issue in the benefits action is whether the plaintiff is disabled and unable to work.” That is a substantive issue in tort actions including this one; motivation to work is relevant to credibility but credibility is a collateral and testimonial issue.

[107]   The defence submits that the governing authority is McLean v. Knox, 2013 ONCA 357, 306 O.A.C. 203, which effectively elevated the plaintiff’s credibility to the equivalent of a fact in issue of substantive relevance. In my view, this submission overstates the effect of McLean.

[108]   In McLean the plaintiff was a passenger injured in a car accident in which the driver was intoxicated. He sued the driver and the bar that overserved him. The jury awarded the plaintiff general damages but did not award him anything for future income loss. The trial judge set aside the jury’s verdict on future income loss and substituted his own award of $117,200. This court allowed the bar’s appeal. Gillese J.A. noted, at para. 24, that “it cannot be said that there was no evidence on which the jury could reject a claim for future income loss.” To the contrary, she found, at para. 23:

[109]   This sets the context for the sentence on which defence counsel relies, in para. 24: “Even assuming that the defence evidence on the plaintiff's injuries was ‘uncontradicted and uncontested’, as the trial judge found, that evidence was not determinative of the question of future income loss - credibility and motivation to work were also relevant to such a determination” (emphasis added).

[110]   I would not give effect to the respondent’s argument regarding the effect of McLean for two reasons: First, McLean did not elevate the plaintiff’s credibility to the equivalent of a fact in issue of substantive relevance. This is not the jurisprudential point on which the case turned. The court was not expressing a general principle of broad application, but was merely commenting on the actual evidence in the case. The defence adduced positive evidence showing that the plaintiff earned more after the accident than before and that he had other job opportunities he had not taken. No doubt the plaintiff did not fare well in cross-examination in light of that evidence, hence the reference to his poor credibility. Even with his acknowledged injuries, the jury did not believe that he was unable to work because he had been working.

[111]   Second, the court in McLean was not using the word “relevant” in the sense of specifying a norm for future cases but as a description of the plaintiff’s failure to establish the credibility of his claim to be unable to work.

[112]   In my view, a plaintiff’s motivation to work is a collateral issue related to the credibility of the assertion that she or he is unable to work. How much evidence will be permitted on the issue of the plaintiff’s alleged malingering or motivation to work is a matter for the trial judge’s discretion in considering the balance of prejudicial effect and probative value, to which I now turn.

[113]   The second question in the admissibility of evidence is whether its prejudicial effect would exceed its probative value. In Farrugia, the defendants argued that the plaintiff had misspent the proceeds of her statutory accident benefits settlement. Because she could have used the funds to reduce her future losses, she had failed to mitigate the damages she sought in the tort action.

[114]   The trial judge refused to allow the total amount of the settlement to be revealed to the jury but did allow evidence about certain components of the settlement to be adduced, for two reasons. First, he pointed to reasoning prejudice that disclosure of the total settlement could create in the minds of the jury. He found, at para. 27, that questions on the totality of the settlement “would create a prejudicial effect in the minds of the jury that would exceed the probative value of those questions, as would any answer as to the receipt of those funds or the use to which they were put.” He added that: “This prejudicial effect would be all the more pronounced because of the lack of materiality for asking those questions in the first place.”

[115]   Second, the trial judge in Farrugia pointed to the unfairness of the position in which the plaintiff would be left as a form of “double jeopardy.” He noted, at para. 28:

[116]   The trial judge in Farrugia assessed relevance against the pleading. In his view it “was overly broad and failed to provide any other basis to establish how such a question would be relevant”: at para. 27. He did permit limited cross-examination, as I will explain.

[117]   In the same vein, while the trial judge in Ismail, at para. 10, cited McLean v. Knox, he then pointed out, at para. 33, that the defence’s challenge was not focussed on preventing double recovery, but on “quite a different purpose”, being to form the “basis for suggesting that the plaintiff is not really disabled, but effectively choosing not to work because her receipt of collateral benefits undermines her motivation to work.” This he saw as a purpose related purely to credibility.

[118]   In Ismail, the trial judge canvassed several policy considerations implicated by the suggestion that the plaintiff was not actually disabled but rather lacked the motivation to work because she had received statutory accident benefits. Noting the statutory entitlement to no-fault benefits and the fact that most people injured in a motor vehicle accident would claim them, the trial judge said, at para. 34: “In my view, use of collateral entitlements premised on disability to support arguments of ability, in order to undermine residual claims for recovery not addressed by such collateral benefits, seems not only ironic but unfair.” He cautioned that such an argument could be made “in every case where a plaintiff has received collateral benefits, regardless of idiosyncratic concerns about credibility.” He worried that this avenue of attack could create a perverse incentive under which, in order “to avoid having their legitimate and possibly greater claims for future income loss being compromised,” plaintiffs “legitimately disabled by motor vehicle accidents, and unable to work, [would] … refrain from aggressively pursuing all collateral benefits otherwise properly available to them.”

[119]   Several decisions have highlighted the plaintiff’s credibility as the basis for allowing full exploration of the benefits settlement by the defence. It is fair to say that credibility is often especially in issue when the plaintiff’s complaint relates to soft tissue injuries or to the psychological effects of a motor vehicle accident that lack objective markers. See for example Djermanovic v. McKenzie, 2014 ONSC 1335, 32 C.C.L.I. (5th) 96, at para. 40.

[120]   Can the holdings from McLean and Kitchenham be reconciled? I do not read them to be inconsistent. Kitchenham identified the substantive fact in issue as the plaintiff’s ability to work. McLean noted that the plaintiff’s credibility in asserting the inability to work can be tested with positive evidence and in cross-examination leading to the jury finding the plaintiff not to be credible.

[121]   The core issue is whether the plaintiff is able to return to work, not the motivation to work, as Doherty J.A. noted in Kitchenham. The plaintiff’s burden is to prove his or her inability to work. The defence asserts that the plaintiff is able to return to work. Typically, the evidence will involve a physical examination of the plaintiff including medical reports, a psychological examination where psychological injury is alleged, the testimony of other witnesses, evidence such as surveillance showing the plaintiff doing something he or she claimed not to be able to do, and effective cross-examination.

[122]   Motivation to work is a collateral issue that the defence can raise in cross-examination to test the plaintiff’s credibility as to why he or she is not working. Can evidence in the form of the details of the benefits settlement be used in the plaintiff’s cross-examination?

[123]   Cross-examining counsel are afforded broad scope for cross-examining a witness on matters related to credibility: R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, [1986] S.C.J. No. 65, at para. 17. But there are limits.

[124]   One limit flows from the trial judge’s ruling excluding certain evidence that fails the test of relevance or the prejudicial effect/probative value balance. Examining counsel cannot go down the forbidden road.

[125]   Another limit is the collateral fact rule, stipulated by Peter J. Sankoff, The Law of Witnesses and Evidence in Canada, (Toronto: Thomson Reuters Canada Limited, 2019), at c. 12.5(a):

[126]    In Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), the authors give a special caution regarding juries at s. 16.136: “Juries, in particular, could be influenced by suggestions made in cross-examination, but not subsequently proved. Most juries would assume that a responsible counsel would not make such suggestions unless there was some justification for them in his or her brief.”

[127]   The trial judge can also place limits on cross-examination where it lacks a good faith basis: Lyttle, at para. 66; takes “cheap shots”: R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 16 O.R. (3d) 1, [1993] O.J. No. 2589 (C.A.), at para. 51; or is “sarcastic, personally abusive and derisive”: R. v. Bouhsass (2003), 2002 CanLII 45109 (ON CA), 169 C.C.C. (3d) 444 (Ont. C.A.), at para. 11. As noted by Doherty J.A. in R. v. R. (A.J.) (1994), 1994 CanLII 3447 (ON CA), 20 O.R. (3d) 405, [1994] O.J. No. 2309 (C.A.), at para. 27: while counsel is entitled to conduct a vigorous cross-examination, “[n]o counsel can abuse any witness.” This is the point of r. 53.01(2) of the Rules of Civil Procedure.

[128]   The trial judge in R. v. Hawke, (1974), 3 O.R. (2d) 201, [1974] O.J. No. 1856 (Ont. H.C.), made a pertinent comment at para. 29, rev’d on other grounds (1975), 1975 CanLII 672 (ON CA), 22 C.C.C. (2d) 19, [1975] O.J. No. 2200 (Ont. C.A.): “And I would think that in appropriate situations, any trial Judge would at least protect the witness who was asked a demeaning question where the Judge has reason to believe it is without foundation or for some ulterior motive.”

[129]   Several principles emerge from this discussion.

[130]   First, the trial judge has broad discretion to control the proceedings to ensure that trial fairness results.

[131]   Second, Ontario’s hybrid motor vehicle accident compensation system has as its primary concern the adequate compensation of injured persons. The reconciliation of benefits and tort damages aims to prevent double recovery. As noted, the practice in civil jury trials is to include an instruction to the jury to make their award of damages on a gross basis with no deduction for any collateral benefits. The reconciliation of the receipt of benefits and tort damages is not expected to be controversial in most instances. The task is left to the trial judge in order to take it out of contention before the jury. Perhaps that statutory allocation of responsibility to the judge reflects a recognition that the jury might otherwise be tempted to do some informal discounting of the damages award to take account of the statutory accident benefits the plaintiff has already received.

[132]   Third, it falls to the trial judge in a tort action to decide contextually whether and to what extent evidence about the statutory accident benefits settlement is to be admitted. The principles of evidence law guide the decision. The first question is whether evidence of the details or existence of the statutory accident benefits settlement is relevant to a fact in issue in the tort action. The second question is whether the probative value of the evidence would exceed its prejudicial value. Striking the balance engages the trial judge’s discretion.

[133]   Fourth, evidence regarding some of the individual benefits received in the statutory accident benefits settlement would be relevant and admissible if the allegation is made that the plaintiff’s abuse of a benefit will have an impact on the calculation of the tort damages. For example, if the defence pleads that the plaintiff failed to use the earmarked settlement proceeds to mitigate certain related future losses, as in Farrugia and Peloso, then certain details of a settlement will be directly relevant to whether the defendant or the plaintiff is liable to the future losses. The plaintiff is free to use proceeds of a settlement as he or she sees fit, but in some circumstances it is appropriate to require the plaintiff to account for the expenditure of settlement funds.

[134]   There is a two-fold proviso: the pleadings must have put the issue into dispute with appropriate particularity; and there must be an air of reality to the issue, to be assessed in a voir dire, which is supported by evidence and admissible expert evidence if necessary. In my view, the same proviso would apply to a defence allegation that the plaintiff is malingering or lacks the motivation to work.

[135]    Fifth, the totality of the statutory accident benefits settlement would rarely be relevant and would usually be more prejudicial than probative, particularly in a jury trial, even when the defence alleges that the plaintiff is malingering or lacks the motivation to work. These allegations are easy to make and difficult for the plaintiff to defuse. The plaintiff’s burden to prove his or her inability to work is especially heavy for soft tissue injuries, chronic pain, and psychological injury such as depression where objective evidence is lacking. The accusation of malingering prejudicially adds to the plaintiff’s evidentiary burden by sowing suspicion in the minds of the jury. The accusation of malingering can form the basis of withering cross-examination of the plaintiff and allow counsel to repeat the malingering accusation in the examination and cross-examination of other witnesses. In this way, the allegation of malingering can achieve narrative heft by repetition as a mnemonic reminder to the jury of the defence’s theory.

[136]   Sixth, there are public policy grounds for being cautious. Permitting the benefits settlement to undermine the tort claim can expose the plaintiff to unfairness, as Leitch J. noted in Ismail, at para. 34, which I repeat for convenience: the “use of collateral entitlements premised on disability to support arguments of ability, in order to undermine residual claims for recovery not addressed by such collateral benefits, seems not only ironic but unfair.” In Farrugia, Emery J. called it a form of double jeopardy. I agree with their observations. Further, making the evidence of statutory accident benefits settlement generally admissible in tort actions can create a perverse incentive on the plaintiff to keep the statutory accident benefits claim alive so that it does not become a defence weapon in the tort action. However, it is a general principle of our law that settlements are to be encouraged, not discouraged.

[137]   Finally, where evidence of the statutory accident benefits settlement is in evidence before the jury, the jury instructions should carefully explain how the motor vehicle accident compensation system in Ontario functions, including the fact that the plaintiff was entitled to the statutory accident benefits, and the distinct roles of the trial judge and the jury in setting the tort damages and accounting for benefits received so that the jury can understand the reasons for the allocation of the roles. The jury should be instructed not to reduce the award of damages because it believes that the benefits have compensated the plaintiff adequately for the accident. The current rather sparse standard instruction is not adequate.

[138]   In my view Ms. Girao’s trial did not satisfy most of these principles. I address them in the same order as the previous section.

[139]    First, the trial judge in this case gave the standard instruction to the jury and the defence argues that nothing more was required of him. I disagree for the reasons set out earlier. The prejudice of introducing evidence of a statutory accident benefits settlement must be carefully balanced against its probative value. The current practice of requiring the jury to establish damages on a gross basis, while leaving the trial judge the task of giving credit for benefits received, does not stop the jury from falling prey to reasoning prejudice.

[140]   Second, the record before this court does not show the trial judge’s reasoning process on admitting the statutory accident benefits settlement documents: the rationale for their admission based on relevance or the prejudicial effect/probative value balance is therefore not evident from the record. The trial judge permitted the defence to rely on the settlement and to cross-examine Ms. Girao on it. The settlement documents and details were included in volume 16 of the joint trial brief, which was slipped in as the first trial exhibit on the first day of the trial. Ms. Girao did not object to the admission of this material, probably because she did not know that she could.

[141]   Third, unlike Ferrugia, Ismail and Peloso, there was no clear basis on which the details of the benefits settlement should have been admitted. There is nothing in the statement of defence that put the benefits settlement in issue. In my view, there was no basis upon which to admit the evidence of Ms. Girao’s statutory accident benefits settlement or to allow the defence to cross-examine Ms. Girao on its details. Based on the pleadings, nothing in the cross-examination was relevant to a material fact at issue.

[142]   Fourth, the defence sought to reveal the total benefits settlement to the jury in order to underpin the assertion that Ms. Girao was malingering and unmotivated to work.

[143]   As previously noted, in his summary of the defence position, the trial judge told the jury in his charge: “Ms. Girao, despite working for some time after the accident, then went off work and pursued litigation as a full time job and began receiving accident benefits payments from her accident benefits carrier, eventually resulting in a large settlement that paid Ms. Girao $8,000 … more per year by not working.”

[144]   The defence alleged that Ms. Girao’s health issues were wholly unrelated to the accident and that her claim had features of “secondary gain”. In oral argument, counsel for the respondent agreed that the defence claim was essentially that Ms. Girao was malingering. He asserted that malingering was a psychological diagnosis according to the Diagnostic and Statistical Manual of Mental Disorders, 5th ed., issued by the American Psychiatric Association, (Washington DC: American Psychiatric Publishing, 2013). The DSM-V identifies malingering as a “condition,” not a “disorder,” at p. 726-727. That would make all trial questions regarding the influence of the statutory accident benefits settlement relevant. However, neither the statement of defence nor the factum before this court identified Ms. Girao’s alleged malingering as an issue.

[145]   Moreover, the transcript reveals that the whole thrust of the cross-examination was to portray the settlement as an unearned windfall to which Ms. Girao wanted to add another unearned windfall:

[146]   Given the pleadings and the material facts at issue, there was minimal, if any, probative value in this mocking and belittling cross-examination on the benefits settlement. It was highly prejudicial to Ms. Girao, having the perverse effect identified in Ismail of using “collateral entitlements premised on disability to support arguments of ability”. The trial judge did nothing.

[147]   In my view the trial was unfair to Ms. Girao for all of these reasons, quite apart from my earlier conclusion that the combined errors in addressing the medical evidence alone are a sufficient basis upon which to allow the appeal.

[148]   The overarching principle is that the trial judge is responsible for controlling proceedings to ensure trial fairness. Trials involving self-represented litigants can be especially challenging.

[149]   Numerous trial fairness concerns arise for self-represented litigants. In Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4, the Supreme Court endorsed the Statement of Principles on Self-represented Litigants and Accused Persons (2006) issued by the Canadian Judicial Council. The Statement provides guidance to the judiciary on how to ensure litigants “understand and meaningfully present their case, regardless of representation”: at p. 2. The enumerated principles appear under the following headings: promoting rights of access, promoting equal justice, and responsibilities of the participants in the justice system. The Statement sets out directions for the judiciary, court administrators, self-represented persons, and members of the bar. The section on promoting equal justice is particularly relevant. It states:

[150]   In Morwald-Benevides v. Benevides, 2019 ONCA 1023, 148 O.R. (3d) 305, I surveyed some of the responsibilities that trial judges have to self-represented litigants, and noted, at para. 34:

[151]   Although fairness concerns may animate how a trial judge exercises control over their courtrooms, there are clear limits to a trial judge’s duty to assist a self-represented litigant. The actuality and the appearance of judicial impartiality must be maintained. As Brown J.A. said in Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 22: “A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.” In order to preserve fairness in a trial, “the trial judge must, of course, respect the rights of the other party”: Davids, at para. 36.

[152]   Turning now to counsel’s duties as officers of the court. I note that the professional ethical obligations of a lawyer toward a self-represented litigant is fairly limited under the Law Society of Ontario’s Rules of Professional Conduct: see Law Society of Ontario, Rules of Professional Conduct, Toronto: Law Society of Ontario, 2000, (as amended), ch. 7, s. 7.2-9.[2] I would further note that lawyers have more general ethical obligations when acting as an advocate, such as the duty to bring to the court’s attention any binding authority that the lawyer considers to be directly on point that has not been mentioned by an opponent: see generally, Rules of Professional Conduct, ch. 5, s. 5.1-2.

[153]   I pointed out several fairness problems earlier in these reasons. There is no need to repeat them.

[154]   In this case the defence advanced evidentiary positions that were problematic on legally complex topics. In advancing those positions, the defence ought to have assisted the trial judge, as officers of the court, with the legal issues embedded in the positions. Ms. Girao needed the active assistance of the trial judge to deal with those positions.

[155]   In my view, it was open to the trial judge faced with a legally contentious issue to require counsel to assist. In this trial, for instance, the trial judge could have asked for a briefing note on the interplay of ss. 35 and 52 of the Evidence Act in relation to the medical evidence, including the relevant authorities. The same would apply to the introduction of the evidence of the totality of the statutory accident benefits settlement on which there are several relevant cases.

[156]   The impression left by the limited trial record is that the trial judge allowed himself to be led by trial counsel’s arguments. Ms. Girao, a self-represented, legally unsophisticated plaintiff who struggled with the English language, was left to her own devices. Fairness required more, consistent with the expectations placed on the trial judge by Statement of Principles on Self-represented Litigants and Accused Persons.

[157]   These are additional reasons for finding the trial to have been unfair to Ms. Girao.

[158]   The appellant moved to strike the jury under s. 108(3) of the Courts of Justice Act and r. 47.02 of the Rules of Civil Procedure. The trial judge refused but his reasons are not in the record on appeal. The appellant submits that the trial judge erred in refusing her motion and seeks an order for a new trial before a judge sitting without a jury.

[159]   The principles governing the discharge of a jury and appellate review were set out in Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241, by Epstein J.A. for the majority, at para. 43, and by Laskin J.A. who dissented but not on this point, at para. 118. Both relied on Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660, leave to appeal refused, [2006] S.C.C.A. No. 496.

[160]   The respondent relies on the premise underlying these decisions: “[T]he moving party has a substantial onus because trial by jury is a fundamental right”: McDonald-Wright v. O’Herlihy, 2007 ONCA 89, 220 O.A.C. 110, at para. 13, per Gillese J.A., who cited Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665 (C.A.). The respondent also relies on McDonald-Wright to support her position that the trial judge did not err in declining to strike the jury

[161]   To paraphrase several principles invoked by Epstein J.A. in Kempf, at para. 43 (5) and (7): Complexity of a case is a proper consideration in determining whether a jury notice should be struck, and that relates not only to the facts and the evidence, but also to the legal principles that apply to the case. Trial judges are presumed to know the law and to be able to explain it to a jury.

[162]   In Kempf, at para. 119, Laskin J.A. said: “The question for the trial judge is simply this: will justice to the parties be better served by dismissing or retaining the jury?” This standard has been cited in numerous cases: see e.g. Cowles, at para. 37; Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622, [1990] O.J. No. 2314, at para. 6. In Graham, Doherty J.A. continued at para. 6: “In many situations that discretion may, with equal propriety, be exercised for or against discharging the jury.”

[163]   As Laskin J.A. further pointed out in Kempf, at para. 119, in assessing whether a trial judge exercised discretion appropriately about whether to retain or discharge a jury, “context matters. Although the right to a trial by jury in a civil case is an important right, it is far from absolute.”

[164]   One contextual issue clearly at play with respect to Ms. Girao is the degree to which, if at all, a trial judge should consider a party’s self-represented status, among other factors, when determining whether to strike a jury. I addressed this issue in the immediately preceding section of these reasons.

[165]   The cases in which the principles have been expressed have tended to be family law cases in which there is no jury. But there are cases in which a party’s self-represented status was a factor considered by the trial judge in determining whether to strike a jury notice. In Desjardins v. Arcadian Restaurants Ltd. (2005), 2005 CanLII 27388 (ON SC), 77 O.R. (3d) 27 (Ont. S.C.), the defendant filed a jury notice but then later brought a motion to strike the jury several months before trial. The self-represented plaintiff opposed the motion. The motion judge initially dismissed the motion to strike without prejudice to the defendant on the belief that “with proper instructions to the plaintiff and to the jury, [he] would be able to manage the trial in a manner that would be perceived by the jury to be fair to both sides”: at para. 12. However, he left it open to the defendant to renew the motion at trial. When the defendant renewed the motion closer to trial, the motion judge granted the motion to strike the jury notice, noting that the self-represented status of the plaintiff has made the case “unduly complicated” so that the trial would be prolonged as a result: at para. 11(i) and (ii). He explained: “I have now come to the conclusion that it will virtually be impossible to provide the assistance I anticipate the plaintiff will require at trial in a manner that ensures that the defendant will not be placed at a significant disadvantage in the eyes of the jury”: at para. 13. See also Belende c. Greenspoon, 2006 Carswell 9135.

[166]   This case involved medical evidence that was not markedly different from the factual issues and legal principles routinely handled by juries in cases involving motor vehicle accidents and medical malpractice.

[167]   The respondent relies on McDonald-Wright, but I note Gillese J.A.’s statement, at para. 15:

[168]   The presence of a jury might well inhibit a trial judge in providing assistance to a self-represented litigant. In both Desjardins and Belende, the self-represented status of the plaintiff was clearly a significant factor that weighed in favour of striking the jury.

[169]   This is a case where the trial judge should have reconsidered his decision not to strike the jury as the trial unfolded and difficulties in trying this case fairly mounted through the long days of the trial.

[170]   In my view, the self-represented status of a litigant is a factor that might unduly complicate or lengthen the trial, leading the trial judge to conclude that prudence suggests the jury be discharged. As noted by Epstein J.A. in Kempf, “in many cases the ‘wait and see’ approach is the most prudent course to follow”: at para. 43 (9). As the trial unfolds, the trial judge becomes better able to assess the capacity of the self-represented party to present the case, whether as a plaintiff or a defendant. While remaining mindful of the substantive but not absolute right to a trial by jury, the trial judge then is positioned to determine whether justice to the parties would be better served by dismissing or retaining the jury.

[171]   While I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality. I should not be understood as stating that the presence of a self-represented litigant should invariably lead to the dismissal of a civil jury. In many if not most cases, a trial judge should be able to fairly manage a civil jury trial with a self-represented litigant, with the willing assistance of counsel acting in the best traditions of officers of the court.

[172]   In my view, the trial judge erred in failing to revisit his decision not to strike the jury.

[173]   The appellant asks that this court order the case to be retried by a judge sitting without a jury. This court has from time to time reversed a trial judge for striking a jury notice, directing a new trial before a judge and jury: see e.g. Kempf, at para. 78. While s. 134(1) of the Courts of Justice Act gives this court broad jurisdiction to make remedial orders, I have found no cases in which this court has directed that a new trial proceed without a jury. In my view the prudent response to the appellant’s request is to refuse the order she seeks and to leave it to the trial judge to determine whether the jury should be discharged should a new trial proceed.

[174]   I have outlined above the skewed orientation in the evidence that went to the jury. This orientation also made its way into the trial judge’s threshold decision. In the threshold motion, the trial judge “incorporate[d] by reference the review of the evidence in [the] jury charge”: at para. 6. Although he did not otherwise refer to the opinion of Dr. Sanchez, it underpinned the trial judge’s basic approach. Because some of the best evidence that supported the statutory accident benefits settlement was excluded by the trial rulings, there was little to oppose the defence’s evidence. Dr. Sanchez’s opinion also provided the trial judge with a lens through which he looked askance at the other medical evidence Ms. Girao led. Because of the basic unfairness that permeated the trial, I would set aside the ruling on the threshold motion.

[175]   At trial, the appellant functioned as a legally-untrained, self-represented, non-English speaking litigant in testifying, examining and cross-examining through a Spanish interpreter. She was faced with a phalanx of defence counsel, two representing Ms. Cunningham, and two representing Allstate Insurance Company of Canada.  The trial was 20 days long, involved many witnesses, and considered complex medical evidence.

[176]   Ms. Girao was entitled to but did not get the active assistance of the trial judge whose responsibility it was to ensure the fairness of the proceeding. As a self-represented litigant, she was also entitled to, but did not get, basic fairness from trial defence counsel as officers of the court. The trial judge was also entitled to seek and to be provided with the assistance of counsel as officers of the court, in the ways discussed above. This did not happen.

[177]   I would allow the appellant’s appeal, set aside the judgment and orders, and order a new trial. I would award the costs of this appeal and of the trial to the appellant, including her disbursements. If the parties cannot agree on the quantum the appellant may file a written submission no more than five pages in length, in addition to receipts for disbursements, within 10 days of the date of this decision, and the respondent may respond within an additional 10 days.