In Iannarella v Corbett, 2015 ONCA 110, the Court of Appeal set aside the judgment that had been obtained at the Trial level and substituted a finding of liability against the Respondents/ Defendants. A new trial was ordered on the issue of damages. At Trial, the Jury found that the Defendant had not been driving negligently and the action was dismissed on liability grounds. Had liability been established, the Jury would have awarded general damages of $32,000.00 and $40,571.00 as damages for past loss of income. No monies would have been awarded for damages for future income loss.

This case is interesting in that the Court of Appeal addresses many issues:

  1. The Jury address with regard to liability onus in a rear-end motor vehicle collision;
  2. The production of surveillance documentation in the Affidavit of Documents and the use of undisclosed surveillance documentation at Trial;
  3. The Defence’s Jury address making substantive use of the surveillance evidence;
  4. The use of expert’s reports in the Plaintiff’s Cross-Examination;
  5. Threshold motion.

The case goes extensively through various cases with regard to a Jury charge with regard to liability in a rear-end collision.

The Court of Appeal found that there was no good reason for the Trial Judge to have departed from the principle expressed in the standard Jury charge, which is consistent with the established jurisprudence. The standard charge provides:

“Members of the Jury, generally speaking, when one car runs into another from behind, in the absence of any excuse for such a collision, the driver of the rear car must satisfy you that the collision did not occur as a result of his negligence.”

The Court of Appeal states that they would make one minor change to the wording of the standard charge: The phrase “in the absence of any excuse for such a collision” should be deleted.

In view of the Court of Appeal, the driver of the rear vehicle might have an excuse for the collision that satisfies the Jury that the accident did not occur as a result of his or her negligence. However, the duty rests with the Defendant not the Plaintiff. It was found that the Trial Judge emphasized throughout the charge that the onus was on the Plaintiff.

It was also stated that the Plaintiff’s counsel did not object to this eliminate of the charge at Trial and therefore, the appeal on this issue should be dismissed. However, the Court of Appeal stated that the Plaintiff’s counsel made their position on the onus plain to the Trial Judge in the motion for directed verdict, but the Trial Judge rejected it. The Court of Appeal found it in unnecessary for counsel to record an additional objection on the same basis.

Accordingly, the Court of Appeal found that although the other drivers in the vicinity were able to stop their vehicles without incident, the Defendant was accelerating when he lost visibility, but rather than breaking gently, he hesitated and then slammed on the brakes. He broke traction and slid into the Plaintiff’s vehicle. It was found that the Defendant was plainly going too fast for the weather and road conditions and could have avoided the collision by exercising proper care. Accordingly, the Court of Appeal set aside the Jury verdict and substituted a finding of liability as against the Defendant.

Surveillance

Defendant’s counsel had many hours of surveillance from the period of November 20th, 2009 to March 18th, 2012, the day before the Trial began. However, the surveillance was never disclosed to Plaintiff’s counsel, not even in the Affidavit of Documents.

The Court of Appeal found as follows:

“In my view, the improper use of the surveillance evidence gave rise to a form of Trial by ambush. This came about because the Trial Judge did not require the defence to comply with the Rules in relation to the disclosure of the surveillance evidence and the provision of particulars. The Trial Judge did not exclude the surveillance evidence under Rule 30.08, nor did he assess its relevance and require the Respondents to comply strictly with the rule in Brown v Dunn before admitting it. He did not provide the Jury with any instructions concerning the permissible use of the surveillance despite the Defence’s problematic Jury address, nor did he provide the Jury with a limiting instructions.

In my view, the surveillance evidence was effectively admitted into evidence and used by the Jury for its substantive context, and not just for its impeachment value. The Trial Judge errs, especially when taken together, where serious and critically impaired the fairness of the Trial. The damages verdict cannot stand. I would set it aside and order a new Trial on damages.”

Threshold Motion

The Trial Judge found that the Plaintiff had not proven that he had a permanent impairment of a physical or psychological function caused by the accident and exercised this authority under section 267.5 of the Insurance Act to dismiss the Appellant’s claim for non-pecuniary damages. The Court of Appeal found that the Trial was unfair for the reasons explained in its decision and therefore the threshold ruling must be set aside.