



COURT OF APPEAL FOR ONTARIO

CITATION: Fonseca v. Hansen, 2016 ONCA 299

DATE: 20160426

DOCKET: C58894

Gillese, MacFarland and van Rensburg JJ.A.

BETWEEN

Debbie Fonseca

Plaintiff (Appellant/

Respondent by way of cross-appeal)

and

Paul Hansen, Transx Ltd. and HSBC Bank Canada

Defendants (Respondents/

Appellants by way of cross-appeal

Scott C. Hutchison and Matthew R. Gourlay, for the
    appellant/respondent by way of cross-appeal

Ian D. Kirby, for the respondents/appellants by way of
    cross-appeal

Heard:  January 22, 2016

On appeal and cross-appeal from the judgment of Justice Kendra
    D. Coats of the Superior Court of Justice, sitting with a jury, dated May 22,
    2015.

MacFarland J.A.:

OVERVIEW AND ISSUES

[1]

The appellant was involved in a motor vehicle collision on March 20,
    2008 in Mississauga, Ontario. She was stopped at a red light at an intersection
    when her vehicle was hit from behind by a transport truck. At the time, the
    appellant was enrolled in a dentistry general practice residency in Vancouver,
    B.C. She was home for the Easter long weekend, visiting her family, when she
    was involved in the collision. She suffered injuries as the result of the
    accident which she claimed prevented her from maintaining a full time clinical
    dentistry practice.

[2]

The respondents admitted liability shortly before the commencement of
    the trial and accordingly the contest was confined to the assessment of
    damages.

[3]

In summary, the respondents took the position that the appellant had
    recovered from her injuries sufficiently by August 2011 to resume a full time
    clinical practice. The appellants position was that she was only able to work
    15 to 20 hours per week in a clinical setting and that her condition was likely
    to be permanent. Her economic expert, Dr. House, opined that her future income
    loss would be between approximately $6,000,000 and $18,000,000 depending on the
    career path she would have followed in the absence of the accident.

[4]

At the conclusion of the trial, the jury awarded damages to the
    appellant as follows:

1)

General Damages                     $104,000

2)

Past Income Loss                     $584,187
[1]

3)

Future Income Loss                  $112,496

4)

Other Special Damages            $  44,412

5)

Future Health Care Costs          $  27,450

[5]

There are two issues in this appeal. They are framed in the appellants
    factum as follows:

1)

Is the jurys award of $112,496 for future income loss fundamentally
    inconsistent with the other damages awarded or so low as to amount to an
    injustice?

2)

Did the trial judge err by failing to instruct the jury that pre-trial
    communication between [the appellants] counsel and an expert witness was not a
    proper basis upon which to reject the experts testimony?

[6]

The appellant asks this court to set aside the jurys verdict and the
    judgment in relation to her future income loss. She asks that this court
    substitute its own assessment of her future income loss and submits that a fair
    and reasonable amount is $6,000,000  the lower bound of future income loss
    that Dr. House put forward at trial. In the alternative, she asks that this
    court order a new trial limited to the question of future income loss.

[7]

The respondents by way of cross-appeal seek leave to appeal the trial
    judges costs order
[2]
and raise three issues:

1)

Whether the trial judge erred by failing to award the appellant her
    costs only to the date of the respondents offer to settle and the respondents
    their costs after that date in accordance with rule 49.10 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194;

2)

Whether the trial judge erred in determining that the respondents
    entitlement to an assignment of collateral and statutory accident benefits
    should be limited in the manner specified in her judgment;

3)

Whether the trial judge erred in awarding interest on the awards for
    past income loss and special damages at a blended rate rather than at the rate
    prescribed by ss. 127 and 128 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43.

THE APPEAL

Issue #1  The Jurys Damages Award

Standard of Review

[8]

The law in relation to when it will be appropriate for an appellate
    court to overturn the verdict of a jury is well-settled.

[9]

In
McCannell v. McLean
, [1937] S.C.R. 341, at p. 343, Duff C.J.
    said:

The principle has been laid down in many judgments of this
    Court to this effect, that the verdict of a jury will not be set aside as
    against the weight of evidence unless it is so plainly unreasonable and unjust as
    to satisfy the Court that no jury reviewing the evidence as a whole and acting
    judicially could have reached it.

[10]

The
    court quoted from the judgment of Lord Wright, with which two other members of
    the majority concurred, in
Mechanical and General Inventors Co. Ltd
.
v.
    Austin
, [1935] A.C. 346, at p. 375 (H.L.):

Thus the question in truth is not whether the verdict appears
    to the appellate Court to be right, but whether it is such as to show that the
    jury have failed to perform their duty. An appellate Court must always be on
    guard against the tendency to set aside a verdict because the Court feels it
    would have come to a different conclusion.

[11]

The
    law has not changed despite the passing of many decades. In
Koukounakis v.
    Stainrod
(1995), 23 O.R. (3d) 299, at p. 305 (C.A.), Doherty J.A. put
    the test this way:

Where, as here, the assessment was made by a jury, and there is
    no suggestion that the instructions to the jury were erroneous or deficient,
    the appellant must establish that the amount awarded is so inordinately high
    that it must be a wholly erroneous estimate of the damages. Appellate courts
    do not decide whether a jury made the correct award for general non-pecuniary
    damages, but only whether the award is beyond the scope of anything that could
    be accepted as reasonable. [Citations omitted.]

[12]

In
Koukounakis
the issue was whether an award for general damages made by
    the jury in that case was too high. The same principle, of course, is
    applicable here where the award is said to be so low as to amount to an
    injustice.

[13]

This
    statement of the law has been followed consistently in decisions of this court;
    the standard for appellate review of a jury verdict in a civil case is very
    high and the onus is on the appellant: see
Lazare v. Harvey
, at 2008
    ONCA 171, at para. 24, leave to appeal refused, [2008] S.C.C.A. No. 320.

The Appellants Position

[14]

In
    the present case, there is no suggestion that the trial judge erred in her
    charge to the jury on this issue. The appellants position is succinctly stated
    in her factum as follows:

Can the future income loss award of only $122,496 be rationally
    reconciled,
on any basis whatsoever
, with the
    jurys apparent acceptance of all the plaintiffs economic evidence, and its
    apparent acceptance that she would have
continuing
future losses (and thus the future health care costs)?

[15]

As
    posed the question is a loaded one. Any answer depends on two assumptions built
    into the question  the jurys apparent acceptance of all the plaintiffs
    economic evidence and its apparent acceptance that she would have continuing
    future losses.

[16]

In
    support of the first assumption, the appellant suggests that the following can
    be inferred from the jurys verdict. First, the amount awarded for past income
    loss indicates that the jury found the appellant would have worked as a general
    practice dentist but for her injury. Second, this award also indicates that the
    jury accepted the economic evidence of Dr. House and rejected the respondents
    theory that she had fully recovered by August 2011.

[17]

With
    respect to the second assumption, the appellant, in her factum, says that the
    future health care costs award was ample and provides no insight into the
    factual findings that may have underpinned the incongruous future income [loss]
    award. The appellant further submits that the notion that she would somehow
    fully recover only a few months after trial finds no basis in the evidence
    adduced by either party at trial.

Analysis

[18]

The
    difficulty for the appellant here is that in relation to both assumptions there
    was conflicting evidence. As Lang J.A. explained in
Lazare v. Harvey
, at
    para. 29, [i]n those cases where there is some evidence to support the jury's
    verdict, high deference will be accorded and the verdict will not be set aside
    even if another conclusion is available on the evidence.

[19]

Whether
    the appellant was or would ever be sufficiently recovered from her injuries to
    carry on a full time clinical practice was the hotly contested issue at trial. Of
    the seventeen witnesses called at trial (other than the appellant herself),
    eight were expert medical witnesses who offered opinion evidence about the
    nature of the appellants injuries and their respective prognosis for her
    likely recovery or lack thereof. There was no disagreement among the experts
    that the appellants injuries were soft tissue in nature. Nor was there serious
    disagreement that her symptoms had improved over time.

[20]

By
    the time of trial in April and May, 2014 the significant continuing disabling
    symptoms described by the appellant were the pain in her neck, mid-back area
    between the scapula, jaw pain and headaches, all of which were exacerbated by
    the physical demands of her work.

[21]

Dr.
    Anton and Dr. Panagiotopoulos, a physiatrist and an orthopedic surgeon
    respectively, were of the view that improvement in the appellants symptoms had
    likely plateaued. Their prognosis for any further improvement in the future was
    guarded.

[22]

The
    evidence was clear that from the time of the accident to trial there had been
    significant improvements in the appellants condition, but certainly Drs. Anton
    and Panagiotopoulos were not optimistic about further improvement. Dr. Panagiotopoulos
    noted that [a]t best she will hopefully be able to control her symptoms with
    ongoing treatments and medications in future. Dr. Anton had no doubt that the
    postural demands of [the appellants] work exacerbated her pain when she
    finally returned to work. In his opinion, the repetitive, sustained postures that
    the appellant was required to assume by the very nature of her work as a
    dentist continued to exacerbate her pain.

[23]

Dr.
    Lancer Rucker is a dentist with highly specialized expertise in ergonomics as
    it relates to the practice of dentistry. Dr. Anton in his evidence stated that
    ergonomics, in his view, was the only real intervention that might improve the
    appellants tolerance for clinical dentistry work. He could think of nothing
    that might help her other than what Dr. Rucker might suggest.

[24]

The
    appellant saw Dr. Rucker on several occasions. He conducted an ergonomic
    practice assessment to determine the contribution of problematic clinical ergonomics
    to the appellants impairments and the potential role of ergonomic training in
    helping her return to work.

[25]

Dr.
    Rucker did not testify at trial but his report dated April 28, 2009 was filed
    in evidence. He outlined the difficulties that the appellant reported to him.
    He observed the appellant perform a variety of procedures and noted that her
    levels of ergonomic self-awareness and sophistication were quite limited,
    which is about average compared to most recent dental graduates. In his
    clinical observations, he explained that:

These errors are common among dentists and dental hygienists,
    but are associated with increased risks of musculoskeletal pain, even in
    individuals who have not experienced the trauma of [a motor vehicle accident].
    Given the circumstances and symptom patterns reported by Dr. Fonseca, her
    level of ergonomic sophistication becomes critical so that such profile
    elements must be completely eliminated if she is to comfortably return to full
    clinical practice.

[26]

And
    in the comment section of the report he noted:

Dr. Hirschs report suggests that he has ruled out ongoing
    contributions from most underlying systemic and structural problems (with the
    exception of the TMJ damage), and he expressed some confidence that
    Dr. Fonsecas physical resilience will gradually be fully recovered. If
    that is an accurate assessment, then I am all the more concerned that her
    current ongoing symptom pattern indicates a critical need for her to learn how
    to work without ergonomic compromise so that the healing process will not be
    impeded or reversed.

[27]

Dr.
    Rucker recommended sessions in the appellants workplace both to optimize the
    clinical equipment layout as well as to teach the appellant new ways to
    operate clinically which reduce or eliminate her current postural and
    positional compromises.

[28]

He
    concluded:

Although I am optimistic that Dr. Fonseca should be able to
    achieve comfortable full-time practice, it can only be
after
her
    ergonomic IQ has been maximized in an optimized clinical setting will we be able
    to determine how much residual compromise, if any, may have resulted from the
    tissue damage of the MVA injuries.

[29]

The
    appellants evidence was that she followed up with Dr. Rucker and had several
    sessions with him. She then contacted him by email to postpone subsequently scheduled
    sessions and thereafter spoke with him by telephone. She explained that other
    than providing her with some videos to watch and implement in her practice, Dr.
    Rucker said he had nothing more to offer her. The sessions were cancelled. As I
    have said, Dr. Rucker did not testify at trial; only his April 2009 report was
    filed.

[30]

Dr.
    Parkinson, the biomechanical expert called by the appellant, reinforced Dr. Ruckers
    evidence in relation to the postures routinely adopted by dentists in their
    work. He explained that, based on one research study discussed in his report,
    65 per cent of dentists had neck and shoulder problems while 59 per cent had
    lower back problems  regardless of whether they were involved in an automobile
    accident.

[31]

Dr.
    Chris Boulias, a physiatrist, was called by the respondents. He testified that
    soft tissue injuries do not get worse but that they get better over time. In
    his expert opinion, there was no contraindication preventing the appellant from
    pursuing her pre-accident career plans. He encouraged her to regularly and
    consistently perform core strengthening and stretching exercises. His prognosis
    for further improvement in her injuries was positive. Like Dr. Panagiotopoulos,
    he only saw the appellant on one occasion.

[32]

Dr.
    Hamm, a specialist in occupational medicine, also saw the appellant on one
    occasion, in April 2009. He testified that her jaw condition and headaches had
    improved since the accident but, at that time, the appellant had not yet reached
    maximum medical improvement. He said, however, that the appellant had described
    substantial improvement since the accident which suggested that she would
    likely make further gains in her symptoms and functionality with continuing
    rehabilitation.

[33]

With
    the possible exception of Dr. Blasberg, none of the expert medical witnesses
    were the appellants treating doctors. They were either retained by counsel for
    the appellant or the respondents to provide an opinion for the litigation, or
    were retained on behalf of a third party insurer.
[3]
Although the appellant gave evidence about regular visits to a family doctor
    she had been seeing consistently from the time of the accident to the time of
    trial, that doctor neither testified nor was any report of her evidence filed.

[34]

The
    jury was left with a series of snapshots as it were, in relation to the
    various medical professionals assessments of her symptoms and prognoses for
    further recovery. There was no evidence from one or more of the doctors who saw
    her continuously over time. The jury had to deal with what it had in terms of
    evidence and decide what it would accept and what it would not.

[35]

On
    the whole of the evidence there was a divide in the medical opinions. Some of
    the medical professionals were of the view that the appellants condition was
    unlikely to improve in the future and it was unlikely that she would be able to
    resume a full time clinical practice. Others were of the view that soft tissue
    injuries improve over time and that there was nothing preventing the appellant from
    resuming a full time clinical practice provided that she maximized her
    ergonomic IQ and worked in an optimized clinical setting. It was open to
    this jury to accept the evidence of Drs. Rucker and Boulias on this point.

[36]

It
    was equally open to them on this record to find that the appellant had suffered
    income losses in accordance with Dr. Houses calculations up to the time of
    trial, but that she should, within a short time, be able to earn the equivalent
    of a general practice dentist working full time in a clinical setting.

[37]

Dr.
    House calculated the appellants past and future income loss based on three
    different assumptions. These were that, but for her injuries, she would have
    gone on to work as a general practice dentist, a specialist in pediatric
    dentistry, or an oral surgeon. In his testimony, he gave an opinion as to the
    appropriate past and future income loss awards depending on which assumption
    the jury accepted.

[38]

It
    is clear, in my view, that this jury did not accept that the appellant would
    have specialized in either pediatric dentistry or oral surgery. And in this
    court the appellant takes no real issue with that finding, which is apparent on
    the awards they did make.

[39]

The
    jury awarded $584,187 for past lost income. While not the precise figure that
    Dr. House calculated based on the assumption that the appellant would have
    worked as a full time general practice dentist, it is very close.

[40]

The
    appellants earnings for the years from the time of the accident to the time of
    trial were before the jury. In the six years following the accident her annual
    income had increased from $49,887 in the year of the accident to a high of
    $234,457 in 2013. Her income was lower in 2014 because of the loss of her
    administrative position at the University of British Columbia and the fact that
    the trial was taking place in April and May 2014.

[41]

In
    my view, it is not inconsistent for the jury to have awarded the full past
    income loss amount that the appellant claimed but only a relatively smaller sum
    for future income loss. The jury was clearly satisfied that while the appellant
    had suffered a compensable income loss to the date of trial, based on the
    evidence they accepted, she could either resume a full time clinical practice
    or earn an equivalent income in the very near future.

[42]

The
    jurys award for future income loss was significantly less than the plaintiff
    had claimed  so too was their award for future health care costs. While the
    appellants counsel did not suggest a figure for future health care costs to
    the jury, it was plain on the evidence that her ongoing expenses for
    kinesiology, massage therapy, and botox injections alone over the course of her
    working life would well exceed the $27,450 that the jury awarded.

[43]

Similarly,
    the appellant in her Amended Statement of Claim sought $14,000,000 in damages. On
    Dr. Houses evidence the numbers for future income loss alone ranged from a low
    of about $6,000,000 to a high of about $18,000,000 depending on whether the
    appellant specialized or remained a general dentist. The jury clearly rejected
    any amount approaching the sum claimed for future income loss.

[44]

The
    appellants argument is similar to the argument made in
Koukounakis
. On her cross-appeal in that case the plaintiff
    submitted that the jury, having found that she would incur future care
    expenses, had no choice on the evidence but to award the full amount claimed by
    her.
Doherty J.A. dismissed the cross-appeal and observed, at p. 314:

I do not accept the contention that the evidence was reasonably
    capable of supporting only one view of [the plaintiffs] future medical costs.
    As with any evaluation of future expenses, a number of variables were at play
    and different opinions were advanced by various witnesses depending on those
    variables. The jury was not obligated to accept any one view of that evidence.
    Their assessment is not unreasonable.

I also reject the submission that because the jury awarded the
    full amount claimed for past medical expenses, consistency demanded that the
    jury do the same with respect to a claim for future care costs. The two heads
    of damages are distinct and an award made under one head of damage does not
    necessarily bear any relationship to an award made under another.

[45]

For
    these reasons, I am not persuaded that there is any inconsistency in the amount
    the jury in the present case awarded for future income loss when compared with
    the amounts it awarded on the other heads of damage. I would reject the
    appellants submission to the contrary. In my view, there was evidence that
    supported the jurys verdict and it should not be set aside even though other
    conclusions were also available on the evidence.

Issue #2  The Propriety of
    Communications between Counsel and Expert

[46]

The
    trial judge in this case was in a difficult position. The trial decision in
Moore
    v. Getahun
, 2014 ONSC 237, had been released but the appeal to this court
    had not yet been argued.

[47]

The
    relevant issue in
Moore
was the propriety of counsel reviewing the draft
    report of an expert witness who had been retained to provide an opinion. The
    trial judge in that case had strongly disapproved of the practice of counsel
    reviewing draft expert reports.

[48]

This
    court ultimately dismissed the appeal in
Moore v. Getahun
, 2015 ONCA
    443, leave to appeal to S.C.C. refused, 2015 CarswellOnt 14066, but not without
    correcting the trial judges stance on this issue. At para. 66 of this courts
    reasons, Sharpe J.A. wrote, I reject the trial judges proclamation that the
    practice of consultation between counsel and expert witnesses to review draft
    reports must end. Sharpe J.A. was, however, of the view that the trial judges
    criticism of counsel on that basis did not affect the outcome of the trial.

[49]

The
    issue in the present case relates to the propriety of discussions between
    counsel and an expert witness
before
the expert had prepared his report.
    At trial, the respondents repeatedly took the position that such conduct was
    highly improper. The clear innuendo being that if such communications had
    occurred, counsel had influenced the experts opinion.

[50]

On
    appeal, the appellant submits that the trial judge erred by failing to instruct
    the jury that such communications were not a proper basis upon which to reject
    an experts testimony. They say that the trial judges failure to correct respondents
    counsels erroneous approach to the issue amounts to a legal error.

[51]

I
    am sympathetic to the appellants position. Respondents counsels line of
    questioning was undoubtedly improper in light of this courts decision in
Moore
.
    It should not have been permitted. It is also clear from the record, however,
    that counsel for both parties ultimately agreed to the contents of the trial
    judges charge on this issue. Therefore, for the reasons that follow, I would
    dismiss this ground of appeal.

The Trial Proceedings

[52]

The
    appellants expert Dr. Anton was cross-examined in relation to any discussions he
    may have had with appellants counsel before he prepared his report. He was
    taken to the retainer letter he had received from the appellants lawyer, Mr.
    Gibson, and specifically the request that he contact the lawyer before writing
    his report. When asked about the request, Dr. Anton responded that such a
    request was not typical. The doctor was satisfied that having been requested to
    contact counsel, he would have done so. He was unable to recall the details of
    the conversation and had no notes of it.

[53]

Dr.
    Anton was then asked if he had signed a Form 53, Acknowledgment of Experts
    Duty certifying that his opinion was fair, objective and non-partisan. Dr. Anton
    said that he had signed the form and was aware of his duty. He was then asked:

Q.      All right. Now, Doctor, and this is no criticism of
    you, because you were asked to do it, and you did it, but do you think youre
    being fair, objective and nonpartisan when youre discussing your opinion with
    the lawyer who hires you before you write your report? Do you think thats fair
    and nonpartisan and objective?

A.      I believe it is, if, if the discussion doesnt affect
    my report.

Q.      But you dont know what the discussion was, do you?

A.      No. But I can assure you, Ive had many discussions
    with lawyers, and I do not let those discussions affect my opinion. Further, in
    British Columbia, its an absolute requirement that (an) experts first duty is
    to the court. And I must certify that. And I do that regularly. And I take that
    very seriously.

Q.      Well ... .

A.      And my duty here, I believe, is also to serve the
    court. And so I am attempting to do that with my reports and my testimony.

Q.      Well, but, Doctor, here in Ontario, we dont have
    lawyers writing to doctors and saying I want to talk to you about your opinion
    before you commit it to writing.

A.      Mm-hmm. Well, in British Columbia, that is not an
    unusual practice. Its not standard, but its not rare. And, in fact, it seems
    to be occurring more often.

[54]

The
    same type of questioning was repeated in relation to a second report that Dr.
    Anton had prepared. Appellants counsel objected but the trial judge deferred
    the issue. Meanwhile, respondents counsel returned to the theory in his
    closing address:

Mr. Gibson was insistent upon speaking to Dr. Anton before he
    authored any report. Leaving aside the issue of whether or not thats
    appropriate, you should be asking yourself what was Mr. Gibson so afraid of?
    What did he not want Dr. Anton to say before he came to this court, before he
    authored a report? All I can assume is he was afraid the evidence was not going
    to be helpful.

[55]

Ultimately,
    this issue was dealt with as part of counsels submissions on the jury charge. Counsel
    for the appellant at the time (not Mr. Hutchison) took the position that his
    discussions with Dr. Anton were perfectly proper, that he had done nothing
    wrong and the trial judge should instruct the jury accordingly. The respondents
    argued, on the basis of the trial decision in
Moore
,

that such discussions were
    entirely improper. Respondents counsel said that he was within the law to
    argue that position to the jury to the point of suggesting that Mr. Gibson
    and Dr. Anton had something to hide. There of course was simply no evidence
    whatsoever to support the respondents position  the only evidence on point
    was that of Dr. Anton and he flatly denied it.

[56]

The
    trial judge was in a difficult spot in terms of how to charge the jury and
    attempted to find a middle ground with counsel. She asked them to try to reach
    an agreement about what she should say to the jury in light of their
    disagreement on this point. Counsel agreed. The trial judges charge on the
    issue was as follows in relation to Dr. Anton:

He does about 140 medical/legal cases a year. He has done 15 to
    20 per year for the last 5 to 10 years at the request of Mr. Gibsons firm.

He said Mr. Gibsons request to contact him before the report,
    both the first and second, is not typical, but it happens often that lawyers
    request this. He has no notes of what he and Mr. Gibson discussed. He said any
    discussions would not affect his report. His first duty is to the court and he
    certifies that duty to the court.

He said in B.C. this is not usual and not rare. It is occurring
    more often. It is not standard, but not rare. He does not recall any issue
    raised that made him uncomfortable or made him feel coerced or persuaded or in
    any way that anything inappropriate had been said. The conversations are not
    referred to in his reports. Dr. Anton said the conversations did not
    affect his opinion or his duty to the court to be objective.



He did not change his medical opinions because of his
    conversations with Mr. Gibson. Mr. Gibson has never tried to get Dr. Anton to
    alter his opinion on any case. Dr. Anton has testified between 100 and 150
    times in British Columbia. He always tries to act ethically and impartially.

On the matter of the discussions between Mr. Gibson and Dr.
    Anton before Dr. Anton authored his reports, they were engaging in the practice
    which is apparently done occasionally but not rarely, in the Province of
    British Columbia.

[57]

It
    is clear from the record that the trial judge in this part of her charge used
    the language that counsel had agreed she should on this point. She confirmed
    the fact of their agreement during counsels submissions on the jury charge. She
    first asked counsel to draft something that you agree to in a manner that

makes it clear that we dont want to enter into a debate about
    what the practice is in Ontario or how the practice differs in B.C. from
    Ontario, but that  [Dr. Anton] and Mr. Gibson were doing what appears to be
    not usual, but not rare in British Columbia. And its for them to decide whether
    that has any impact on the decision.

[58]

Mr.
    Kirby said he was content with words to that effect and Mr. Gibson said,
    [w]ith respect to the charge, yes, thats fine. The trial judge then asked
    counsel to work together and agree on the wording over the lunch hour. Near the
    end of the same day, she confirmed counsels agreement:

THE COURT: So this clause that you came up with, with respect
    to Dr. Anton that I understand you both agreed to, was the suggestion that I
    would put that after Dr. Antons testimony, insert it there?

MR. KIRBY:  I would think that would make the most sense.

[59]

Appellants
    trial counsel made no further objections on this issue, nor did they object
    after the charge was given to the jury.

The Parties Positions on Appeal

[60]

Notwithstanding
    counsels agreement on the jury charge, the appellant submits that the trial
    judges failure to correct respondents counsels improper approach to this
    issue amounted to a legal error. She says that the trial judge erred by failing
    to instruct the jury that they could not rely upon the discussions between Mr.
    Gibson and Dr. Anton as a basis for rejecting Dr. Antons evidence.

[61]

The
    appellant further submits that this error may have led to the jurys
    inconsistent verdict. Mr. Kirby, in his closing address, put to the jury the
    direct link between Dr. Antons evidence and the appellants claim for future
    income loss. Dr. Antons evidence was crucial to demonstrating the appellants
    ongoing impairment and was in direct opposition to that of Dr. Boulias. The
    importance of a fair adjudication of their competing views cannot be
    overstated.

[62]

The
    respondents seek to distinguish this courts decision in
Moore
and
    confine it to its own facts. They say that
Moore
indicates it is
    acceptable for counsel to review an experts draft report before delivering the
    final report. By contrast, it is improper for counsel to communicate with an
    expert
before
any report was prepared or the plaintiff was assessed.
    Cross-examination on such communications is permitted in the limited factual
    circumstances of this case. In any event, counsels failure to object to the
    charge is fatal to the appellants argument on appeal that it was flawed.

Analysis

[63]

In
    my view, the respondents submission that the circumstances of this case are
    distinguishable from those in
Moore
is without merit. As this court
    explained at para. 55 of
Moore
:

While some judges have expressed concern that the impartiality
    of expert evidence may be tainted by discussions with counsel  , banning
    undocumented discussions between counsel and expert witnesses or mandating
    disclosures of all written communications is unsupported by and contrary to
    existing authority: see
Maras v. Seemore Entertainment Ltd
., 2014 BCSC
    1109, [2014] B.C.W.L.D. 4470 at para. 90 ([c]ounsel have a role in assisting
    experts to provide a report that satisfies the criteria of admissibility);
Surrey
    Credit Union v. Willson
(1990), 45 B.C.L.R. (2d) 310 (S.C.) at para. 25 ([t]here
    can be no criticism of counsel assisting an expert witness in the preparation
    of giving evidence). In
Medimmune Ltd. v. Novartis Pharmaceuticals UK Ltd.
    v. Anor
, [2011] EWHC 1669 (Pat.) the court pointed out, at para. 110, that
    in some highly technical areas such as patent law, expert witnesses require a
    high level of instruction by the lawyers which may necessitate a high degree
    of consultation involving an iterative process through a number of drafts.

[64]

The
    court then went on to review what I might call the built-in safeguards of the
    adversarial system that protect against the mischief alluded to by the
    respondents in their cross-examination of Dr. Anton. I say alluded to because
    counsel never did address the issue head-on and ask the Doctor directly whether
    his opinion had been in any way influenced by his discussions with appellants
    counsel.

[65]

First,
    the court noted that the ethical and professional standards that govern the
    legal profession forbid counsel from engaging in practices likely to interfere
    with the independence and objectivity of expert witnesses. Second, the ethical
    standards of other professional bodies place an obligation on their own members
    to be independent and impartial when giving expert evidence. Third, at para. 61,
    the court noted that:

the adversarial process, particularly through
    cross-examination, provides an effective tool to deal with cases where there is
    an air of reality to the suggestion that counsel improperly influenced an
    expert witness. Judges have not shied away from rejecting or limiting the
    weight to be given to the evidence of an expert witness where there is evidence
    of a lack of independence or impartiality.

[66]

And
    in the present case there was no evidence of any lack of independence or lack
    of objectivity on the part of Dr. Anton. Mr. Kirby was on a fishing expedition
    asking questions that on the facts of the case he had no business asking. They
    were improper and should not have been permitted.

[67]

That
    said, Dr. Anton handled himself well in the circumstances. When counsel asked
    him a similar series of questions in relation to a second report that he prepared
    on behalf of the appellant, and whether he thought it fair, and objective, and
    nonpartisan to have these secret discussions with plaintiffs counsel before
    you write a report? he responded:

Firstly, the discussions I would characterize as privileged,
    not secret. Second, its not usual, but its not a rare practice. Third, those
    discussions do not affect my opinion. And I stand by the opinions in my report
    and my ability to try to be objective and serve the court in the way that I am
    required to do.

[68]

In
Moore
,
at para. 78,
    this court said:

Absent a factual foundation to support a reasonable suspicion
    that counsel improperly influenced the expert, a party should not be allowed to
    demand production of draft reports or notes of interactions between counsel and
    an expert witness. Evidence of an hour and a half conference call plainly does
    not meet the threshold of constituting a factual foundation for an allegation
    of improper influence.

[69]

Similarly
    here, a mere request from counsel to speak to the expert witness either before the
    expert sees the client or writes a report does not alone meet the threshold for
    an allegation of improper influence  which was exactly the impression counsel
    for the respondents was attempting to make with this jury.

[70]

On
    the facts of this case and in light of this courts decision in
Moore
, it
    is clear that the questions Mr. Kirby asked should not have been permitted.

[71]

But
    that is not dispositive of this ground of appeal. The appellants submission is
    that the trial judge erred by failing to instruct the jury that any pretrial
    communications between appellants counsel and Dr. Anton was no basis for them
    to reject his evidence.

[72]

In
    light of counsels agreement on this point, it is difficult to fault the trial
    judge for doing exactly what counsel had agreed she should do. It is not surprising
    that in light of their agreement, there was no objection to the charge on this
    point. And as pointed out by Simmons J.A. in
Westerhof v. Gee Estate
,

2015 ONCA 206, at para. 177,
    leave to appeal to S.C.C. refused, 2015 CarswellOnt 16499:

In the context of a civil jury trial, failure to object to the
    charge, particularly in a case involving non-direction, will often be fatal to
    any subsequent claim that the charge was flawed:
Marshall v. Watson Wyatt
    & Co.
(2002), 57 O.R. (3d) 813 (C.A.), at para.15.

[73]

Appellate
    courts are justifiably unsympathetic to objections to a charge made for the
    first time on appeal. As Laskin J.A. noted in
Boucher v. Wal-Mart Canada
    Corp.
, 2014 ONCA 419, at para. 47, [t]hat must be especially so when
    counsel have been given the opportunity to consider and comment on the charge
    in advance. That is precisely what happened here.

[74]

In
    my view, it is not appropriate for counsel to take a position below, make an
    agreement with the court and then to resile from that position in this court.

[75]

Counsel
    for the appellant, rather than agree, ought to have maintained the objection to
    Mr. Kirbys questioning and requested, as he did originally, that the jury be
    charged to the effect that there was nothing whatsoever improper about the
    discussions he had had with Dr. Anton. He did not maintain that objection and
    instead agreed to the language that the trial judge ultimately used. I would
    dismiss this ground of appeal on this basis.

[76]

However,
    with that said, I am not persuaded that the jury rejected Dr. Antons
    evidence in its entirety. Both Dr. Anton and Dr. Panagiotopoulos opined to the
    effect that while the appellants symptomology had improved since the accident
    her condition was ongoing. In their opinion, her prognosis for further
    improvement was poor. This jury clearly accepted that the appellant had an
    ongoing disability that prevented her from performing at the level of a full
    time general practice dentist to the time of trial. Dr. Bouliass evidence for
    the respondents was to the effect that in August 2011 there was nothing preventing
    the appellant from pursuing her pre-accident career plans. The jurys past
    income loss award clearly indicates that they rejected that evidence.

[77]

Simply
    because the jury did not accept all of Dr. Antons evidence is not a sufficient
    basis to submit that it rejected his evidence. And even if it had, there was
    still the evidence of Dr. Panagiotopoulos, the orthopedic surgeon and the
    doctor who had most recently examined the appellant before trial, whose opinion
    was to the same effect as Dr. Antons.

[78]

This
    jury simply did not accept that the appellants level of disability, going
    forward, would preclude her from engaging in a full time clinical practice or
    other employment that would earn an equivalent income.

[79]

Some
    of the evidence this jury had before it was:

·

The appellant was a 35-year-old woman who had earned almost $235,000.00
    in the year before the trial;

·

She had suffered only soft tissue injuries in a motor vehicle
    accident  soft tissue injuries which generally get better over time;

·

She had made significant improvements in her injuries over the
    six years since the accident;

·

Some of the experts said she would continue to make further
    improvements with continued treatment and exercise;

·

One doctor testified that there was no contraindication
    preventing her from pursuing her pre-accident career plans in private practice
    or pediatric dentistry; and

·

Not unimportantly, one study discussed in an experts report had
    shown that 65 per cent of dentists suffered neck and shoulder complaints and 59
    per cent low back complaints regardless of whether they had been involved in a
    motor vehicle accident.

[80]

On
    this evidence, in my view, this jury was entitled to find that after allowing
    for some time to find a new job there was nothing to preclude the appellant
    from gainful employment equivalent to what she would have had absent the
    accident.

[81]

For
    these reasons, I would dismiss the appeal.

THE CROSS-APPEAL

Issue #1  The Respondents Offer to Settle

[82]

The
    respondents seek leave to appeal the trial judges costs award. They argue that
    the trial judge erred in principle when she awarded the appellant her partial
    indemnity costs of the entire proceeding. Instead, she should have given effect
    to rule 49.10 and awarded the appellant her partial indemnity costs to the date
    of the respondents offer to settle and awarded the respondents their partial
    indemnity costs thereafter.

[83]

On
    March 21, 2014, the respondents served an offer to settle on the appellant. The
    terms of that offer are set out at para. 7 of the trial judges costs
    endorsement, dated March 2, 2015:

1. The Defendants withdraw all previous
    offers to settle;

2. Payment to the Plaintiff of the sum
    of One Million Dollars ($1,000,000.00) for all damages and pre-judgment
    interest;

3. Payment to the plaintiff of her
    costs on a partial indemnity basis, to the date of this offer, to be agreed
    upon or assessed; and

4. This offer to settle shall remain
    open for acceptance until one minute after the commencement of the trial herein
    and shall, thereafter, be withdrawn.

[84]

The
    appellant recovered a judgment for $490,079 inclusive of prejudgment interest. The
    judgment was clearly less favourable than the respondents March 21, 2014 offer
    to settle.

[85]

The
    trial here commenced on March 31, 2014 and evidence began on April 2, 2014. On
    April 3, 2014 the respondents moved for a mistrial and on April 4, 2014 their
    motion succeeded and a mistrial was declared. The second jury trial began on
    April 14, 2014.

[86]

As
    the trial judge put it, the issue before her was:

whether the offer expired one minute after the commencement of
    the initial trial and therefore was not open for acceptance by the Plaintiff after
    that point in time and specifically had expired before the commencement of the
    second trial.

[87]

The
    trial judge concluded that the respondents offer had by its terms expired one
    minute after the evidence began in the trial that was ultimately declared a
    mistrial and that it remained expired thereafter. As she noted at para. 13
    of her reasons, after discussing the terms of the offer and rule 49.04(3),
    which deems an offer withdrawn in certain circumstances:

The March 21, 2014 offer to settle was not therefore open for
    acceptance between the time the mistrial was granted and the second
    commencement of the trial on April 14, 2014.

[88]

The
    respondents essential argument is that the appellant should not be able to
    avoid the costs consequences of an offer to settle through her own counsels
    misconduct, which caused the mistrial.

[89]

I
    reject this submission. The first point is that there was no misconduct on the
    part of appellants counsel  at its highest it was a matter of inadvertence.
    One of the lawyers representing the appellant had agreed with respondents
    counsel that the late timing of the respondents admission of liability would
    not be mentioned before the jury. Obviously, as it turned out, the fact of that
    agreement had not been shared with the appellant nor with her co-counsel. In
    response to a question that her co-counsel asked during examination in chief,
    the appellant remarked that up until a week before trial the respondents had
    blamed her for causing the accident. It was this response that resulted in the
    mistrial. I do not accept the submission that the appellant gets any
    advantage as Mr. Kirby phrases it from the fact of the mistrial.

[90]

It
    was the respondents choice of language that was used in the offer to settle.
    The trial judge in considering this issue followed the weight of judicial
    authority on this point. She relied upon and followed
Denison v. M. Loeb
    Ltd
. (1993), 16 O.R. (3d) 130 (Gen. Div.) at p. 133:

In this case, the plaintiff presented evidence through
    witnesses, in support of his case during three days prior to the trial being
    declared a mistrial. The fact that the trial was declared a mistrial does not,
    in my opinion, mean that the time in which the offer was available for
    acceptance and which expired when the hearing began, reopened or was extended.
    It seems only fair and just to me to hold that an offer left open until the
    beginning of the presentation of the case, became unavailable for acceptance
    once the case began to be presented, and remained unavailable thereafter.

Accordingly, the offer made by the Plaintiff in this case was
    not available for acceptance once the trial began in February of this year and
    the fact that what was a trial when it started turned out to be no trial at
    all, does not revitalize or extend the offer because the circumstances intended
    for the duration of its availability had passed.

[91]

As
    the trial judge noted
Denison
was followed in
Keays v. Honda
    Canada Inc.
(2006), 48 C.C.E.L. (3d) 86 (Ont. S.C.), and although
Keays
went all the way to the Supreme Court of Canada it did so on other issues: see
    2008 SCC 39, reversing in part (2006), 82 O.R. (3d) 161 (C.A.). This point was
    not the subject of those further appeals.

[92]

In
    my view, the trial judge committed no error when she concluded that rule 49.10(2)
    was of no application in the circumstances. The respondents offer had expired
    before the second trial began.

[93]

Before
    this court the respondents also disputed the quantum of costs awarded. They argued
    that the trial judge failed to take a holistic approach to the determination
    of costs as explained in this courts decision in
König v. Hobza
,
2015 ONCA 885, at para. 35. A fair
    reading of the costs endorsement does not bear this argument out. The trial
    judge considered the offers that had been made by both sides. She noted that
    the respondents offers were much closer than the appellants to the actual
    amounts found by the jury. She considered the nature of the case, the
    complexity of the issues and the time factors required.

[94]

The
    appellant had sought partial indemnity costs in the amount of $353,936.04
    inclusive of HST for fees only. The trial judge first reduced this amount by
    some $53,000 to reflect a partial indemnity rate of $200 per hour for one of
    the appellants co-counsel rather than the $330 that had been claimed. Apparently,
    the appellant conceded that this reduction was appropriate.

[95]

The
    trial judge considered that the appellant had recovered just under $500,000 
    an amount significantly less than she had claimed. She noted that it was the
    appellants future income loss award that fell significantly short of her claim.
    She fixed the appellants partial indemnity costs for this seventeen-day trial
    at $275,000 inclusive of fees and applicable taxes. In my view, this figure was
    appropriate in all the circumstances of this case. While other cases are
    helpful for the principles they establish, it is necessary in the application
    of those principles to consider each case on its own unique set of facts.

[96]

The
    facts here are unlike those in
Elbakhiet v. Palmer
,
2014 ONCA 544, leave to appeal refused,
    [2014] S.C.C.A. No. 427, where the jury had awarded damages of $145,000, yet
    the trial judge fixed the plaintiffs partial indemnity costs at almost
    $580,000. In
Elbakhiet
the trial judge erred in principle by failing to
    consider rule 49.13 and awarding costs wholly disproportionate to the amounts
    recovered in the proceeding. The trial judge here considered rule 49.13. She
    considered the amount claimed and the amount recovered in the proceeding"
    as rule 57.01(1)(a) requires. In my view, the award in this case is fair and
    reasonable and is not wholly disproportionate to the amount recovered.

[97]

For
    these reasons, the respondents have failed to demonstrate that there are strong
    grounds upon which this court could find that the trial judge erred in
    exercising her discretion: see
Brad-Jay Investments Ltd. v. Szijjarto
(2006), 218 O.A.C. 315, at para. 21, leave to appeal refused, [2007] S.C.C.A.
    No. 92. Accordingly, I would decline to grant the respondents request for
    leave to appeal the costs award.

Issue #2  The Assignment of Collateral
    and Statutory Accident Benefits

[98]

The
    respondents submit that the trial judge erred in limiting their entitlement to
    an assignment of collateral and statutory accident benefits.

[99]

In
    an endorsement dated March 2, 2015, the trial judge held that the appellant
    shall hold in trust and remit to the Manitoba Insurance Commission (the
    respondents insurer) for a period of one year only following the date of
    judgment, the following:

·

Income benefits received from Great West Life up to a maximum of
    $112,496 (the amount of the future income loss award); and

·

Statutory accident benefits for health care expenses, expressly limited
    to those treatment modalities mentioned specifically in the trial judges
    charge to the jury, up to a maximum of $27,450.

[100]

By way of
    background, despite the respondents arguments to the contrary during
    pre-charge submissions, the trial judge permitted the question of an award for future
    health care costs to go to the jury.

[101]

While there
    might have been better evidence called in relation to this claim, the trial
    judge reasoned that Exhibit 4, which was an exhaustive list of all the out‑of-pocket
    expenses the appellant claimed as the result of the accident to the date of
    trial, was some indication of what might be incurred in future. She also noted
    that the jury had evidence from the appellant herself as to her current
    treatments, including massage, kinesiology sessions and Botox injections. In
    terms of the necessity of the treatments, the jury also had the evidence of
    various expert witnesses. On this basis the trial judge permitted the question
    to go to the jury and the jury awarded $27,450 for future health care costs.

[102]

Section 267.8(9)
    of the
Insurance Act
, R.S.O. 1990, c. I.8, provides that a plaintiff who
    recovers damages for loss of income or for expenses that will be incurred for
    health care shall hold in trust for the defendants [a]ll payments in respect
    of the incident that the plaintiff receives after the trial of the action for
    loss of income under the laws of any jurisdiction or under any income
    continuation benefit plan and for statutory accident benefits in respect of
    expenses for health care.

[103]

Exhibit 4 was an
    exhaustive list and contained numerous health care costs claims. Yet the trial
    judge limited the trust and assignment of statutory accident benefits to only
    four specific types of services: kinesiology sessions, massage, medications
    (including Botox injections), and bite plate replacements. The jury awarded a
    lump sum only and did not break down its award in any way. The trial judge
    reasoned that as these four items were the only claims she had referenced in
    her charge it was logical that these would be the costs the jury considered in
    making their award.

[104]

A defendants
    right to an assignment of future collateral benefits received by a plaintiff is
    available only if they cover the same expenses for which the defendant has been
    ordered to pay damages to the plaintiff. In arriving at her decision regarding
    the trust and assignment, the trial judge relied on the trial decision in
Gilbert
    v. South
, 2014 ONSC 3485, which this court recently affirmed: 2015 ONCA
    712. In this court Laskin J.A. held, at para. 44, that a defendant can only
    obtain an assignment of a plaintiffs future benefits if both of the following
    criteria are met:

1)

The jurys award mirrors the collateral benefit sought to be assigned;
    and

2)

There is no uncertainty about the plaintiffs entitlement to these
    collateral benefits.

[105]

In
Gilbert
,
    uncertainty about the extent of overlap between the plaintiffs entitlement to
    accident benefits and the jurys global award for future care costs meant that
    the defendant had not met its onus to establish entitlement to an assignment.
    This is the same reason that the trial judge here declined to extend the assignment
    and trust to future health care costs not enumerated in her charge to the jury.
    To do otherwise would be to engage in speculation.

[106]

In this court
    the respondents did not press their similar argument in relation to the loss of
    future earnings claim. The dispute centered on whether the assignment/trust
    should be temporally limited or not. The respondents urged that it not be
    limited in terms of time but only by the amount awarded.

[107]

The trial judge
    rejected the respondents position at paras. 34 and 35 of her reasons as
    follows:

The Defendants argue that the Plaintiffs position is too
    speculative in regards to what the jury intended and that the assignments of
    Great West Life benefits should otherwise be in place without temporal limit
    until it reaches the amount of $112,496.

In my view, in balancing the principles of double recovery and
    full indemnity it would not be just or equitable to give the Defendants an
    assignment for the next nine or ten years. I know the numbers and scenarios the
    jury had to work with. I heard all the evidence. There was no reasonable
    scenario under which the jury could have found the Plaintiff suffered a small
    monthly income loss over nine to ten years. In my view this would be more
    speculative than the Defendants position and not consistent with the numbers
    or evidence at trial. I therefore limit the assignment and trust to a period of
    twelve months past the judgment.

[108]

There is no
    error demonstrated here. In my view, this courts decision in
Gilbert
is largely dispositive of this ground of the cross-appeal and accordingly I
    would dismiss it.

Issue #3  The Prejudgment Interest Rate

[109]

Finally, the
    respondents argue that the prejudgment interest rate on the awards for past income
    loss and special damages should be at the rate prescribed by ss. 127 and 128 of
    the
Courts of Justice Act
and not at the average rate fixed by the
    trial judge. They say that no special circumstances existed that permitted the
    trial judge to deviate from the prescribed rate.

[110]

This was a
    discretionary order. As Doherty J.A. noted in
Novakovic v. Kapusniak
,
    2008 ONCA 381 at para. 44:

Trial judges sometimes average prejudgment interest rates over
    the time period between the commencement of the action and the obtaining of
    judgment. This is particularly appropriate where the prejudgment interest rates
    fluctuate widely.

[111]

Here the trial
    judge set out in her reasons why she departed from s. 127. She reasoned that
    because the appellants past income losses and special damages were incurred
    over several years and not at a single point in 2009 (when her statement of
    claim was issued), it would work an unfairness to apply the record-low interest
    rate from the third quarter of 2009 to the entire damage award. In her view
    this amounted to special circumstances within the meaning of this courts
    decision in
Agribrands Purina Canada Inc. v. Kasamekas
, 2011 ONCA 460,
for exercising her
    discretion to deviate from the prescribed rate.

[112]

I see no error in
    her discretionary order, and I would dismiss this ground of appeal.

DISPOSITION

[113]

For these
    reasons, the appeal and cross-appeal are dismissed. In these circumstances
    where success has been divided the appropriate order is no costs and I would so
    order.

Released: April 26, 2016 KMvR

J.
    MacFarland J.A.

I
    agree G.G. Gillese J.A.

I
    agree K. M. van Rensburg J.A.





[1]
The jury was asked to assess the appellants past loss of income on a 100%
    gross basis. The net amount awarded in the judgment for past loss of income was
    $164,270.98.



[2]
The respondents did not seek leave to appeal the costs order in their notice of
    cross-appeal but did so at the hearing of the appeal.



[3]
Dr. Panagiotopoulos, Dr. Donaldson, and Dr. Hamm were retained at the request
    of the appellants disability benefits provider, which was not a party to this
    litigation.


