



COURT OF APPEAL FOR ONTARIO

CITATION: McKnight v. Ontario (Transportation), 2019 ONCA 28

DATE: 20190118

DOCKET: C63767

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Greg McKnight

Plaintiff/Respondent

and

Her
    Majesty the Queen in Right of the Province of Ontario, represented by the
    Minister of Transportation for the Province of Ontario, City of Hamilton,

Integrated Maintenance & Operations Services Inc.,

TWD Roads Management Inc.
, John Doe and

The Dominion of Canada General Insurance
    Company

Defendants/
Appellants

Stephen Ross and Andrew Yolles, for the appellants

Christopher Morrison and Joel Cormier, for the
    respondent

Heard: January 14, 2019

On appeal from the
    judgment of Justice David L. Edwards of the Superior Court of Justice, sitting
    with a jury, dated April 19, 2017.

REASONS FOR DECISION

[1]

The appellants
raise two grounds of appeal from
    the judgment in this personal injury action. The respondent plaintiff alleged
    that as a result of a relatively minor motor vehicle accident, he suffered from
    chronic pain, anxiety and depression. The appellants argue that the damages
    awarded by the jury were excessive and that a new trial should be ordered on
    two grounds:

1.

The trial judge erred in failing to grant a
    mistrial; and

2.

The trial judge erred in allowing an amendment
    to the prayer for relief in the statement of claim following the jurys
    verdict.

Mistrial

[2]

The appellants submit that the jurys damages
    award was the product of being inflamed by the respondents complaints of
    mistreatment at the hands of their trial counsel.

[3]

The appellants took the position that many of
    the respondent plaintiffs complaints were the product of pre-accident
    psychological trauma and issues as well as stress from the litigation. During
    his cross-examination, the respondent exhibited signs of stress and complained
    that the appellants trial counsel was yelling at him and that he was asking
    about the suicide of the respondents step-father. In re-examination, he
    complained that the appellants counsel had also yelled at him and questioned
    him about his step-fathers suicide during his examination for discovery.

[4]

The trial judge ruled that evidence about what
    had transpired on the discovery was not admissible as it risked making the
    appellants counsel a witness. Subsequently, the respondents treating
    psychiatrist was asked to comment on the stress of the lawsuit and he reported
    that the respondent felt abused and mistreated by the appellants counsel. The
    treating psychiatrist trial went on to provide the opinion that defence
    counsels impugned conduct had a negative impact on the respondents
    psychological condition.

[5]

At that point, the appellants objected and asked
    the trial judge to declare a mistrial. The trial judge refused the motion,
    holding that while the evidence should not have been introduced and was
    prejudicial to the appellants, any prejudice could be cured by a mid-trial
    instruction to the jury.

[6]

The trial judge instructed the jury that
    litigation was often stressful, that litigants often have a difficult
    relationship with opposing counsel but that the details of the interactions of
    litigant and opposing counsel were not relevant to the issues the jury had to
    decide. He told the jury he had ruled that the respondents allegation that
    defence counsel had made certain comments to him was inadmissible and was to be
    totally disregarded and that the jury should not even speculate whether any
    such comments had been made. He told the jury the same thing applied to the
    treating psychiatrists testimony about what the respondent had said to him
    about opposing counsel. He told them that the history and statements of the
    respondent contained in the doctors evidence should not be considered as
    evidence in itself, but simply as the basis of the doctors diagnosis and
    treatment.

[7]

We do not accept the submission that the trial
    judge erred in law by refusing to grant a mistrial. It is well-established that
    [a] mistrial is the remedy of last resort and that the trial judges decision
    to deal with the matter by way of instruction rather than mistrial attracts
    deference in this court:
Dunk v. Kremer
, 2018
    ONCA 274 at para. 11.

[8]

The appellants did in fact raise and rely on the
    respondents reaction to his step-fathers suicide both at the discovery and at
    trial. They also contended that the respondents problems were in part at least
    the product of stress from the litigation.

[9]

The jury was appropriately cautioned that
    litigation of this nature is inherently stressful and that the relationship
    between a plaintiff and a defence counsel would often be difficult and
    stressful. The jury was also cautioned and about the use it could make of the
    objectionable evidence.  Moreover, over the course of the trial judges final
    charge, the jury was instructed several times that it was to assess the damages
    issues without sympathy or prejudice and that damages were intended to be
    compensation and not a form of retribution against the defendants.

[10]

In our view, it was well within the discretion
    of the trial judge to conclude that, in the context of this case, the
    respondents criticism of the conduct of appellants trial counsel did not rise
    to the level of causing an injustice that could only be cured by a mistrial.

[11]

We
    add that the appellants do not argue that the verdict was unreasonable.  There
    was evidence that the respondent was unemployable following the accident. The
    fact that the non-pecuniary damages award exceeded the cap and, after amendment
    by the trial judge, was at the top end of the range, does not demonstrate that
    the jury was inflamed, particularly in the light of the fact that the jurys
    pecuniary damages award was materially less than the damages requested by the
    respondent.

[12]

We therefore dismiss this ground of appeal.

Amendment to the statement of claim

[13]

The statement of claim asked for $250,000
    special damages and $750,000 general damages. The jury awarded $600,000 for
    non-pecuniary general damages; $840,000 for loss of income; $860,000 for future
    health care expenses and special damages within the limit claimed in the
    statement of claim.

[14]

The jury was not instructed on the cap for
    non-pecuniary general damages and the trial judge reduced that award to the
    then current cap, $379,153.00. The trial judge then granted the respondents
    motion to amend the statement of claim to claim damages in the amount of
    $2,079,153 to allow for judgment in the amount awarded by the jury after the
    reduction to take into account the cap.

[15]

The appellants argue that the trial judge erred
    by granting that amendment. They say they prepared for and conducted the
    litigation on the basis of the amount claimed and that they were unfairly
    prejudiced by the amendment.

[16]

We do not accept that submission. The trial
    judge, who was in the best position to assess prejudice, carefully reviewed the
    record and concluded that the appellants were fully aware of the nature and
    quality of the respondents claim and suffered no prejudice. The amendment did
    not alter the case to be met by the appellants and they failed to persuade the
    trial judge that they would have led different evidence or conducted the case
    any differently had the amendment been sought earlier.  We see no error that
    would permit us to interfere with the trial judges order to amend the
    statement of claim.

Disposition

[17]

Accordingly, the appeal is dismissed with costs
    to the respondent fixed in the agreed amount of $30,000 inclusive of disbursements
    and taxes.

Robert J. Sharpe J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.


