



COURT OF APPEAL FOR ONTARIO

CITATION: Placzek v. Green, 2012
    ONCA 45

DATE: 20120126

DOCKET: C52959

Doherty, LaForme and Hoy JJ.A.

BETWEEN

Carmen Placzek

Respondent (Plaintiff)

and

Albert Green

Appellant (Defendant)

Todd J. McCarthy, for the appellant (defendant)

Barbara Legate and Sue Noorloos, for the respondent
    (plaintiff)

Heard: January 19, 2012

On appeal from the judgment of Justice H.A. Rady of the Superior
    Court of Justice, dated October 15, 2010.

ENDORSEMENT


[1]

At the end of oral argument, we advised counsel that the appeal
    would be dismissed with reasons to follow.  These are those reasons.

[2]

The respondent, Carmen Placzek, was injured in a rear end
    collision.  The appellant, Albert Green, was the driver of the vehicle that
    struck the vehicle in which the respondent was riding.  Liability, while not
    conceded, was not strongly contested.  Damages were very much in issue.

[3]

The respondent had suffered from severe fibromyalgia for many
    years prior to the accident.  The appellant argued that to the extent that the
    respondents physical problems interfered with her life after the accident,
    those problems were attributable in whole or in the main to the serious
    pre-existing condition and not to the relatively minor accident involving the
    vehicle driven by the appellant.

[4]

The trial judge struck the jury at the outset of the trial.  She
    ultimately found the appellant liable.  With respect to damages, the trial
    judge held that despite the respondents prior physical problems, the injuries
    suffered as a result of the car accident had caused significant problems for
    the respondent.  The trial judge ultimately awarded damages in the amount of
    $919,237.  A large portion of that amount went toward damages attributable to the
    lost income and lost future income claims.

[5]

There are two grounds of appeal.


I



The Decision to Discharge the Jury

[6]

As indicated above, the trial judge discharged the jury at the
    outset of the trial.  The decision to discharge a jury is a discretionary one. 
    This court will defer to the exercise of that broad discretion unless it is
    shown that the discretion was exercised on a wrong principle or that its
    exercise in the circumstances can properly be characterized as arbitrary,
    capricious or unreasonable.  Clearly, trial courts are given considerable leeway
    in exercising their discretion on this question:
Hunt v.
Sutton
(2002), 60 O.R. (3d) 665 at para. 52 (C.A.);
Cowles v. Balac
(2006), 83
    O.R. (3d) 680 at paras. 31-46 (C.A.).

[7]

The trial judge recognized that the right to trial by jury was a
    substantive one and that the respondent bore the onus of demonstrating that the
    justice of the case would be better served by the discharge of the jury.  Nor
    is it argued that the trial judge erred in making her determination prior to
    the commencement of the evidence.

[8]

We had the benefit of a careful and critical review of the trial
    judges reasons for discharging the jury.  As we read those reasons, paras. 16
    through 20 speak to the anticipated complexity of the evidence relevant to the
    damage assessment.  In the trial judges view, that complexity arose out of
    several aspects of the evidence.  First, there was the respondents
    pre-existing medical condition and the need to determine the impact of that
    condition on the respondents post-accident medical condition (paras. 16-18). 
    Second, there was competing expert evidence relating to the respondents loss
    of income and loss of future income claims.  The respondent was a self-employed
    realtor and there were several factual variables relevant to her lost income
    claims.  Those variables complicated the quantification of that claim (para.
    19).  Third, there was competing and somewhat complex medical, engineering and
    biomedical evidence (para. 20).

[9]

Based on these evidentiary complexities, the trial judge
    concluded, at para. 21:

As a result, of all of the foregoing I am satisfied that this
    case is of sufficient complexity that it is in the interest of justice that the
    jury notice be struck.

[10]

It was open to the trial judge to reach this conclusion.  While
    counsel for the appellant mounted a powerful argument in support of his
    position that this was not really a complicated case at all, we cannot describe
    the trial judges characterization of the evidentiary complexity as arbitrary,
    capricious or unreasonable.  Other judges may have reached a different
    assessment of the complexity of the evidence and declined to strike the jury.  The
    fact that other judges may have exercised their discretion differently is, of
    course, not a basis upon which this court can interfere with this trial judges
    exercise of her discretion.

[11]

The trial judge, after indicating that the evidentiary complexity
    satisfied her that the interests of justice required that the jury notice be
    struck, went on to address certain other factors which, in her view, also
    supported the exercise of her discretion in favour of striking the jury (paras.
    22-24).  We agree with counsel for the appellant that some of these
    considerations were irrelevant to the question of whether the jury should be
    struck.  For example, the trial judge speculated about the manner in which some
    of the evidence would be put before the jury and the advantages or
    disadvantages that one side or the other might have as a consequence.  This
    kind of speculation is unhelpful and had no relevance to whether the jury
    should be struck before the trial started.  Similarly, the concerns expressed
    by the trial judge about the position taken by the appellant on liability could
    not, in our view, provide any basis for striking the jury.  The determination
    of liability would not have posed any problem for a jury in this case.

[12]

The trial judge, however, made it clear in her reasons that she
    struck the jury because of the anticipated evidentiary complexity on matters
    relating to damages.  She clearly would have struck the jury without regard to
    the other factors, some of which we find to be inappropriate considerations. 
    Errors in respect of those matters did not taint the exercise of the trial
    judges discretion.

[13]

We would not interfere with the trial judges decision to strike
    the jury.


II



Damages

[14]

The appellant argues that the trial judge did not attempt to
    quantify the damages based on a critical assessment of the evidence, but
    instead simply picked a point somewhere in the middle between the various
    scenarios advanced by the parties.  We see no support for this submission in
    the record.  The trial judge decided that the respondents post-accident
    problems were attributable to the accident.  She found that as a result of the
    accident, the respondents working life was shortened and that she would work
    only part-time for part of that shortened working life.  These findings were
    available on the evidence and drove the damage calculation, especially as it
    related to the calculation of the respondents loss of income claims.

[15]

The appellant has not offered any basis upon which this court
    should interfere with the damage assessment.


III



CONCLUSION

[16]

The appeal is dismissed.  The respondent is entitled to her costs
    in the amount of $25,000, inclusive of disbursements and applicable taxes.

Doherty J.A.

H.S. LaForme J.A.

Alexandra Hoy J.A.


