



COURT
    OF APPEAL FOR ONTARIO

CITATION:
Girao v.
    Cunningham, 2020 ONCA 260

DATE: 20200421

DOCKET: C63778

Lauwers, Fairburn and Zarnett
    JJ.A.

BETWEEN

Yolanda
    Girao

Plaintiff (Appellant)

and

Lynn
Cunningham
and Victor Mesta

Defendant (
Respondent
)

Yolanda Girao, acting in person

David Zuber and Michael Best, for the
    respondent

Heard: September 26, 2019

On appeal from the judgment of Justice Peter
    Cavanagh of the Superior Court of Justice, sitting with a jury, dated March 3,
    2017, from the order on the threshold motion, dated April 20, 2017, with
    reasons reported at 2017 ONSC 2452, and from the costs order, dated July 20,
    2017, with reasons reported at 2017 ONSC 4102.

Lauwers J.A.:

I.

Overview

[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 appellants 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 appellants 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), 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.

II.

The trial Context

[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 appellants 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]

Allstates
    considerable involvement in the action was largely driven by the groundless
    claim in Ms. Cunninghams 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. Allstates 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.

III.

The Positions of the
    Parties at Trial

[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
    defences position was that this was a minor motor vehicle accident not
    causally related to Ms. Giraos 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 defences statement, which the
    trial judge included in his charge to the jury:

All the experts retained by Ms. Cunningham had
    denied that Ms. Girao has sustained a permanent and serious impairment that can
    be related to the June 19, 2002 motor vehicle accident, and have provided
    opinions that Ms. Giraos depression, [temporomandibular joint] issues, chronic
    pain, and fibromyalgia claims are wholly and utterly unrelated to the accident,
    and that Ms. Girao has features of secondary gain pre-accident depression.

Even the doctors treating Ms. Girao, including
    Dr. Manohar, have provided the same psychiatric diagnosis of Ms. Girao in
    2012, of that of major depressive disorder with psychotic features in partial
    remission that she had in 2001 with Dr. Sanchez.

[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.
    Sanchezs pre-accident letter of opinion dated October 12, 2001 concerning the
    appellants 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 defences 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.

IV.

The Issues

[19]

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

1. the preparation, content, delivery and use of the so-called
    Joint Trial Brief;

2. the defences treatment of expert evidence;

3. the defences use of information about the appellants accident
    benefits insurance settlement;

4. the role of the trial judge and counsel where one party is
    self-represented.

[20]

I
    will then consider the appellants challenge of the trial judges refusal to
    strike the jury, and conclude with the threshold decision.

V.

Analysis

(1)

Issue One: The Joint Trial Brief

[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.

(a)

The Governing Principles

[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 judges 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 documents intended use:

When a document brief is tendered at trial,
    the record should reflect clearly the use the parties may make of it. Such use
    may range from the binders acting merely as a convenient repository of
    documents, each of which must be proved in the ordinary way, through an
    agreement about the authenticity of the documents, all the way to an agreement
    that the documents can be taken as proof of the truth of their contents. Absent
    an agreement by the parties on the permitted use of a document brief, the trial
    judge should make an early ruling about its 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:

[I]t is necessary for counsel to clarify to
    the court and to each other the extent to which the authenticity of each
    document in the proffered document brief is accepted. If, as is too often the
    case, counsel has not done so, it is the trial judges responsibility to get
    the requisite clarity when the documents are made exhibits, especially
    concerning a document's hearsay content.

[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.

(b)

The Principles Applied

[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
    judges approach was to simply accept all the volumes. He said, when he marked vol.
    16 as exhibit one:

[M]y assumption is for the most part, the
    documents are going to be admissible. And, rather than marking them first for
    identification and changing it, I thought I would do it the other way around.

It does not appear from the record that the trial judge
    later excluded any documents from the Brief tendered by the defence.

[30]

Dr.
    Beckers report supporting the appellants 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 appellants 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 defences 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:

1.

Are the documents, if they are not originals,
    admitted to be true copies of the originals? Are they admissible without proof
    of the original documents?

2.

Is it to be taken that all correspondence and
    other documents in the document book are admitted to have been prepared, sent
    and received on or about the dates set out in the documents, unless otherwise
    shown in evidence at the trial?

3.

Is the content of a document admitted for the
    truth of its contents, or must the truth of the contents be separately
    established in the evidence at trial?

4.

Are the parties able to introduce into evidence
    additional documents not mentioned in the document book?

5.

Are there any documents in the joint book that a
    party wishes to treat as exceptions to the general agreement on the treatment
    of the documents in the document book?

6.

Does any party object to a document in the document book, if it has
    not been prepared jointly?

[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.

(2)

Issue Two: The Use of Expert Evidence

[36]

Two
    issues concerning the use of expert evidence arose in this trial that are
    especially concerning. The first relates to the trial judges refusal to allow
    Dr. Becker to testify as to his opinion as to Ms. Giraos 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. Sanchezs 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.

(a)

The Governing Principles on
    Expert Evidence

[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:

I
    conclude that a witness with special skill, knowledge, training, or experience
    who has not been engaged by or on behalf of a party to the litigation may give
    opinion evidence for the truth of its contents without complying with rule
    53.03 where:

·

the opinion to be given is based on the
    witnesss observation of or participation in the events at issue; and

·

the witness formed the opinion to be
    given as part of the ordinary exercise of his or her skill, knowledge, training
    and experience while observing or participating in such events.

(b)

The Governing Principles Regarding the
Evidence Act

[42]

Dr.
    Sanchezs 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. Sanchezs opinion as being true. This would be to use Dr. Sanchezs
    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] 2 O.R. 438 (C.A.);
Reimer v. Thivierge
, [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:

Because these reports were tendered under s.
    35 of the
Evidence Act
,
the opinions
concerning causation
    were not admissible for the truth of their contents:
Robb Estate v.
    Canadian Red Cross Society
(2001), 152 O.A.C. 60 (Ont. C.A.), at
    para. 152;
McGregor v. Crossland
, [[1994] O.J. No. 310] 1994
    CanLII 388 (Ont. C.A.) at para. 3. Further, the appeal record contains no
    indication that notice was served for the admission of these reports under s.
    52 of the
Evidence Act
. [Emphasis added.]

[47]

In
Robb Estate v. Canadian Red Cross Society
(2001), 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] O.J. No. 310 (Ont. C.A.) the court
    noted, at para. 3:

We do not think that the diagnosis  is
    admissible under s. 35. It does not relate to any act, transaction, occurrence
    or event. If the notes were to be admissible at all this would have had to
    have been under s. 52 of the
Evidence Act
.

(c)

The Principles Applied

[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. Sanchezs report and his clinical
    notes and records.

(i)

Dr. Beckers Opinion

[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 persons 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. Beckers 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. Giraos claim
    expressed by Dr. Rosenblat, whose opinion was incorporated in Dr. Beckers
    accident benefits report:

Ms. Girao is a woman who has functioned well
    for most of her life outside of three specific areas. There is a significant
    history of a highly traumatic rape at the age of 18 from which she recovered.
    There was also a possible major depressive episode about one year prior to the
    accident from which she had full recovery. Furthermore, she had been suffering
    some back pain, again approximately a year prior to the accident. After the
    accident she developed gradually worsening bodily pains. She only began
    experiencing her depression approximately six months after the accident.
    Because her depression came on so many months after the onset of pain, it is
    clear that her pain triggered her depression and therefore her accident played
    a substantial role in precipitating her second depression. It is likely that
    her earlier rape and possible episode of depression predisposed her to the
    impact of this motor vehicle accident.

[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. Beckers 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.
    Beckers 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.

(ii)

Dr. Sanchezs Opinion

[61]

The
    defence asserted and relied on the truth of Dr. Sanchezs 2001 letter of
    opinion concerning the appellants 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:

Even the doctors treating Ms. Girao, including
    Dr. Manohar, have provided the same psychiatric diagnosis of Ms. Girao in
    2012, of that of major depressive disorder with psychotic features in partial
    remission that she had in 2001 with Dr. Sanchez.

[62]

Dr.
    Sanchezs 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. Sanchezs opinion at the trial when defence
    counsel asked her about Dr. Sanchezs report.

Ms. Girao: Your Honour, the content of this
    report, I told the jurors. He hasnt brought Dr. Sanchez, so

The Court: Just, just

Ms. Girao:  he hasnt, I mean, so he can be
    cross-interrogated about this.

The Court: The witness wasnt allowed to
    address this document as part of her evidence-in-chief on the basis that it was
    not evidence.

Defence Counsel: Right. But, this is cross-examination
    Your Honour.

The Court: I know, but its cross-examination
    on evidence.

Defence Counsel: No. Its cross-examination on
    the statements made, which is different in, then its [sic] prior inconsistent statements
    which then is admissible. And, thats.

The Court: We marked all these documents as.

Defence Counsel: As exhibits, as business
    records.

The Court: Yes.

Defence Counsel: Right.

Ms. Girao: Your Honour.

The Court: So, its in evidence. You gave your
    evidence about this. And, shes answered your questions, I think, with respect
    to it. Lets just carry on.

[64]

And
    the questioning regarding Dr. Sanchez continued, taking up several pages of the
    transcript. I interpret this exchange as Ms. Giraos 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. Sanchezs report, but without calling him.

[66]

Defence
    counsel stated that Dr. Sanchezs 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. Sanchezs report was also in under s. 52 of the
Ontario
Evidence Act
related to medical
    reports.

[67]

Dr.
    Sanchezs 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:

[The] record makers impression, opinion or diagnosis
    recorded in these records, is not admissible for its truth unless the record
    maker testified before you about that opinion and you accept the evidence of
    that person. By opinion I mean an impression or a diagnosis of what in the
    opinion of a healthcare profession was wrong with the plaintiff and why.

[69]

However,
    the trial judge did not bring this caution home to the jury with respect to Dr.
    Sanchezs opinion. His jury charge including his review of the evidence ratified
    the defences abuse of the opinion for hearsay purposes.

[70]

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

After the accident, Ms. Giraos pre-existing
    mental health issues and depression continued to worsen unabated as they had
    been leading up to the accident. 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.

Ms. Giraos progressive mental illness and
    psychiatric problems continued to worsen and Ms. Girao used the motor vehicle
    accident as the scapegoat of all her problems regarding her inability to adapt
    to life in Canada, her difficulties with English, her worsening pre-existing
    mental health issues, past memories and familial problems in raising her
    children.

[71]

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

[72]

The
    trial judge made no reference to Dr. Sanchezs report in his threshold ruling
    or in the costs endorsement.

(iii)

Discussion

[73]

I infer that the defence
    used s. 35 of the
Evidence Act
as the basis for introducing Dr. Sanchezs 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. Sanchezs 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. Sanchezs 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.
    Sanchezs report for the truth of its contents unless he was presented for cross-examination.
    On this basis, the hearsay content of Dr. Sanchezs 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.

(iv)

Conclusion

[75]

Ms. Girao properly served a notice under s. 52 of the
Evidence
    Act
and was entitled to refer to and
    rely upon Dr. Beckers report, and the reports that it summarized and attached
    including Dr. Rosenblats 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. Beckers 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. Beckers 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. Sanchezs opinion without calling him so that he too could be
    subject to cross-examination. The trial judge did not recognize Ms. Giraos
    objection to Dr. Sanchezs 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.

(3)

Issue Three: The Use of Information about
    Insurance

[79]

The
    statutory accident benefits settlement played an out-sized role in the defences
    strategy. It formed the basis of the defences attack on Ms. Giraos 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 defendants
    insurers deep pocket to excessively compensate the plaintiff. The mention of
    insurance no longer necessarily results in the jurys 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] 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 plaintiffs 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 Ontarios system for
    compensating people injured in motor vehicle accidents. I then address the law
    of evidence in that context.

(a)

Ontarios system
    for compensating people injured in motor vehicle accidents

[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), 15 O.R.
    (3d) 129, [1993] O.J. No. 2446 (C.A.), at para. 6. The plaintiffs 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), 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 jurys 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.

(b)

The Governing Principles of the Law of Evidence

[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), [1970] S.C.R.
    92. That case involved graphic photographs of a motorists injuries that were
    admitted at trial. While holding that the photographs were properly admitted,
    Spence J. said at p. 98:

The occasions are frequent upon which a judge
    trying a case with the assistance of a jury is called upon to determine whether
    or not a piece of evidence technically admissible may be so prejudicial to the
    opposite side that any probative value is overcome by the possible prejudice
    and that therefore he should exclude the production of the particular piece of
    evidence.

[92]

This
    principle applies generally and beyond physical evidence along with the trial
    judges 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] 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.

(i)

Relevance

[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),

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 plaintiffs 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
    plaintiffs 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 plaintiffs failure to
    mitigate: at para.  377.

[99]

The
    more contentious avenue has been to claim that the benefits settlement eroded
    the plaintiffs 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 plaintiffs] 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
, 23 C.C.L.I. (4
th
) 76 (Ont. S.C.), revd on
    other grounds, 229 O.A.C. 249 (Div Ct.), revd 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 carriers 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:

The best that [the defendant insurer] could do
    was to suggest that the quantum of the settlement might affect the plaintiffs
    motivation to return to work.
However, the issue to be determined at trial
    is whether or not the plaintiff is disabled from working, not whether the
    plaintiff has a financial incentive to work
. A wealthy person might have no
    incentive to work at all, yet would still be entitled to loss of income
    benefits if he were disabled from doing so. [Emphasis added.]

[103]

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

The issue in the benefits action is whether
    the plaintiff is disabled and unable to work. The impact, if any, of the
    settlement in the tort action on the plaintiffs motivation to work and the
    extent to which the plaintiff is actually disabled are both so speculative as
    to be beyond even the generous notion of relevance applied at this [discovery]
    stage of a proceeding[.]

[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 plaintiffs motivation to
    work.

[105]

The
    defence argues that the
Ismail
trial judges 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 plaintiffs 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 jurys
    verdict on future income loss and substituted his own award of $117,200. This
    court allowed the bars 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:

There was evidence that the plaintiff earned
    as much income, or more, following the accident as he had earned before the accident.
    Also, the plaintiff suffered from serious credibility issues in respect of his
    income and his motivation to work. In addition, there was evidence that the
    plaintiff had alternative job opportunities available to him.

[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 respondents argument regarding the effect of
McLean
for two reasons: First,
McLean
did not elevate the plaintiffs 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 plaintiffs failure to establish the credibility of his
    claim to be unable to work.


[112]

In my view, a plaintiffs 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 plaintiffs
    alleged malingering or motivation to work is a matter for the trial judges
    discretion in considering the balance of prejudicial effect and probative
    value, to which I now turn.

(ii)

The prejudicial effect/probative value balance

[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:

In my view, permitting a question about the
    totality of the accident benefits settlement received and any related question
    would expose Ms. Farrugia to double jeopardy. She would be subject to the
    impact of both the prejudicial effect of that question, as well as the fact
    that the very same accident benefits will be deducted under the
Insurance Act
,
    where applicable, from any award the jury makes.

[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 defences 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.

(iii)

Credibility

[119]

Several decisions have
    highlighted the plaintiffs 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 plaintiffs 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 plaintiffs ability to
    work.
McLean
noted that the plaintiffs 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 plaintiffs 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
    plaintiffs 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 plaintiffs
    cross-examination?

[123]

Cross-examining counsel are afforded broad scope for
    cross-examining a witness on matters related to credibility:
R. v.
Krause
,
    [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
    judges 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):

[W]
hile a witness may
    be properly questioned as to any matter that is relevant to credibility,
independent
    evidence may not be introduced to contradict the answer that the witness gave
.
    It follows that if on cross-examination a witness is asked questions by opposing
    counsel solely with a view to attacking the credibility of that witness, any
    answers provided are conclusive and cannot be contradicted by the calling of
    independent evidence to show that the answers might be untrue.

[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),
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), 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),
    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, revd on other grounds (1975), 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.

(c)

The Emerging Principles

[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, Ontarios
    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 judges 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 defences 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.

(d)

The Principles Applied

[138]

In my view Ms. Giraos
    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 judges 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. Giraos 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. Giraos 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. Giraos 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:

Defence Counsel: Okay. So, using this simple
    math, maam, you acknowledge you were paid $85,000 by Allstate from 2002
    through to 2006, under less than 4 years. And, youve also acknowledged, using
    the simple math, thats approximately $21,000 a year. Correct? Youve
    acknowledged this.

Ms. Girao: Okay. Okay.

Defence Counsel: Okay. But, yet, maam, now
    you acknowledge, for a full year at work at Hallmark you were only getting paid
    for, more or less a year, $13,000. Correct?

Ms. Girao: Okay.

Defence Counsel: So, maam, your cleaning
    toilets and making $13,000 a year. Youre not working, and Hallmark [sic], and
    Allstate Insurance Company is paying you $8,000 more a year for not working.
    Correct? You made money by not working. Correct?

Ms. Girao: But, I was sick.

Defence Counsel: Maam, you agree with me, you
    had additional $8,000 a year in income by not working. Correct?

Ms. Girao: Okay. Okay.

Defence Counsel: Maam, before the morning
    break we talked about the fact that youre receiving $8,000 more a year by
    staying home as opposed to working. Do you remember that?

Ms. Girao: Yes.

Defence Counsel: Okay. Thank you. Now, and
    then, when you went on ODSP in 2008....

Ms. Girao: Yes.

Defence Counsel: Right. You started receiving
    $21,000 a year from ODSP. Correct?

Ms. Girao: Thats correct.

Defence Counsel: So, maam, from 2002 through
    to, at least, 2006, you didnt have to work because you were getting more money
    from your accident benefit carrier than you were cleaning toilets in a building
    and working 40 hours a week. Yes?

Ms. Girao: Yes.

Defence Counsel: Yes. And, then from 2008 up
    until the present day, you dont have to work either because youre getting all
    that money from ODSP, which is more than youd make if you were cleaning
    toilets again. Correct?

Ms. Girao: Well, just by the way, cleaning
    toilets, its not something that someone should be ashamed of. Its a dignified
    piece of work. Okay?

[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.

(4)

Issue Four:
The role of the trial judge and counsel where one party is
    self-represented

[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.

(a)

The Governing
    Principles

[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:

1.

Judges and court administrators should do whatever is possible to
    provide a fair and impartial process and prevent an unfair disadvantage to
    self-represented persons.

2.

Self-represented persons should not be denied relief on the basis of
    a minor or easily rectified deficiency in their case.

3.

Where appropriate, a judge should consider engaging in such case
    management activities as are required to protect the rights and interests of
    self-represented persons. Such case management should begin as early in the
    court process as possible.

4.

When one or both parties are proceeding without representation,
    non-prejudicial and engaged case and courtroom management may be needed to protect
    the litigants equal right to be heard. Depending on the circumstances and
    nature of the case, the presiding judge may:

a.

explain the process;

b.

inquire whether both parties understand the process and the
    procedure;

c.

make referrals to agencies able to assist the litigant in the
    preparation of the case;

d.

provide information about the law and evidentiary requirements;

e.

modify the traditional order of taking evidence; and

f.

question witnesses.

[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:

It is no longer sufficient for a judge to
    simply swear a party in and then leave it to the party to explain the case,
    letting the party flounder and then subside into unhelpful silence. As this
    court has noted, it is well-accepted that trial judges have special duties to
    self-represented litigants, in terms of acquainting them with courtroom procedure
    and the rules of evidence:
Dujardin v. Dujardin
, 2018 ONCA 597,
    423 D.L.R. (4th) 731, at para. 37, repeated in
Gionet v. Pingue
,
    2018 ONCA 1040, 22 R.F.L. (8th) 55, at para. 30. The court added, at para. 31
    of
Gionet
: In ensuring that a self-represented litigant has a fair
    trial, the trial judge must treat the litigant fairly and attempt to
    accommodate their unfamiliarity with the trial process, in order to permit them
    to present their case, citing
Davids v. Davids
(1999), 125
    O.A.C. 375, at para. 36. See also
Manitoba (Director of Child and
    Family Services) v. J.A.
, 2006 MBCA 44, at paras. 19-20.

[151]

Although fairness
    concerns may animate how a trial judge exercises control over their courtrooms,
    there are clear limits to a trial judges 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
    counsels 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 Ontarios
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 courts 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.

(b)

The Principles Applied

[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 counsels 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.

(5)

Striking the Jury

[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.

(a)

The Governing Principles

[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), 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. OHerlihy
, 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), 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), 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 partys 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 partys 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),
    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.

(b)

The Principles Applied

[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:

The trial judge also considered the character
    of the jury and concluded that the jurors were dedicated, took their
    responsibilities seriously and
had the benefit of experienced counsel who
    knew their cases thoroughly and were exceptionally skilled at presenting
    evidence before a jury
. [Emphasis added.]

This excerpt identifies one of the critical elements
    missing from this jury trial: the presence on both sides of experienced
    counsel.

[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.

·

The appellant was self-represented and did not
    know the law.

·

She was testifying and conducting
    cross-examinations through an interpreter and the transcript excerpts in the
    appeal record show that difficulties occurred from time to time as the evidence
    unfolded.

·

She faced two sets of experienced and highly
    active jury counsel.

·

When the defence objected to a question or a
    statement made by Ms. Girao, as it frequently did, the jury had to be taken out
    so that argument could take place and appropriate instructions given, usually
    to her. This added to the trial time and to the frustrations of all involved,
    and likely to Ms. Giraos detriment.

[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
    appellants 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.

(6)

The Threshold Decision

[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 judges 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 judges 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 defences evidence.
Dr. Sanchezs 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.

VI.

Disposition

[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 appellants 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.

Released: April 21, 2020






[1]

Benefits
    actions were abolished by
Schedule
    3 of the
Fighting Fraud and Reducing Automobile Insurance Rates Act
,
    2014, S.O. 2014, c. 9. It came into force on January 1, 2015.



[2]

Effective October 1, 2014, the
Law

Society
approved
    new
Rules
of
Professional

Conduct
, modelled on the Federation of
Law

Societies
of
    Canada's
Model Code of
Professional

Conduct
.



