



COURT OF APPEAL FOR ONTARIO

CITATION: Ross v. Bacchus, 2015 ONCA 347

DATE: 20150515

DOCKET:
C58102

Doherty, Pepall and van Rensburg JJ.A.

BETWEEN

Bryan Ross

Plaintiff (Respondent)

and

Shaheed Bacchus

Defendant (Appellant)

Todd J. McCarthy, for the appellant

D. Robert Findlay and T. Andrew Sprung, for the
    respondent

Heard: April 23, 2015

On appeal from the judgment of Justice James A. Ramsay of
    the Superior Court of Justice, sitting with a jury, dated November 27, 2013 and
    the costs order, dated December 16, 2013, with reasons reported at 2013 ONSC
    7773.

Doherty J.A.:


I



OVERVIEW

[1]

Bryan Ross (the respondent) was stopped at a red light on his motorcycle
    when a vehicle driven by Shaheed Bacchus (the appellant) struck him from
    behind. Mr. Ross sued, claiming injuries to his back, neck, hip and knees. A
    jury awarded Mr. Ross damages of $248,000. The trial judge ordered costs and
    disbursements payable to Mr. Ross in the amount of $217,000 plus HST. The costs
    order included $60,000 awarded by the trial judge because Mr. Bacchuss insurer
    had failed to attempt to settle the claim as expeditiously as possible, and had
    refused to participate in the mediation of the claim, as required by ss. 258.5
    and 258.6 of the
Insurance Act
, R.S.O. 1990, c. I.8. Those provisions
    provide that a trial judge can take the insurers failure to perform those
    obligations into consideration when awarding costs. Mr. Bacchus appeals both
    damages and costs.

[2]

In his appeal from the damages award, counsel for the appellant raised
    various issues in his factum. He concentrated on two arguments in his oral
    submissions. I will address only those arguments in these reasons.
[1]
Counsel submits that the interventions by the trial judge throughout the trial
    destroyed the appearance of judicial impartiality, rendered the trial unfair,
    and resulted in a miscarriage of justice. Counsel also argues that the trial
    judge misdirected the jury on the issue of causation.

[3]

The appellant also seeks leave to appeal the costs award. Counsel made
    several submissions in his factum attacking the costs order, but limited his
    oral argument to a single point. Counsel submits that the trial judge erred in
    awarding the respondent $60,000 in costs to reflect the appellants insurers
    failure to attempt to settle the claim as expeditiously as possible, and the
    insurers refusal to participate in the mediation of the claim. Counsel contends
    that there is no evidence that the insurer failed to attempt to expeditiously
    settle the claim. In addition, he submits that the evidence actually demonstrates
    that the insurer participated in an eleventh hour mediation requested by
    counsel for the respondent.

[4]

I would dismiss the appeal from the damages award. There is no merit to
    the argument that the interventions by the trial judge destroyed the appearance
    of impartiality and resulted in a miscarriage of justice. The instructions to
    the jury properly captured the causation requirement even if the trial judge
    did not use the exact words from the most recent jurisprudence.

[5]

I would grant leave to appeal the costs order and allow the appeal by
    deleting the $60,000 the trial judge awarded to reflect the insurers failure
    to comply with its obligations under ss. 258.5 and 258.6 of the
Insurance
    Act
. The record does not support the trial judges findings that the
    insurer failed to attempt to settle the claim expeditiously and its
    participation in the mediation was a sham.


II



THE TRIAL JUDGES INTERVENTIONS

[6]

Judicial interventions in the course of a trial can, by their content,
    nature, number or a combination of the three, result in a miscarriage of
    justice. The interventions considered as a whole may reveal a reasonable
    apprehension of bias or result in an impermissible interference with the proper
    role of counsel. In either event, the interventions will destroy the appearance
    of justice, an essential element in any trial:
Ross v. Hern
, [2004]
    O.J. No. 1186 (C.A.), at paras. 11-13;
Osterbauer v. Ash Temple Ltd.
(2003)
, 63 O.R. (3d) 697 (C.A.), at
    paras. 10-11.

[7]

In his factum, counsel for the appellant focused on interventions by the
    trial judge during the cross-examination of the main expert called by the respondent
    at trial. In oral argument, however, counsel took the court to three interjections
    by the trial judge during the cross-examination of the respondent and a series
    of interjections by the trial judge during the re-examination of the respondent.
    Counsel advised that these interruptions, standing alone, would not merit appellate
    intervention, but were provided to give necessary context and meaning to the improper
    interventions that occurred during the testimony of the respondents expert.

[8]

I have read and re-read the 80-page cross-examination of the respondent.
    Appellate counsels submission that the cross-examination is riddled with
    unsolicited interventions by the trial judge is unsupported by the record. As
    in any trial, the trial judge interrupted both counsel from time to time. The
    interruptions during the respondents cross-examination were mainly brief, and so
    innocuous as to be almost unnoticeable.

[9]

I turn now to the three interventions highlighted by counsel for the
    appellant in his oral argument. The first occurred when Mr. Ross testified that
    he did not recall telling the police officer at the scene that he did not
    sustain any injuries in the accident.  Trial counsel for the appellant sought
    to cross-examine the respondent on evidence he had given at his discovery. The
    trial judge had a transcript of the discovery.  As counsel began to put a
    portion of the respondents discovery evidence to him, the trial judge said:

Wait a minute. How is this inconsistent with what he has just
    told us?

[10]

A
    brief exchange ensued between the trial judge and counsel for the appellant. Counsel
    then said:

For some reason I misinterpreted that he had not told the
    officer that. Thats fine, Ill just go on.

[11]

Clearly,
    counsel intended to cross-examine the respondent on part of his discovery, but upon
    a further examination of the transcript prompted by the trial judges question,
    decided that there was no inconsistency between the discovery evidence and the
    evidence at trial. Counsel moved on.

[12]

The
    trial judge cannot be criticized for asking counsel to clarify the purpose of
    the proposed cross-examination. As became obvious, the trial judges question
    was well-founded, as counsel had apparently misapprehended the discovery
    evidence. The trial judges inquiry avoided cross-examination on a non-existent
    inconsistency. This sort of judicial intervention, standard fare in any jury
    case, could not possibly have had any adverse effect on the appearance of the
    fairness of the trial.

[13]

In
    this court, counsel for the appellant submitted that the trial judges
    interruption was improper because the respondents discovery evidence was
    admissible at the behest of the appellant without any demonstration of
    inconsistency: see
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, rule
    31.11(1). No doubt, a party can read in the discovery of an adverse party as part
    of its case. That is not what trial counsel was doing during the
    cross-examination of the respondent. Counsel wanted to use the respondents
    discovery to impeach the respondents trial testimony based on an alleged inconsistency:
    see rule 31.11(2). That effort was abandoned when, in response to the trial
    judges question, it became clear to counsel that there was no inconsistency.

[14]

The
    second incident during cross-examination of the respondent, said by counsel for
    the appellant to have skewed the fairness of the trial, occurred when trial counsel
    for the appellant put certain physiotherapists notes to the respondent. Counsel
    asked:

And would there  and any reason why, in those 22 treatment
    notes, theres no reference to your left knee pain?

[15]

The
    trial judge interrupted to point out that the respondent was not the author of
    the physiotherapists notes and could not explain why something was not in
    those notes. Counsel quickly revised the question, asking:

And you didnt  and during those 22 treatments you didnt make
     you didnt complain of any left knee complaints to the therapist.

[16]

The
    trial judges brief and appropriate interjection caused counsel to reframe the
    question and proceed with his cross-examination. The intervention had no adverse
    impact on counsels conduct of his cross-examination or the appearance of
    fairness in the proceeding.

[17]

The
    last of the three interventions relied on by counsel for the appellant arose
    when counsel was questioning the respondent about an entry in a document. It
    would appear from the transcript that the relevant part of the document was
    difficult to read. The trial judge, referring to that part of the document,
    said:

Its very small it says shortage of work.

[18]

The
    witness agreed with the trial judges reading of the entry. Counsel for the
    appellant did not suggest any different reading and continued his
    cross-examination.

[19]

It
    is beyond me how this interjection could be given any sinister connotation. Nothing
    in the trial record suggests that anyone at the trial took the trial judges
    comment as anything but a
bona fide
attempt to read the entry in the
    document on which the respondent was being cross-examined.

[20]

Counsel
    for the appellant also takes issue with the trial judges interventions during
    the re-examination of the respondent. The re-examination covers some 11 pages
    of the trial transcript. The trial judge interrupted trial counsel for the
    respondent early in his re-examination and, to a limited extent, took over
    parts of that re-examination. His intervention was probably unnecessary and may
    have caused some confusion in the re-examination. Considered in the context of
    the entire trial, however, the intervention bordered on trivial, and did not
    impair the appearance of the fairness of the trial, or prevent the appellant
    from presenting his case at trial.

[21]

I
    come now to the interventions during the cross-examination of the respondents
    expert. Counsel for the appellant submits that these interventions demonstrate
    the trial judges bias and resulted in a miscarriage of justice.

[22]

The
    trial judges comments challenged by counsel for the appellant begin some 21
    pages into a 24-page cross-examination of the expert. Trial counsel for the
    appellant had spent some time establishing the basis for the experts opinion
    and, in particular, establishing that the statements made by the respondent to
    the expert were relied on by the expert in coming to his opinion. The
    cross-examination continued:

Q.      Well, no, youre aware of what he [the respondent] tells
    you.

A.      Correct.

Q.      The assumptions that you receive from him, as you said
    earlier, you believe are true, correct?

A.      Absolutely.

Q.      Okay.

A.      Well I believe them true, but I do my own assessment.

Q.      You do your own assessment

A.      Of course.

Q.
b
ut it sounds to me like hes providing you
    with inaccurate assumptions when you take into consideration his evidence
    yesterday thats what Im saying.
[Emphasis
    added.]

[23]

Counsels
    last question prompted the trial judge to interrupt with the observation that the
    witness could not answer the question as posed, but could identify the sources
    of information he had relied on in preparing the report. The trial judge was
    correct in his observation. It was not for the expert to characterize statements
    made to him by the respondent as accurate or inaccurate. That was a question
    for the jury.

[24]

Trial
    counsel continued his cross-examination of the expert and his attempt to
    establish that parts of the experts report were based on statements made by
    the respondent. Counsel suggested to the expert that he had relied on factual
    assumptions and the medical record to prepare this report. The witness
    disagreed. Before counsel could pose a further question, the trial judge
    intervened and reiterated his concern about the line of questioning. After a
    brief exchange between counsel and the trial judge, the trial judge said:

Dont ask him to tell you whats true and whats not, he cant
     and based on the evidence hes heard  hes an expert and hes giving an
    opinion based on a hypothetical. The jury will be told to find the facts 
    whether the hypothetical resembles the true facts or not and whether theres
    any difference, any material difference in what he assumed, and what are the
    true facts as they find them.

[25]

Counsel
    replied:

Okay, fair enough then; those are all my questions.

[26]

It
    may be that this additional intervention was unnecessary. However, that is as
    far as any legitimate criticism of the intervention can go. Nothing said by the
    trial judge interfered with counsels ability to cross-examine the expert, or would
    suggest to a reasonable observer that the trial judge had placed the weight of
    his office on the respondents side of the scale. The final comment by the
    trial judge made the defence position clear. It would be for the jury, and not
    the expert, to decide the true facts.

[27]

I
    have considered the interjections identified by counsel for the appellant. I
    have placed those interventions in the context of the entire record. None merit
    appellate sanction. Nor can I assume, as counsel argued the court should, that
    the interventions were made in a tone of voice that demonstrated the trial
    judges hostility toward the appellants case.

[28]

In
    summary, most of the interventions were appropriate. A trial judge is obliged
    to see to it that questions put to witnesses comply with the rules of evidence.
    Some of the interventions may have been unnecessary and some may even have
    suggested a degree of impatience with counsel. None, however, compromised the
    appearance of the fairness of the trial. There is no merit to this ground of
    appeal.


III



THE CAUSATION ISSUE

[29]

The
    trial judge told the jury:

He [the appellant] is not,
    however, liable to compensate the plaintiff for injury he did not cause.

In law, the cause of an
    injury is the cause which produces the injury, and without which the result
    would not have happened.
This does not mean that the law recognizes only
    one cause of an injury. There may be more than one effective or proximate cause
    of the injury. The accident was a cause of an injury if it was a direct
    contributing cause. [Emphasis added.]

[30]

Counsel
    for the appellant submits that the instruction is inconsistent with the
    language used in
Clements v. Clements
, 2012 SCC 32, [2012] 2 S.C.R.
    181, at para. 46. Counsel argues that the trial judge was required to use the
    phrase but for in explaining causation to the jury.

[31]

The
    argument favours form over substance. The trial judge, in explaining causation to
    the jury, referred to the cause which produces the injury, and without which
    the result would not have happened. The latter part of this is a but for
    instruction on causation. Nothing said by the trial judge in the rest of his
    charge detracted from this language.  No objection was made to the causation
    instruction. The failure to use the phrase but for in describing causation is
    not reversible error as long as the words used to describe the causation
    requirement convey the correct meaning to the jury.

[32]

I
    would not give effect to this ground of appeal.


IV



THE COSTS ORDER

[33]

The action was commenced in September 2010. The appellants insurer
    offered to settle the claim for $40,000 in August 2011 and withdrew that offer
    in March 2012.

[34]

In
    late October 2013, about three weeks before the trial was to commence, counsel
    for the respondent offered to settle the claim for $94,065, plus prejudgment
    interest and costs. The respondent also requested mediation for the first time.

[35]

Trial
    counsel for the appellant replied to the respondents offer the next day with
    an offer to settle for $30,001, plus prejudgment interest and costs. Counsel also
    agreed to a half-day mediation, but advised [the insurers] are not interested
    in settling this case. Counsel for the respondent replied with an offer to
    settle in the amount of $79,065, plus prejudgment interest and costs.

[36]

A
    half-day mediation was held on November 14
th
. The trial commenced on
    November 18
th
and, after a six-day trial, the jury awarded the
    respondent damages of $248,000. This amount was more than triple the amount of
    the respondents last offer.

[37]

The
    trial judge awarded the respondent costs on a partial indemnity basis to
    October 28, 2013, the date of the respondents first offer, and costs on a
    substantial indemnity basis after that date. The trial judge accepted the amounts
    claimed by the respondent as reasonable.  He awarded costs of $140,000, $17,000
    in disbursements, and $60,000 for the insurers failure to comply with ss. 258.5(5)
    and 258.6(2) of the
Insurance Act
. With HST, the costs award totalled
    $245,210.

[38]

In
    his factum, counsel for the appellant argued that the trial judge should not
    have granted costs on a substantial indemnity basis and that the amount awarded
    was excessive.  Counsel acknowledged in oral argument that the award of costs
    on a substantial indemnity basis after the date of the first offer was
    appropriate given the jurys verdict.  Counsel did not pursue arguments
    relating to the quantum of costs in oral argument.  The amount awarded was
    proportional and fair having regard to the issues and the length of trial.

[39]

Counsels
    oral argument focused on the trial judges award of an additional $60,000 in
    costs to reflect the appellants insurers failure to attempt to settle the
    action expeditiously and failure to participate in mediation. He contends that
    there is no evidence to support either finding. Counsel submits that the
    evidence shows that the appellants insurer did participate in mediation in a
    timely fashion after the respondent requested mediation, even though the trial
    was scheduled to commence less than one week later.

[40]

Counsel
    for the appellant argues that s. 258.6 of the
Insurance Act
does not
    contemplate an inquiry into the quality of the insurers participation in the
    mediation. He contends that any attempt to assess the
bona fides
of the
    insurers participation in the mediation will inevitably run aground on the
    privilege attaching to communications made for the purpose of settlement in the
    course of mediation: see
Union Carbide Canada Inc. v. Bombardier Inc.
,
    2014 SCC 35, [2014] 1 S.C.R. 800, at paras. 38-39. Finally, counsel argues that,
    apart from the privilege question, there is simply no evidence to justify the
    trial judges description of the insurers participation in the mediation as a sham.

[41]

Insurers
    defending claims for damages arising out of motor vehicle accidents are
    statutorily obliged to attempt to settle the claims as expeditiously as
    possible:
Insurance Act
, s. 258.5. Similarly, insurers are obliged,
    on request of the opposing party, to participate in a mediation of the claim:
Insurance Act
, s. 258.6. Failure to comply with either obligation
    shall be considered by the court in awarding costs:
Insurance Act
,
    s. 258.5(5), s. 258.6(2). These and related provisions are a clear expression
    of the Legislatures intention to promote the early and expeditious settlement
    of claims arising out of motor vehicle accidents:
McCombie v. Cadotte
(2001)
, 53 O.R. (3d) 704 (C.A.), at
    paras. 15-17.

[42]

In
Keam v. Caddey
, 2010 ONCA 565, 103 O.R. (3d) 626, this court
    considered the obligations imposed on insurers under ss. 258.5 and 258.6 of the
Insurance Act
. In that case, the insurer had declined two requests by
    the insured to participate in mediation, taking the position that the claim did
    not exceed the applicable threshold. No mediation was ever held.

[43]

The
    court began by rejecting the insurers contention that it could decline
    mediation based on its good faith assessment of the merits of the claim. The language
    of the relevant provisions of the
Insurance Act
made it clear that
    mediation was mandatory if requested by either side:
Keam v. Caddey
,
    at paras. 20-23. The court next considered the rationale that underlies costs
    awards pursuant to ss. 258.5 and 258.6. After recognizing the discretionary
    nature of the orders contemplated by those provisions, Feldman J.A. said, at
    para. 28:

Morden J.A. [in
McCombie v. Cadotte
] describes the costs
    sanction as a remedial penalty. It is remedial because it is intended not
    only to compel compliance by insurers with an important statutory purpose, but
    also to provide a remedy to the other party who was deprived of the opportunity
    for an early settlement of the claim. It is a penalty because it is not
    intended to be merely compensatory of costs unnecessarily incurred by the other
    party or parties, as that objective is already addressed by other costs
    provisions of the
Rules of Civil Procedure
, but to provide a meaningful
    consequence to an insurer that elects not to comply.

[44]

In
    that case, the court found that the insurers refusal to participate in the
    mediation warranted a costs award of $40,000, indicating, at para. 32, that the
    amount was necessary to reflect the censure of the court and to provide an
    appropriately significant recovery for the appellants. See also
Williston
    v. Gabriele
, 2013 ONCA 296, 115 O.R. (3d) 144, at paras. 25-27.

[45]

The costs sanctions in ss. 258.5(5) and 258.6(2) are clearly intended to
    penalize insurers for non-compliance with their statutory obligations in the
    specific case and to encourage those same insurers to comply with those
    obligations in future cases. The amounts awarded should be sufficient not only
    to sanction the particular breach, but to give insurers a strong financial
    incentive to comply with their obligations in the future.

[46]

The
    costs sanctions in ss. 258.5 and 258.6 can only serve their intended purposes if
    the facts justify the imposition of those sanctions. An insurers statement on
    the eve of trial that it is not prepared to settle a claim cannot be equated
    with an insurers failure to attempt to settle the claim as expeditiously as
    possible. Nor can an insurer who actually participates in a mediation be
    declared to have failed to participate simply because the insurer indicated
    prior to the mediation that it was not prepared to settle the claim. A clear statement
    of the insurers position going into the mediation, even a strong statement,
    does not preclude meaningful participation in a mediation.

[47]

There
    is no evidence that the appellants insurer failed to attempt to settle this
    claim as expeditiously as possible. The appellant made an all-in offer to
    settle for $40,000 in August 2011, less than one year after the action was
    commenced.  The respondents Rule 49 offer, his request for mediation and the
    mediation itself all occurred less than three weeks before the commencement of
    the trial.  The appellant counteroffered during that same period and attended
    the mediation.

[48]

There
    is also no evidence that the insurer did not participate in the mediation in a
    meaningful way. The trial judge assumed that because the insurers counsel
    advised that his client was not interested in settling the case, the
    insurers subsequent participation in the mediation was a sham. The
    assumption was unwarranted. A firm position strongly put going into mediation
    does not preclude meaningful participation in the mediation.  In any event, the
    insurer had made a settlement offer which was not revoked before trial.

[49]

The
    appellants submission that the settlement privilege effectively prevents any inquiry
    into the conduct of the parties during the mediation raises an interesting legal
    issue. I need not get into that issue. The respondent failed to adduce any
    evidence as to the manner in which the mediation proceeded and relied entirely
    on the insurers indication that it was not interested in settling the claim
    some three weeks before trial. If the respondent wanted costs for the insurers
    failure to participate in the mediation, it was incumbent on the respondent to lead
    evidence establishing the failure to participate in the mediation. Had the
    respondent attempted to do so, the question of the impact of the settlement
    privilege on the admissibility of evidence relevant to the insurers participation
    in the mediation may have come front and centre. On this record, the trial
    judges finding that the insurer did not participate in the mediation fails, not
    because the settlement privilege cloaks the mediation in confidentiality, but
    because the factual finding of the trial judge has no support in the evidence.

[50]

In
    ordering the costs sanctions under ss. 258.5 and 258.6, the trial judge was
    also influenced by what he saw as the insurers attempt to intimidate the
    respondent by refusing to make a counteroffer after the respondents last
    offer. The trial judge described the insurer as risking a trial for the sake of
    $50,000, the difference between the two offers.

[51]

Insurers,
    like any other defendant, are entitled to take cases to trial. When an insurer
    rejects a plaintiffs offer and proceeds to trial, the insurer risks both a
    higher damage award at trial and the imposition of substantial indemnity costs after
    the date of the rejected offer. Both risks came to pass in this case. The insurer
    paid a significant financial penalty for its decision to proceed to trial. The
    costs provisions in ss. 258.5 and 258.6 do not address those risks, but instead
    address the failure to meet the specific obligations identified in those
    provisions. The trial judges assumptions about the insurers motivation for
    rejecting the respondents offer and proceeding to trial had no relevance to
    the determination of whether augmented costs should be awarded under the
Insurance
    Act
provisions.


V



CONCLUSION

[52]

I would dismiss the appeal as it relates to damages. I would grant leave
    to appeal the costs order, allow that appeal, and reduce the costs awarded by
    $60,000.

[53]

Success
    on the appeal was divided. As agreed by the parties, the respondent should have
    his costs of the appeal in the amount of $10,000, inclusive of disbursements
    and HST.

RELEASED: DD  MAY 15 2015

Doherty J.A.

I agree S.E. Pepall
    J.A.

I agree K. van
    Rensburg J.A.





[1]
Counsel made brief reference to other issues which he indicated provided some
    context for his main arguments but would not, standing alone, warrant appellate
    intervention.  I have not addressed those arguments in these reasons as, in my
    view, they neither have merit, nor assist in the resolution of the two issues I
    have addressed in these reasons.


