



COURT OF APPEAL FOR ONTARIO

CITATION: Jugmohan v. Royle, 2016 ONCA 827

DATE: 20161104

DOCKET: C60191

Blair, Epstein and Huscroft JJ.A.

BETWEEN

Mahadei Jugmohan

Plaintiff (Appellant)

and

Gordon Royle, Frank Naccarato and Ivan Bascom

Defendants (Respondents)

Steven Raphael, for the appellant

Mark Elkin and Nicholas Mester, for the respondents
    Gordon Royle and Frank Naccarato

Peter Yoo and Philip Pollack, for the respondent Ivon
    Bascom

Heard and released orally: November 1, 2016

On appeal from the judgment of Justice Stephen E.
    Firestone of the Superior Court of Justice, dated February 18, 2015.

ENDORSEMENT

[1]

The appellant appeals the jury award of zero damages based on her action
    for damages allegedly sustained in a car accident and the trial judges ruling
    that her claim for non-pecuniary loss is barred on the basis that her injuries
    do not fall within the exceptions to statutory immunity provided for by the
Insurance
    Act
, R.S.O. 1990, c. I. 8.

[2]

The appellant raises two main grounds of appeal.

[3]

First, the appellant says the jury verdict is perverse as the evidence
    supported a finding that she suffered compensable damages as a result of the
    accident. This ground of appeal includes the appellants argument that the
    trial judge erred by correcting his jury charge from his initial instructions,
    in which he expressed the view that an assessment of zero damages would not be
    appropriate, to an instruction that if the jury were to find that the accident
    did not cause any new injury, or exacerbation of any pre-existing injury, an
    award of zero damages would be available.

[4]

We reject this first ground of appeal.

[5]

The appellants assertion that a properly instructed jury would have
    awarded damages cannot succeed. Although after the accident, the appellant
    underwent a right knee replacement and right shoulder rotator cuff repair,
    there was evidence that prior to the accident, she experienced osteoarthritis
    and degenerative changes in her right shoulder and right knee. There was expert
    evidence that the jury was entitled to accept that the appellants post-accident
    difficulties were inevitable, given her prior conditions.

[6]

The findings of a jury are entitled to great deference, particularly in
    cases such as this that depend largely on credibility. A jury verdict will not
    be set aside unless so plainly unreasonable and unjust as to satisfy the court
    that no jury reviewing the evidence as a whole and acting judicially could have
    reached it. On the evidence, it was open to this jury to conclude that the
    injuries that formed the basis of the appellants claim were not caused by the
    accident and therefore that the appellant was not entitled to any damages.

[7]

As to the correcting jury charge, although appellants trial counsel
    initially objected to the proposed correction, he ultimately agreed to it after
    the trial judge reworded it to his satisfaction. The charge was clear. The members
    of the jury were not left with any misapprehension with respect to their duties
    or the principles to apply, in reaching their verdict.

[8]

The disappointment that the appellant undoubtedly feels at the jurys
    verdict is understandable. However, her disappointment does not establish legal
    error or a perverse conclusion.

[9]

With respect to the second ground of appeal, the appellant submits that
    the trial judge erred by disregarding relevant medical evidence that supported
    her position on the threshold motion and arrived at an unsupported conclusion.
    The appellant argues that the only expert evidence tendered in response to her
    evidence was that of Dr. Cameron, who was demonstrably partisan and who based
    his opinion on a superficial review of the medical evidence.

[10]

Again, we disagree.

[11]

We do not accept the argument that the trial judge failed to consider
    material evidence. In his reasons, the trial judge made repeated reference to
    all of the evidence he heard at trial  evidence that he had an opportunity to
    weigh and from which he was entitled to make credibility findings. There was
    ample evidence upon which the trial judge could properly rely to find that the
    threshold was not met, particularly in the light of the jury award.

[12]

Decisions of this nature are afforded the highest degree of deference
    and should not be interfered with absent palpable and overriding error. We find
    no reason to interfere.

[13]

The appeal is therefore dismissed.

[14]

The respondents, Royle and Naccarato, are entitled to their costs of the
    appeal, fixed in the amount of $10,000. Similarly, the respondent, Bascom, is
    entitled to his costs of the appeal, fixed in the amount of $10,000. Both
    amounts include disbursements and applicable taxes.

R.A. Blair J.A.

Gloria Epstein J.A.

Grant Huscroft J.A.


