



COURT OF APPEAL FOR ONTARIO

CITATION: Gopie v. Ramcharran, 2019 ONCA 402

DATE: 20190517

DOCKET: C62352

Hoy A.C.J.O., Watt and Zarnett JJ.A.

BETWEEN

Ramesh
    Gopie, Seeta Jagmohan, Daniel Gopie,
Devica Gopie and
Shalinie Gopie, a minor by her Litigation Guardian, Seeta
    Jagmohan

Plaintiffs (Appellants)

and

Ravi Ramcharran, Roland Beadle, Dave Garnett, the
    City of Toronto, Sophia Khan o/a S.C.A.R.P. Auto Sales and
Economical Mutual Insurance Company

Defendants (Respondents)

Todd J. McCarthy, for the appellants

Jack Fitch, for the respondent, Economical Mutual
    Insurance Company

Heard: May 7, 2019

On appeal from the
    judgment of Justice Nancy J. Spies of the Superior Court of Justice, sitting
    with a jury, dated October 27, 2016.

REASONS FOR DECISION

[1]

The appellant, Ramesh Gopie, was injured in a motor vehicle accident on
    November 1, 2005. The driver of the other vehicle was uninsured, so Mr. Gopies
    own insurer, the respondent Economical Mutual Insurance Company, defended the
    action as an uninsured motorist carrier. Liability was not in dispute. The appellants
     Mr. Gopie and his family  sought in excess of $10 million in damages,
    arguing that Mr. Gopie suffered ongoing symptoms from the mild traumatic brain
    injury he sustained in the accident.

[2]

Following an eight-week trial, the jury returned a verdict of about
    $186,000, including pre-judgment interest  an amount significantly less that
    the respondents pre-trial settlement offer of $500,000, plus costs. Once the
    damages, pre-judgment interest, and the costs awarded to the appellants were
    set off against the costs the trial judge awarded to the respondent, the
    appellants recovered nothing and owed the defendants a further $22,406.37 in
    costs.

[3]

The appellants argue that there are two reasons for the jurys modest assessment
    of Mr. Gopies damages and that they require a new trial. First, the jury was
    allowed to effectively judge the character of Mr. Gopie and whether he was a
    person who was generally untruthful, and, therefore, could not properly assess whether
    the evidence about his ongoing symptoms following the accident should be
    accepted or rejected. They say this was the result of the trial judge
    improperly exercising her gatekeeping function in permitting Dr. Furlong, one
    of the respondents two defence psychiatrists, to impugn Mr. Gopies character
    and the trial judge having improperly told the jury that they could use the
    evidence of Mr. Gopies convictions arising out of events following the
    accident and other unlawful conduct for the purpose of assessing Mr. Gopies
    credibility. The appellants argue that, together, these errors resulted in a
    character assassination.

[4]

Second, the jury was led astray on the proper test for causation and the
    standard of proof applicable to claims for damages in the future by the trial
    judges charge on what she described as preliminary questions that the jury
    may wish to consider before reviewing the Questions for the Jury.

[5]

We reject these arguments.

[6]

The appellants had called evidence of both Mr. Gopies good character
    traits and bad behaviour, including convictions and other unlawful conduct.
    Their position was that he was of good character before the accident, and his
    bad behaviour following the accident was the result of ongoing emotional
    disability caused by the mild traumatic brain injury he sustained in the
    accident. Having introduced evidence of Mr. Gopies character, the respondent
    was entitled to challenge it.

[7]

The respondent put the evidence of Mr. Gopies unlawful conduct to Dr.
    Furlong, as hypotheticals, and asked him whether such conduct, if it had
    occurred, would affect his psychiatric assessment of Mr. Gopie. In responding
    to whether it would affect his assessment if Mr. Gopies licence were suspended
    on medical grounds and Mr. Gopie continued to drive, Dr. Furlong offered a
    number of possible interpretations including that Mr. Gopie had told stories to
    the doctors on whose advice his licence was suspended that were not true. Over
    Mr. Gopies trial counsels objection, the trial judge permitted respondents
    counsel to continue and confirm with Dr. Furlong whether such conduct would
    affect his psychiatric assessment of Mr. Gopie.

[8]

We agree with the appellants that Dr. Furlongs response including that
    Mr. Gopie might have told stories to the doctors that were not true was not
    proper expert evidence. In her summary of Dr. Furlongs evidence in her charge
    to the jury, the trial judge made no reference to this response. Referring to
    his response and telling the jury to disregard it may well have drawn more
    attention to it. Mr. Gopies trial counsel made no objection to the manner in
    which the trial judge summarized Dr. Furlongs evidence. We are not persuaded
    that Dr. Furlongs response or the manner in which the trial judge charged the
    jury in relation to Dr. Furlongs evidence warrants a new trial.

[9]

The trial judge charged the jury that they could use the evidence of Mr.
    Gopies criminal record and other admitted unlawful conduct for two purposes:
    first, to assess how, if at all, the accident impacted on Mr. Gopies judgment
    and, second, for the purpose of assessing the credibility and truthfulness of
    Mr. Gopie. The appellants argue that Mr. Gopies unlawful conduct could only be
    used for the purpose of assessing his credibility to the extent that he denied
    those acts of misconduct at trial, and the trial judge erred in charging the
    jury otherwise. We reject this argument. The trial judge properly charged the
    jury that they could use the evidence of Mr. Gopies criminal record and
    admitted unlawful conduct for the purpose of assessing the credibility and
    truthfulness of Mr. Gopie, in addition to using it to assess how, if at all,
    the accident impacted on Mr. Gopies judgment. Moreover, the trial judge
    provided a draft of her charge to counsel for review and comment. Trial counsel
    for the appellants made no objection regarding this portion of the charge.

[10]

Nor
    do we agree that the jury was led astray on the proper test for causation and
    the standard of proof applicable to claims for damages in the future by the
    trial judges charge on what she described as preliminary questions. The
    trial judge clearly and carefully charged the jury that for the defendants to
    be held liable in damages to the plaintiffs, it was necessary for the
    plaintiffs to prove that they would not have suffered the injuries claimed but
    for the accident. She then explained the standard of proof that was required.
    After describing the balance of probabilities standard, she went on to
    explain that a different standard of proof  whether there is a real and
    substantial possibility  applies to claims for damages in the future. After
    this, and before reviewing the Questions for the Jury, she set out some
    preliminary questions, around which she organized her review of the evidence, to
    assist the jury in their fact-finding process. In crafting those questions, she
    carefully used the real and substantial possibility standard when referring
    to the impacts on Mr. Gopies future physical and mental health. The manner in
    which she formulated those preliminary questions would not have created any
    confusion about the standard of proof applicable to claims for damages in the
    future.

[11]

In
    their factum, the appellants made three additional arguments, which they did
    not pursue in their oral submissions, namely that the trial judge:

(1) failed
    to properly exercise her gatekeeper function in permitting two defence
    psychiatrists to testify;

(2) erred in
    law in ruling that medical records admitted as business records under s. 35 of the
Evidence Act
, R.S.O. 1990, Ch. E.23, were not admissible as medical
    opinions, in the absence of attendance and testimony from the practitioner; and

(3) in her
    charge, failed to provide (i) a sufficiently strong direction to the jury that
    they should reject any comments or opinions the judge made regarding the
    evidence if they were not in accord with the jurys comments or opinions; and
    (ii) a balanced charge to the jury on the issue of the pre-trial surveillance
    of Mr. Gopie and the use to be made of it.

[12]

We
    also reject these arguments.

[13]

First,
    there is no basis to interfere with the trial judges ruling permitting two
    psychiatrists to testify for the respondent. She considered and fulfilled her
    gatekeeper function and provided a careful and comprehensive written ruling.
    Among other things, she considered the quantum of damages claimed, that the
    alleged psychological issues were a significant aspect of the claim, and the
    balance in the number of experts called by each side. The trial judge concluded
    that overall [the two psychiatrists] perspectives were quite different, and
    their evidence would not be unduly repetitive and would be of assistance to the
    jury. Further, there was no prejudice to the appellants if the two
    psychiatrists were permitted to testify, whereas the respondent might be
    prejudiced if they were not both permitted to do so.

[14]

Second,
    an opinion contained in a medical record may be admissible as a medical report
    if the report is signed by the practitioner
and
leave of the court is obtained:
Evidence Act
, s. 52(2). The trial
    judge correctly exercised her gatekeeper function with respect to the admission
    of medical opinions contained in the medical records and reasonably concluded
    that they were not admissible in the absence of attendance and testimony from
    the practitioner.

[15]

Third,
    the jury charge was comprehensive, fair, and well-balanced. The trial judge
    provided a clear and sufficient direction to the jury that they, and not the
    judge, were the fact-finders:

[T]he law permits me to comment or express opinions about
    issues of fact. If I do that, you do not have to reach the same conclusion.
    You, not I, decide what happened in this case.

As stated, the trial judge provided a draft of her
    charge to counsel for review and comment. Trial counsel made no objection with
    respect to the issues now raised, before or after delivery of the charge.

[16]

Finally,
    the appellants also seek leave to appeal costs. They acknowledge that there
    must be some cost consequences when offers to settle are greater than the
    judgment in accordance with the jurys verdict, but argue that, in all the
    circumstances, the trial judges approach was disproportionate and the
    consequences to Mr. Gopie of the trial judges costs order are too harsh.

[17]

There
    is no basis to interfere with the trial judges costs order. She considered the
    appropriate factors in fixing costs and her order is not plainly wrong.
    Accordingly, leave to appeal the costs order is refused.

[18]

The
    respondent shall be entitled to its costs of the appeal, fixed in the agreed
    upon amount of $20,000, inclusive of HST and disbursements.

Alexandra Hoy
    A.C.J.O.

David Watt J.A.

B. Zarnett J.A.


