



COURT OF APPEAL FOR ONTARIO

CITATION: Manos v. Riotrin Properties (Flamborough) Inc.,
    2020 ONCA 211

DATE: 20200316

DOCKET: C66520

Rouleau, Hourigan and Roberts JJ.A.

BETWEEN

Kim
    Manos

Plaintiff (Respondent)

and

Riotrin
    Properties (Flamborough) Inc.,
Wal-Mart Canada Corp.


and John Doe

Defendants (
Appellant
)

Sabatina Vassalli and Jeff Goit, for the appellant

Sivan Tumarkin and Michael Gerhard, for the respondent

Heard: March 10, 2020

On appeal from the
    judgment of Justice Michael R. Gibson of the Superior Court of Justice, dated
    January 4, 2019.

REASONS FOR DECISION

[1]

The respondent was accidentally sprayed with a fire extinguisher by an
    employee of the appellant. He commenced an action to recover damages for a respiratory
    injury he was alleged to have suffered as a result of the incident. At trial,
    the only issues were causation and damages. The respondent claimed to suffer
    from reactive airways disorder syndrome (RADS) as a result of the incident.
    The appellants position was that the symptoms the respondent was experiencing
    were the result of a pre-existing condition, or, alternatively, that he was
    malingering.

[2]

The trial judge found that the respondent suffered from RADS that was
    triggered by the incident. He granted $225,000 in non-pecuniary general damages
    in addition to pecuniary damages, and damages for subrogated claims for the
    respondents insurers.

[3]

The appellant seeks a new trial or, in the alternative, a reduction in
    the amount of non-pecuniary general damages awarded. Its primary arguments are
    that the trial judge erred in the admission of the evidence of a participant
    expert, that his reasons were insufficient because he failed to consider
    relevant evidence of the appellants experts, and that he erred in relying on
    foreign jurisprudence in making an award of non-pecuniary damages that was manifestly
    excessive.

(i)

Participant Expert

[4]

The appellant argues that the trial judge erred by allowing the respondents
    treating respirologist, Dr. Killorn, to give opinion evidence regarding his
    diagnosis of RADS that went beyond the allowable scope for a participant expert.
    In response to an objection at trial that Dr. Killorn was opining on the issue
    of causation, the trial judge distinguished etiology, being the medical cause
    of a disease or condition, from causation in the legal sense. He held that it
    was natural for a treating physician to consider the etiology of the condition
    he or she was treating. Therefore, Dr. Killorn was permitted to testify regarding
    his diagnosis as a participant expert.

[5]

The appellant argues that the trial judge ignored the distinction
    between legal causation and medical causation in his reasons. It submits that
    the trial judge relied on Dr. Killorns opinion regarding legal causation,
    which was not formed in the ordinary exercise of Dr. Killorns expertise. In
    addition, the appellant argues that the fact that Dr. Killorn had prepared
    letters at the request of the respondent means that he was engaged by the
    respondent for the purposes of r. 53.03, of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194.

[6]

Finally, the appellant argues that allowing a participant expert to give
    evidence as to the ultimate issue of causation, without requiring compliance
    with r. 53.03 and a report on the issue of causation, amounted to trial by
    ambush and was a breach of procedural fairness.

[7]

We are not persuaded by this submission. The trial judge did not rely on
    the evidence of Dr. Killorn regarding legal causation. Rather, he permissibly
    relied on Dr. Killorns evidence about his diagnosis, which was based on his
    observations and participation in the events as a treating physician. Further,
    we see no error in the trial judges conclusion that the drafting of the
    letters, including one addressed to the claims adjuster acting on behalf of the
    appellant, did not result in a situation where Dr. Killorn was required to
    comply with r. 53.03.

(ii)

Adequacy of Reasons

[8]

The appellant argues that the trial judge provided inadequate reasons because
    he did not explicitly consider the medical evidence of the appellants witnesses
    regarding whether the respondent is suffering from RADS. The parties provided
    conflicting expert evidence on this issue. The trial judge identified this
    central causation issue at para. 22 of his reasons:

With respect to the diagnosis of RADS and the overall issue of
    causation, the plaintiff called Dr. Duncan (family physician), Dr. Killorn
    (treating respirologist) and Dr. Mintz (expert respirologist). The defendant
    sought to discount their conclusions. I was ultimately persuaded that their
    opinions likely most closely reflected what has actually happened to Mr. Manos
    in medical terms. I accept the opinion evidence of Dr. Killorn and Dr. Mintz
    concerning their diagnosis.

[9]

The appellant adduced evidence from three participant experts, Drs.
    Neighbour, McIvor and Anderson, that the respondent does not have RADS. The
    evidence of Dr. Mate, the respondents expert respirologist, was consistent
    with that conclusion. Aside from a reference to these physicians being called
    by the respondent at trial and a reference to an alternative hypothesis of
    neutrophilic asthma presented by Dr. Mate, there is no consideration of their evidence
    in the trial judges reasons.

[10]

The closest the trial judge comes to analyzing the defences medical
    evidence related to the RADS diagnosis is at paras. 42-43 of his reasons:

I agree that Dr. Chaimowitz aptly described the majority of the
    specialists views regarding the plaintiffs respiratory illness:

I do note fairly thoughtful and conflicting views about
    cause of his current respiratory presentation. The majority of those views seem
    to suggest that whatever predisposition he had to respiratory difficulties, or
    whatever respiratory difficulties he has had, the exposure to the ammonium
    phosphate from the fire extinguisher likely sufficiently irritated his airways
    that it caused a significant exacerbation in his condition sufficient that he
    likely developed RADS with only modest response to medications.

I would further concur with the view expressed by Dr.
    Chaimowitz that the most likely explanation is the one that seems the most
    obvious, which is that the plaintiff is a person whose previous reactive
    respiratory disease was exacerbated by the irritant from the fire extinguisher.

[11]

Proper reasons serve to:
(i)
    justify and explain the result; (ii) tell the losing party why he or she lost;
    (iii) provide for informed consideration of the grounds of appeal; and (iv) satisfy
    the public that justice has been done:
F.H. v. McDougall
, 2008 SCC 53, [2008] 3 S.C.R. 41, at
    para. 98.

For purposes of
    appellate intervention, the overarching principle is whether the reasons permit
    meaningful and effective appellate review:
Dovbush v. Mouzitchka
, 2016 ONCA 381, 131 O.R. (3d) 474, at
    para. 23.

[12]

With respect, the trial judges reasons are insufficient. There is no
    analysis of the evidence of the appellants experts who testified that the
    respondent does not suffer from RADS. Instead, he relies on an incorrect
    summary of the specialists views given by Dr. Chaimowitz, a psychiatrist, who mistakenly
    stated that the majority of the experts opined that the appellant likely
    developed RADS as a result of the incident and who was not, in any event,
    qualified to opine on the RADS diagnosis. While it was open to the trial judge
    not to accept the appellants expert evidence, his reasons had to demonstrate why
    he rejected it and that rejection had to be rooted in the evidence before him,
    otherwise his reasons would not be reasonably intelligible to the parties or
    amenable to meaningful appellate review:
Hearn v. McLeod Estate
, 2019
    ONCA 682, 439 D.L.R. (4th) 217, at para. 29.

[13]

Thus, the trial judge did not engage on the critical causation issue. The
    result is that this court cannot effectively review the trial judges reasoning
    process on this critical issue. This ground of appeal succeeds, and a new trial
    must be ordered.

(iii)

Non-Pecuniary General Damages

[14]

The appellant submits that the trial judge erred by awarding
    non-pecuniary general damages of $225,000 and in relying on foreign
    jurisprudence in making that award. Given our conclusion that a new trial is
    required, it is unnecessary to determine this ground of appeal.

(iv)

Disposition

[15]

The appeal is allowed, and a new trial is ordered. The costs of the
    appeal are payable to the appellant in the agreed upon all-inclusive sum of $22,500.
    The costs of the first trial are reserved to the judge hearing the new trial.

Paul
    Rouleau J.A.

C.W.
    Hourigan J.A.

L.B.
    Roberts J.A.


