



COURT OF APPEAL FOR ONTARIO

CITATION: Dunk v. Kremer, 2018 ONCA 274

DATE: 20180320

DOCKET: C62361

Sharpe, Juriansz and Miller JJ.A.

BETWEEN

Meaghan Dunk and Shelby Dunk

Plaintiffs

(Respondents)

and

Geoffrey Michael Kremer, Matthew Rushton and
    Robert Rushton

Defendants

(Appellants)

Alan Rachlin, for the appellant

Paul J. Pape, for the respondent

Heard: March 15, 2018

On appeal from the judgment of Justice Susan E. Healey of
    the Superior Court of Justice, dated June 3, 2016.

REASONS FOR DECISION

[1]

In this personal injury action, the
    defendant-appellants admitted liability. The sole issue for the jury was
    damages. The jury awarded the respondent substantial damages for future loss of
    income and cost of medical care and $225,000 general damages for pain and
    suffering. This appeal concerns the general damages award.

[2]

As a result of a motor vehicle accident, the
    respondent suffered a fracture of her tibia and an intra-articular fracture of
    the right talus bone requiring orthopedic surgery. She testified that she had
    suffered considerable pain and restriction of movement as a result of the
    fracture. The medical experts agreed that she would likely require further
    surgery in the future and that she would suffer on-going pain and restriction
    of movement on account of arthritis in her ankle.

[3]

The appellants raise three grounds of appeal,
    arguing that the trial judge erred in:

(1)

restricting the scope
    of testimony of the appellants expert;

(2)

failing
    to declare a mistrial as a consequence of inappropriate closing submissions by
    the respondents trial counsel; and

(3)

failing
    to provide sufficient guidance to the jury on the appropriate range for
    non-pecuniary damages.

1.

Restriction on the testimony of the appellants
    expert

[4]

The appellants retained an expert but did not
    provide the respondent with a signed Rule 53 report until part-way through the
    trial. The appellants did not indicate that they would be calling their expert,
    Dr. Rizek, although they had given the respondent an unsigned copy of his
    report after the respondents orthopedic expert, Dr. Daniels, had testified,
    the appellants moved for an order permitting them to call their expert. The
    trial judge ruled that the expert could be called despite the non-compliance
    with Rule 53, but that he would be restricted to the four corners of his
    report. In particular, he would not be permitted to comment on developments
    that had arisen after he had prepared his report. The respondents experts had
    served supplementary reports in view of updated medical information and the
    appellants expert had not filed a response.

[5]

On appeal, the appellants say this order
    unfairly limited the scope of Dr. Rizeks evidence as he was unable to comment
    on Dr. Daniels oral evidence regarding the high probability the respondent
    would develop arthritis in her upper ankle joint necessitating a fusion of that
    joint as well leaving her quite disabled. Dr. Rizeks report had not
    addressed that matter.

[6]

This situation was largely the creation of the
    appellants and we see no error on the part of the trial judge in ruling as she
    did. The appellants were slow to deliver a proper Rule 53 report or to indicate
    that the expert would be called. They had the appellants experts supplementary
    reports well in advance of trial and failed to have Dr. Rizek respond. Dr.
    Daniels had already testified when the motion regarding the scope of Dr.
    Rizeks evidence was argued and the appellants made no reference on that motion
    to the problem they have identified on appeal regarding the upper ankle. Nor
    have they given any indication, either to the trial judge or to this court,
    what Dr. Rizek would have said about the upper ankle.  We are left to speculate
    as to whether any further evidence from Dr. Rizek would have assisted the
    appellants. As the trial judge observed, if Dr. Rizek were allowed to give
    evidence on developments not discussed in his report, it might require the
    respondent to split her case, recall her expert and incur significant additional
    expense and possible trial delay.

[7]

We agree with the respondent that this was a
    discretionary decision for the trial judge to make. She gave clear and cogent
    reasons in her ruling and we see no ground for appellate intervention.

2.

Respondents trial counsels closing address

[8]

The appellants submit that the trial judge erred
    by refusing to declare a mistrial following the respondents trial counsels
    closing address to the jury. As the trial judge found, the closing address of
    the respondents trial counsel, Mr. Marc Lemieux, was inappropriate and
    inflammatory in a number of ways. Of particular concern were counsels comments
    regarding the limitations of Dr. Rizeks evidence. Those comments were
    unwarranted and unfair in light of the trial judges ruling limiting the scope
    of his evidence, particularly given counsels acknowledgment on the record at
    that time that it would be inappropriate for him to make such comments to the
    jury.

[9]

The mistrial motion was argued for a full day
    and the trial judge explained in her reasons why she had concluded that the
    mischief of the closing could adequately be dealt with by a correcting
    instruction. She prepared and reviewed with counsel a detailed instruction
    touching on the most significant areas of complaint.

[10]

We certainly do not condone the respondents
    trial counsels conduct. His comments exceeded the limits of forceful advocacy
    and transgressed the line of what is acceptable. Conduct of this nature risks
    interfering with the integrity of the trial process and resulting in a mistrial
    with costs consequences that, in appropriate cases, might well have to be borne
    by the offending counsel.

[11]

On the other hand, we do not accept the
    contention that this court should interfere with the trial judges discretion
    not to order a mistrial but instead to instruct the jury clearly and strongly
    to disregard the objectionable parts of counsels closing. It is
    well-established that the trial judge is in the best position to determine
    whether a mistrial is required to deal with an inflammatory closing address. A
    mistrial is the remedy of last resort and the trial judges decision to deal
    with the matter by way of instruction rather than mistrial attracts deference
    in this court.

[12]

Here, the trial judge gave a very clear and
    strong instruction to the jury to disregard the problematic portions of
    counsels closing. The trial judge carefully itemized the objectionable aspects
    of the closing and clearly directed the jury to ignore those passages,
    explaining how and why counsel had gone astray. At the end of the day, we are
    not persuaded that when the record is considered as a whole, there was a
    miscarriage of justice requiring this court to order a new trial.

3.

Quantum of the pain and suffering award.

[13]

The appellant submits that the trial judge erred
    by failing to instruct the jury that the range for general damages suggested by
    the respondent, $175,000 to 225,000 was too high. The appellant further argues
    that the jurys award of $225,000 for general damages was so inordinately high
    as to warrant appellate intervention.

[14]

The trial judge discussed with counsel the
    ranges they intended to offer the jury before they made their closing
    addresses. Appellants trial counsel submitted that there was no authority to
    support the respondents proposed range. The trial judge observed that there
    was no case on all fours. In the absence of any authority that the respondents
    proposal was outside an accepted or established range, she declined to offer
    any comment. She did, however, modify her proposed charge by adopting some of
    the language suggested by counsel for the appellant.

[15]

We see no error. Again, this was a matter for
    the trial judges discretion. The respondent was only 18 years old at the time
    of the accident and there was evidence that it was going to cause her
    significant and serious long-term pain and impairment. She had already suffered
    several years of pain. The restriction imposed by the injury had caused her to
    alter her post-secondary education and career plans, and interfered with her
    day-to-day activities. It was likely that further surgery would be required and
    the respondent faced the prospect of increasing and indeterminate pain and
    impairment from arthritis as she aged. In these circumstances, the trial judge
    did not err in law in declining to comment on the range for general damages
    suggested by the respondents counsel.

[16]

Nor do we agree that the jurys award was so
    inordinately high as to call for appellate intervention. Given the deference
    accorded to jury damage assessments, the nature of the injury and the
    likelihood that, in the words of the appellants expert, that she would likely
    require further surgery in the future that would leave her quite disabled, 
    we conclude that there is no basis for this court to interfere.

4.

The Cumulative effect of the alleged errors

[17]

Finally, we have not been persuaded by
    appellants counsel submission that there is a synergy to the alleged errors
    and their cumulative effect warrants a new trial.

Disposition

[18]

Accordingly, the appeal is dismissed with costs
    to the respondent fixed at $30,000 inclusive of disbursements and applicable
    taxes.

Robert
    J. Sharpe J.A.

R.G.
    Juriansz J.A.

B.W.
    Miller J.A.


