



COURT OF APPEAL FOR ONTARIO

CITATION: West v. Knowles, 2021 ONCA 296

DATE: 20210507

DOCKET: C66952

Feldman, Paciocco and Coroza
    JJ.A.

BETWEEN

Joshua West
and Robert West

Plaintiffs (
Respondent
)

and

Gordon Knowles and
Robin West

Defendants (
Appellant
)

Todd J. McCarthy, for the appellant

Christopher A. Richard and Katharine A.
    Book, for the respondent

Heard: March 11, 2021 by video
    conference

On appeal from the judgment of Justice David
    L. Edwards of the Superior Court of Justice, sitting with a jury, dated August
    6, 2019.

Paciocco J.A.:


OVERVIEW

[1]

Joshua West, the respondent in this appeal, was
    injured on June 5, 2010 while a passenger in a motor vehicle involved in a
    single vehicle accident. He sued the operator of the vehicle as well as its
    owner, Robin West, who is the respondents mother and the appellant in this
    appeal.

[2]

At trial, the respondent argued he was entitled
    to compensation for past and future income loss based on the premise that but
    for the accident he would have completed post-secondary education and secured
    employment at an elevated earning capacity.

[3]

A jury ultimately awarded the respondent over $1
    million, inclusive of interest and costs. Much of that award was for past and
    future income loss.

[4]

On appeal, the appellant asks this court to set
    aside the jury award and order a new trial on damages. She submits that the
    trial judge misdirected the jury on the test for causation and improperly excluded
    relevant evidence in relation to two expert opinions, errors which together resulted
    in an excessive damages award constituting a miscarriage of justice.

[5]

For reasons that follow, I would deny the
    appeal.

FACTUAL BACKGROUND

[6]

In the early morning of June 5, 2010, the
    respondent was the back-seat passenger in a vehicle owned by his mother, the
    appellant, and driven by his friend, Gordon Knowles. The vehicle left the
    roadway, struck a tree, and caught fire. The respondent was rendered
    unconscious. He was pulled from the burning vehicle by a passerby.

[7]

The respondent brought an action against Mr.
    Knowles and the appellant, seeking compensation for injuries he allegedly
    suffered in the accident. The respondent claimed he sustained a head injury
    which left him with a permanent serious impairment of certain cognitive functions.

The respondents alleged educational goals

[8]

At the time of the accident, the respondent was registered
    to start a two-year program at Niagara College in September 2010. This program
    was designed to qualify graduates for admission to Brock University. The
    respondents expressed goal was to finish at Niagara College, get his Bachelor
    of Arts degree from Brock University, and then become qualified to work as a
    teacher.

[9]

Around three months after the accident, the
    respondent began his studies at Niagara College. In his first year, he
    struggled academically and reported difficulty retaining information. The
    respondent dropped out of Niagara College during his second year and never completed
    his program.

[10]

In his claim, the respondent alleged that he
    would have completed his post-secondary education and secured commensurate
    employment but for the impairment allegedly resulting from the head injury he
    sustained in the accident. He sought damages for past and future income loss on
    the basis that his earning potential was limited by his failure to complete
    post-secondary education, a failure the respondent claimed was caused by the
    accident.

PROCEEDINGS AT TRIAL

[11]

The respondents claim was tried before a civil
    jury in April 2019.
[1]
Liability was admitted, but the appellant disputed the extent of the
    respondents head injury, arguing it was only a minor injury from which he had
    fully recovered.

[12]

The appellant also contested the respondents
    claim that but for the accident he would have attained his expressed
    educational goals. The appellants theory was that, based on the respondents poor
    academic and attendance record in primary and secondary school prior to the
    accident, he would not have completed his post-secondary studies and his career
    prospects would have been no better if the accident had not occurred.

The trial judges ruling during
    re-examination of the appellants expert

[13]

Dr. Elaine MacNiven, a neurologist, was the sole
    expert witness called by the appellant at trial. Dr. MacNiven expressed the
    opinion that the respondent had not suffered a permanent serious impairment
    from a head injury sustained in the accident. That opinion was based, in part,
    on Dr. MacNivens belief that the accident had only rendered the respondent
    unconscious for a few minutes or less.

[14]

During cross-examination, respondents trial
    counsel sought to discredit Dr. MacNivens opinion by suggesting that she had
    no information about how long the respondent had been unconscious.

[15]

In response to this line of cross-examination,
    appellants trial counsel re-examined Dr. MacNiven by asking her whether there
    was any information in the records she had consulted about a potential
    timeframe for the respondents loss of consciousness. She responded, I would
    say I dont have it all in front of my mind right now, but I would have [it] documented
    in my report. Appellants trial counsel then attempted to take Dr. MacNiven to
    page 103 of her expert report.

[16]

At this point, respondents trial counsel
    objected to his friends attempt to take Dr. MacNiven to a specific page of her
    report. He argued that appellants trial counsel was attempting to lead Dr.
    MacNiven to correct her with respect to prior inconsistent statements by
    showing her part of her report, which respondents trial counsel contended was
    not permitted during re-examination.

[17]

The trial judge allowed the objection. He ruled that
    appellants trial counsel was permitted to ask Dr. MacNiven whether there was
    anything in the report that would clarify her evidence or to look in her
    report to refresh her memory, but that he was not permitted to direct her to a
    specific page.

The trial judges ruling regarding the
    Statistics Canada report

[18]

The respondent called Stephanie Greenwald, an
    accountant, to give expert evidence at trial relating to the respondents
    economic loss. The appellant did not call an economic loss expert of her own
    but attempted to challenge Ms. Greenwalds evidence in cross-examination.

[19]

During his cross-examination of Ms. Greenwald, appellants
    trial counsel produced a seven-page report published by Statistics Canada
    containing data and conclusions linking post-secondary educational attainment
    to income levels (the Report).

[20]

After asking Ms. Greenwald a series of questions
    about the Report, appellants trial counsel asked the trial judge to have it
    filed as an exhibit. At this point, respondents trial counsel objected,
    arguing that the appellant had offered no evidence to authenticate the Report. Appellants
    trial counsel responded that since the Report was from Statistics Canada and Ms.
    Greenwald had relied on other Statistics Canada documents in her work, it
    would be helpful to the jury to have [the Report].

[21]

The trial judge deferred his ruling, commenting
    that he was not prepared, at that point, to admit the Report as an exhibit. He
    invited appellants trial counsel to further question Ms. Greenwald to get her
    to agree with the document and that its an accurate document from [Statistics
    Canada]. The trial judge then added, I might change my view.

[22]

Appellants trial counsel then asked further
    questions about the Report. During this exchange, Ms. Greenwald testified that
    she had never seen the Report before. After Ms. Greenwald agreed that the
    Report appeared to be an official document from Statistics Canada, appellants
    counsel again asked the trial judge to admit the Report into evidence by making
    it an exhibit. The trial judge declined to do so, noting that the Report had not
    been proven and that the witness [had] not relied upon [the Report].

The exchange between the parties during the pre-charge
    conference

[23]

On April 17, 2019, the trial judge provided
    counsel with a draft jury charge. The next day, during the pre-charge
    conference, appellants trial counsel raised the following concern about elements
    of the draft charge dealing with the respondents burden of proof with respect
    to past and future income loss:

MR. FITZPATRICK [appellants trial counsel]
: Paragraph 60. And its dealing with standard [of proof] between
    actual events and future hypothetical  In other words, the reasonable
    possibility [of a future loss] must be proven on a balance of probabilities. M
y concern was, Your Honour, earlier talks about balance of probabilities
    and then when we start talking about a different method of proof, my concern is
    that if the jury somehow doesn't tie that together and says, 'Okay, so this is
    not sort of balance of probabilities.' So that was my concern

As I say  I know what Your Honour is saying
    and I'm trying to think of a lay jury and what they would be taking from that. And
    if they thought that it was somehow different from the balance of probabilities,
    they may go off on a tangent.

THE COURT
: So 
    I'm going to repeat back to make sure I'm getting your point, but are you
    saying, in effect, that you would like to see a statement, for example, after,
    "You must then determine the actual likelihood of this occurring, a
    statement to the effect of, 'all of which must be proven in accordance with the
    balance of probability,' or, 'by a balance of probabilities?

MR. FITZPATRICK
:
    Something like that. Something like that.

THE COURT
: I understand
    your point.

[24]

The trial judge then solicited input from
    respondents trial counsel, who commented, in part, as follows:

MR. RICHARD [respondents trial counsel]
: I
also looked at that part [of the charge]
    carefully because in every case I have to kind of refresh my memory as to how
    the burden of proof works with respect to that. What I thought Your Honour was doing
    was trying to kind of correctly interpret the Supreme Court of Canada in
Athey
.
    So I thought that was the approach you were taking and they specifically in
Athey
cite hypothetical events and their comment is, Hypothetical events, such as
    how the plaintiffs life would have
proceeded without
    the tortious injury or future events, need not be proven on a balance of
    probability. So I had thought that that was what Your Honour was trying to
    reflect.

[25]

Appellants trial counsel then re-stated his
    concern as follows:

MR. FITZPATRICK
:
    [I]ts just that whenever I see the  balance of probabilities and then a
    different method of proof I think counsel and judges understand, but it might
    send a message to a jury. So  that was my concern about that part.

THE COURT:
Okay
    Ill think about that.

[26]

Following the pre-charge conference, the trial
    judge provided counsel with a further version of the charge in an email dated
    April 18, 2019. In his email, the trial judge stated, I have not had an
    opportunity to consider the issue raised by [appellants trial counsel] about
    the onus of proof issue, but thought that you may prefer to receive the draft
    sooner than later.

[27]

On Monday, April 22, 2019, the day prior to
    closing submissions and the formal jury charge, the trial judge sent another
    draft charge to the parties via email. In the email, the trial judge informed counsel
    that [u]nless I agree to further changes on Tuesday, this is the Charge that I
    plan to provide to the jury. The parties did not request further changes to
    the charge on onus of proof or causation.

The trial judges charge to the jury on the
    burden of proof and causation

[28]

The trial judges charge to the jury included the
    following instruction relating to special damages for past income loss:

In deciding what actually happened in the
    past, you must weigh the evidence and reach a conclusion on a balance of
    probabilities
. For anything that you decide is more
    probable than not, you should treat as certain.
When you are asked to
    determine what might have happened in the future, or what hypothetically would
    have happened in the past but for the injury, you must use a different method
    of proof. First, you must decide if the event is or was a reasonable
    possibility. You must then determine the actual likelihood of it occurring
.
    I will refer to this in more detail when I discuss special damages.



You cannot assess [past income loss] with
    absolute certainty and mathematical precision. The question requires you to
    predict, to some extent, what would have happened but for the accident and you
    are required to do that to the best of your ability on the evidence youve
    heard.

Significant to the [respondents] claim is his
    position that but for the accident, he would have completed a two-year program
    at Niagara College and then enrolled at Brock University in a four-year BA
    program, with one-year credit given to him because of his Niagara College degree.
    Or alternatively, he would have completed the Niagara College program and
    entered the workforce.



If you conclude that because of the injuries
    he suffered from the accident the [respondent] did not complete his
    post-secondary education, then the onus is on the [respondent] to prove, or in
    other words, the standard of proof by which the [respondent] must satisfy,
    changes with respect to the remainder of your consideration for past lost
    income.
The onus is not on the [respondent] to prove his lost income on the
    balance of probabilities. Instead, the [respondent] need only satisfy you on
    the evidence that there is a real and substantial risk or possibility of loss
    of past income to be entitled to damages under this heading
.

What you have to decide, then, is whether
    there is a real and substantial risk or possibility that the [respondent] suffered
    a loss of past income because of the injuries sustained
. The higher or more substantial the risk of the [respondent] suffering
    such a loss, then the higher the award he should receive.  However, in arriving
    at your assessment under this heading, you should exclude from your
    consideration any remote, fanciful, or speculative possibilities.
I repeat
    again, the burden is on the [respondent] to satisfy you that there is a real
    and substantial risk that he suffered a past loss of income by reason of the
    injuries he sustained
. [Emphasis added.]

[29]

The core of the trial judges direction to the
    jury on causation was as follows:

There is the burden of proof on the [respondent]
    to prove the [appellants] fault caused or contributed to the [respondents]
    injury. The test to establish that causation does not need to be applied too
    rigidly, nor must it be established with scientific precision. It is
    essentially a practical question of fact that can be best answered by ordinary
    common sense.



If the [respondent] has satisfied you that his
    overall condition resulted from the cumulative effects of the injuries
    sustained in this accident, and his pre-existing condition,
the [respondent]
    is nonetheless entitled to full compensation so long as you are satisfied on a balance
    of probability that the injuries sustained in the accident materially
    contributed to his overall condition
.

If you are not satisfied that the accident
    materially contributed to the overall condition
,
    then you should assess damages based only upon the nature and extent of the
    injuries directly attributable to the accident caused by the [appellants] negligence.

If the [respondent] has satisfied you that his
    overall condition resulted from the cumulative effects of the injuries
    sustained in the accident, his pre-existing condition, if any, and the injuries
    sustained after the accident,
the [respondent] is nonetheless entitled to
    full compensation so long as you are satisfied on the balance of probabilities
    that the injuries sustained in the accident materially contributed to his
    overall condition.

If you are not satisfied that the accident
    materially contributed to the overall condition, then you should assess damages
    based only on the nature and extent of the injuries directly attributed to the
    accident
. That is to say if the accident did not
    contribute to his final condition, you should segregate the injuries sustained
    in the accident and assess those damages in isolation from his pre-existing
    condition, if any, and his post-accident injuries. [Emphasis added.]

The jurys verdict

[30]

In response to the five questions, below, that
    the trial judge provided to the jury on the verdict sheet, the jury returned their
    verdict on damages as follows:

(1)   As a result of the June 5, 2010 motor vehicle accident, what
    amount, if any, would you assess for the respondents pain and suffering and
    loss of enjoyment of life?
Verdict: $160,000
.

(2)   As a result of the June 5, 2010 motor vehicle accident, has
    the respondent suffered a past loss of income for the period from June 5, 2010
    until the commencement of this trial?
Verdict: Yes
.

(3)   If the answer to question #2 is yes, at what amount do you
    assess this past loss of income?
Verdict: $50,000
.

(4)   Will the respondent suffer a future loss of income as a result
    of the motor vehicle accident of June 5, 2010?
Verdict: Yes
.

(5)   If the answer to question #4 is yes, at what amount do you
    assess the future loss of income?
Verdict: $500,000
.

ISSUES ON
    APPEAL

[31]

The appellant submits that the trial judge
    committed three errors that together resulted in a miscarriage of justice;
    namely, excessive damages awards for past and future income loss. Those
    alleged errors can be stated and approached conveniently as follows:

(1)   The trial judge erred in instructing the jury with respect to
    the causation test they were to apply;

(2)   The trial judge erred by unfairly curtailing cross-examination
    of Ms. Greenwald and denying the request by appellants trial counsel to have the
    Statistics Canada Report, on which he had questioned Ms. Greenwald, filed as an
    exhibit; and

(3)   The trial judge erred in refusing to allow appellants trial
    counsel to direct Dr. MacNiven to specific parts of her expert report during
    re-examination.

[32]

During oral submissions, the appellant advanced
    the additional argument that some of the passages in the jury charge contained
    an error in the description of the respondents onus of proof to establish past
    income loss. This issue was raised in the appellants supplementary notice of appeal,
    but ignored in her factum. Not surprisingly, the respondent did not address
    this issue in his factum. However, in the absence of objection by the
    respondent, and given the respondents readiness to address it during oral
    argument, I will address this submission as a fourth issue in this appeal.

[33]

As I will explain, I would reject all four
    grounds of appeal.

ANALYSIS

(1)

No Reversible Error Occurred in the Jury
    Direction on Causation

[34]

The appellant submits that the trial judge erred
    by directing the jury to apply the material contribution test when evaluating
    causation related to damages for past and future income loss. She argues that the
    trial judge directed the jury to apply a material contribution test, when
    they should have been directed to apply the but for test.

[35]

Even if the trial judge was wrong to use
    material contribution language, a point I need not decide, I would deny this
    ground of appeal. The appellant challenges the sufficiency of the jury
    direction, and with such challenges the question this court must answer is
    whether the jury would have properly understood the law at the end of the
    charge:
Pereira v. Hamilton Township Farmers Mutual Fire Insurance Co.

(2006), 209 O.A.C. 127, at para. 51 (C.A.);
Ross v. Bacchus
, 2015
    ONCA 347, 126 O.R. (3d) 255, at paras. 30-31;
Samms v. Moolla
, 2019
    ONCA 220, [2019] O.J. No. 1484, at para. 48.  For the reasons below, I am
    satisfied that, at the end of the charge, the jury would have properly understood
    that they were to apply the but for test in determining causation with respect
    to past and future income loss.

[36]

Without question, the trial judge used the
    language of material contribution in directing the jury on the issue of
    causation. The term material contribution appears several times in the
    charge. The appellant objects to all such references, but takes particular
    exception that the trial judge twice told the jury that the respondent was entitled
    to full compensation so long as they were satisfied on the balance of
    probabilities that the injuries sustained in the accident materially
    contributed to his overall condition.

[37]

The appellant grounds her objection to such
    language in the decision in
Clements v. Clements
, 2012 SCC 32, [2012]
    2 S.C.R. 181, at paras. 8-13 and 46. In that case, at para. 13, a majority of
    the Supreme Court of Canada affirmed that the test for causation is the but
    for test, and that the material contribution to the risk test applies only
    in cases where it is impossible to determine which of a number of negligent
    acts by multiple actors in fact caused the injury, but it is established that
    one or more of them did in fact cause it. The majority in
Clements
ordered a new trial because the trial judges reasons for decision left open
    the possibility that he had applied a material contribution to the risk test
    rather than the but for test in a case where there were not multiple tortfeasors:
    at paras. 50-54.

[38]

The respondent agrees that the but for test
    applies in the case at hand, a concession that is well-taken. As this court
    recognized in
Donleavy v. Ultramar Ltd.
, 2019 ONCA 687, 60 C.C.L.T.
    (4th) 99, at para. 69, the critical threshold  for the application of the
    material contribution to risk approach is the impossibility of proving which of
    two or more possible tortious causes is in fact a cause of the injury. It is
    the but for test [that] is generally applied in establishing causation in
    the tort of negligence:
Donleavy
, at para. 62. This would include
    cases such as the one before me, which involve the alleged acts of a single
    tortfeasor.
[2]

[39]

In resisting this ground of appeal, the
    respondent submits that the term material contribution can be used as an
    alternative way of describing the but for test. He relies, in part, on the
    pre-
Clements

decision in
Athey v. Leonati
, [1996] 3
    S.C.R. 458, at para. 41, where Major J. said, [t]he plaintiff must prove
    causation by meeting the but for or material contribution test. The respondent
    therefore submits that we should treat the references to material
    contribution in this jury charge as communicating the but for test.

[40]

Given my view that at the end of the charge the
    jury would have properly understood the law it was to apply, I need not consider
    whether it remains appropriate after
Clements
to use material
    contribution language in describing or applying the causation test. However, I
    do share the view expressed by van Rensburg J.A. in
Donleavy
, at para.
    72, that using material contribution language where the but for test
    applies is a potential source of confusion. Given that the phrase material
    contribution is used in the law of torts to describe a test that differs from
    the but for test, it may be prudent to avoid using the terms material contribution
    or contribution when describing the but for causation test.

[41]

Having said this, I will now explain why the
    trial judges reference to material contribution did not confuse the jury in
    this case.

The trial judge properly directed the jury to
    apply the but for causation test

[42]

The contest in question was whether the
    respondent had met his burden of establishing that but for the accident he
    would have finished post-secondary education, thereby elevating his earning
    power. The trial judge made it clear to the jury that, in order for the
    respondent to benefit from such a finding of causation when damages were calculated,
    the jury had to be satisfied that he would have completed post-secondary
    education if he had not been injured in the accident.

[43]

With respect to past income loss, the trial
    judge directed the jury that they must assess the amount that [they] consider
    the [respondent] might reasonably have earned for the period from the date of
    the accident, being June 5, 2010, to April 1, 2019,
had the accident not
    occurred
, and compare it to his actual earnings to determine whether [the
    respondent] suffered a loss of income to-date (emphasis added). He then told
    the jury expressly that this question required them to predict, to some
    extent,
what would have happened but for the accident
 (emphasis added).

[44]

The trial judge again used but for language in
    describing the respondents position that but for the accident, he would have
    completed a two-year program at Niagara College and then enrolled at Brock
    University in a four-year BA program. The trial judge also recounted the
    respondents position that he had suffered financial loss of income up to the
    date of the trial
because the injuries that he suffered from the motor
    vehicle accident prevented him from completing his educational plan

    (emphasis added). To determine if the respondent had proven his alleged past
    income loss, the trial judge then told the jury:

You must decide whether
absent the motor
    vehicle accident
, [the respondent] would have successfully completed his
    Niagara College course and found employment, or alternatively completed his
    Niagara College program and then gone on to be accepted into and successfully
    complete a BA degree at Brock University and then found commensurate employment.
    [Emphasis added.]

[45]

The trial judge subsequently instructed the jury
    on how to proceed if they were to conclude that
because of the injuries he
    suffered from the accident
[the respondent] did not complete his
    post-secondary education (emphasis added).

[46]

Each of these directions to the jury relating to
    past income loss required the jury to find the but for test to be satisfied.
    In these circumstances, I would hold that, despite the material contribution
    language in the charge, the jury would have properly understood that they were
    to apply a but for analysis in assessing causation for past income loss.

[47]

The trial judge then moved on to instruct the
    jury on future income loss. The trial judge directed the jury that their task relating
    to future income loss was to assess the difference, if any, between [the
    respondents] potential earning capacity
if he had not suffered the injury
and his actual earnings capacity (emphasis added). In order to comply with this
    direction, the jury had to apply the but for test.

[48]

I would therefore find that in assessing causation
    for the respondents alleged past and future income loss, the jury would have properly
    understood that they were required to apply but for reasoning, and no other
    form of reasoning. In my view, no reversible error occurred in the jury charge.

The appellant did not object to the causation
    charge at trial

[49]

Before leaving this issue, there is one further
    consideration worthy of mention. The appellant claims that her trial counsel objected
    to the trial judges material contribution instruction. I do not accept this.
    Appellants trial counsel raised concerns only about comments that the trial
    judge had made in his draft charge relating to the applicable onus of proof.

[50]

Nor do I accept that the exchange between the
    parties during the pre-charge conference, after appellants trial counsel
    raised his concerns about the onus of proof, amounted to an objection to the references
    to material contribution in the charge. The appellant submits that this
    exchange should have alerted the trial judge to his error in referring to
    material contribution. I need not decide whether, in the absence of an
    express objection, providing a trial judge with information that should alert
    the judge to an error in a jury charge amounts to an objection in law; there is
    simply nothing in the exchange in question that should have alerted the trial judge
    to reconsider his proposed causation charge.

[51]

Therefore, this is a case where the appellant
    challenges a jury charge in the absence of an objection at trial. Although not
    critical to the outcome of this ground of appeal, the absence of an objection
    supports my conclusion that no reversible error occurred. It is likely that
    appellants trial counsel did not object to the material contribution
    language because he recognized that the charge, when taken as a whole, posed no
    risk of leading the jury to misapply the law of causation on the issues that
    mattered.

[52]

Accordingly, I would find no reversible error in
    the jury charge.

(2)

No Error Occurred Relating to the Statistics
    Canada Report

[53]

The trial judge did not unfairly curtail the
    cross-examination of Ms. Greenwald, the economic loss expert called by the
    respondent, on questions arising from the Statistics Canada Report. Nor did the
    trial judge err by denying the appellants request to admit that Report into
    evidence as an exhibit. I would dismiss this ground of appeal.

[54]

It appears appellants trial counsel printed the
    Report out from the Internet. The Report had not been produced during
    discovery, nor was the respondent provided with advance notice that it would be
    adduced at trial. Evidently, it is the appellants position that the Report
    should have been admitted into evidence as proof of the correlation between
    education and income, so that the jury could then rely on the Report in
    quantifying the respondents income loss.

[55]

The appellant submits that the trial judge erred
    by unfairly limiting the cross-examination on an authoritative and public
    report, and by not making the Report an exhibit, which she argues was
    admissible under s. 32 of the Ontario

Evidence Act
, R.S.O.
    1990, c. E.23.

[56]

I see no merit in these arguments. The trial
    judge did nothing to curtail the cross-examination. Questions the appellants
    trial counsel attempted to ask using the Report were permitted. The
    cross-examination ended only when appellants counsel said, [t]hose are all my
    questions. Indeed, respondents trial counsel did not initially object when
    appellants trial counsel produced the Report and began using excerpts from it
    to cross-examine Ms. Greenwald. The objection arose only when appellants trial
    counsel attempted to have the Report entered into evidence as an exhibit.

[57]

Nor, in the circumstances, was the Report itself
    admissible. To show this, I need not address whether the trial judge was
    correct in excluding the Report because it had not been proven or shown to be
    authentic, although I am strongly inclined in that direction. I need not pursue
    this question because the trial judge was certainly correct in excluding the Report
    on the basis that the witness had not relied on it.

[58]

The law permits expert witnesses to be
    cross-examined using a published document, but the document itself does not
    become evidence unless the expert effectively incorporates it into their
    evidence by recognizing it as authoritative; in other words, by relying on the
    document: see
R. v. Marquard
, [1993] 4 S.C.R. 223, at pp. 251-52;
R.
    v. Anderson
(1914), 22 C.C.C. 455 (Alta. C.A.), at pp. 459-60.

[59]

Ms. Greenwald did not rely on the Report. She
    had never even seen the Report before. Although she expressed agreement with specific
    propositions put to her from the Report, at no time did she affirm the general
    accuracy of the Report or recognize the Report itself to be authoritative. Her agreement
    that the Report was published by Statistics Canada is not enough to treat it as
    having received her expert approval. Quite simply, the appellant did not
    establish a proper basis for the admission of the Report.

[60]

Section 32 of the
Evidence Act

does
    not assist the appellant. This provision was not cited before the trial judge. Even
    if it is now open to the appellant to rely upon s. 32 on appeal, that provision
    does not support the admission of the Report. Section 32(1) provides as
    follows:

Where a book or other document is of so public
    a nature as to be admissible in evidence on its mere production from the proper
    custody, a copy thereof or extract therefrom is admissible in evidence if it is
    proved that it is an examined copy or extract, or that it purports to be signed
    and certified as a true copy or extract by the officer to whose custody the
    original was entrusted.

[61]

I need address only one of the preconditions in
    s. 32(1) to show that it does not help the appellant. Assuming, without
    deciding, that a Statistics Canada report is a public document within the
    meaning of s. 32, the Report would only be admissible under s. 32(1) if it was
    produced from the proper custody. No such evidence was led.

[62]

In her appeal factum, the appellant also relies
    upon this courts decision in
R. v. St. Lawrence Cement Inc.

(2002),
    60 O.R. (3d) 712 (C.A.). That decision does not assist the appellant, either.
St.
    Lawrence Cement

deals with judicial notice of regulations, not
    judicial notice of reports issued by government agencies. Moreover, at no point
    was the trial judge asked to take judicial notice of the Report. Given that the
    Report was being offered to establish adjudicative facts (facts relevant in
    determining the factual dispute between the parties), it is most unlikely, in
    my view, that the principles of judicial notice would have supported admitting
    the Report, even had this avenue for admission been raised: see
R. v. Spence
,
    2005 SCC 71, [2005] 3 S.C.R. 458, at para. 62;
R. v. Perkins
, 2007
    ONCA 585, 228 O.A.C. 120, at paras. 38-39.

[63]

Finally, although a trial judge is entitled to mark
    a document that has been used during cross-examination as a lettered exhibit to
    assist the trier of fact in understanding the answers given during
    cross-examination, this is a matter of discretion. This trial judge was not
    asked to exercise that discretion; appellants trial counsel clearly asked him to
    make the Report an exhibit to be used as evidence in the case.

[64]

Accordingly, I would not accept this ground of
    appeal.

(3)

No Reversible Error Occurred During Dr.
    MacNivens Re-examination

[65]

When Dr. MacNiven was being re-examined, the
    trial judge refused to allow appellants trial counsel to direct the witness to
    specific parts of her expert report. Counsel apparently wished to do so to
    assist Dr. MacNiven in giving testimony in response to her cross-examination by
    the respondent. I see no error in this decision by the trial judge; he was entitled
    to make it. In any event, the appellant has not shown that this ruling caused a
    miscarriage of justice.

[66]

This episode concerned testimony Dr. MacNiven gave
    in cross-examination about the length of time the respondent had been
    unconscious as a result of the accident. The trial judge ruled that appellants
    trial counsel could ask Dr. MacNiven to look in her report, but he could not
    direct her to a specific page.

[67]

Appellants trial counsel accepted this ruling
    without further objection and responded that he thought he might be able to
    find the information he was seeking in an exhibit. He tried to do so without
    success. The trial judge then gave him the lunch break to continue his search.
    When the trial resumed, appellants trial counsel pursued other grounds of
    re-examination but did not return to the foundation for Dr. MacNivens premise
    that the respondent had been unconscious only a short time.

[68]

I see no error in what transpired. Given that
    Dr. MacNiven had indicated she could not recall, without examining her report,
    what information she had relied on relating to the respondents loss of
    consciousness, the trial judge was entitled to permit Dr. MacNiven to consult
    her report to refresh her memory. He was prepared to do so and invited appellants
    trial counsel to have Dr. MacNiven review her report for this purpose. Although
    other judges may have gone further and exercised their discretion, in the
    interests of trial economy, to permit counsel to direct the witness to a relevant
    location in their report, the trial judge was not required to permit this. His
    decision not to permit it was understandable in the circumstances. Indeed, appellants
    trial counsel sought to pinpoint the material he wanted Dr. MacNiven to consult
    before he had even asked her to examine her report to find the information in
    question.

[69]

In any event, the appellant has failed to
    establish that this ruling caused a miscarriage of justice. The trial judge
    gave appellants trial counsel other possible avenues to bring Dr. MacNiven to
    relevant parts of her report, if any, but those avenues were not taken.

[70]

Moreover, I have examined page 103 of Dr. MacNivens
    report, the page to which appellants trial counsel attempted to direct her. I see
    nothing in that page that would in any way have supported Dr. MacNivens belief
    that the respondent was unconscious for only a few minutes or less. Nor has the
    appellant produced any other evidence to support her contention that the expert
    report could have assisted Dr. MacNiven in overcoming the challenge made in
    cross-examination.

[71]

I would therefore reject this ground of appeal.

(4)

No Error Occurred in the Jury Direction on
    Standard of Proof

[72]

Unlike past events, hypothetical events, such as
    how a plaintiffs life would have proceeded absent a tortious injury, need not
    be proven on the balance of probabilities. Instead, hypothetical events must be
    given weight according to their relative likelihood:
Athey
, at para.
    27;
MacLeod v. Marshall
, 2019 ONCA 842, 148 O.R. (3d) 727, at paras. 17-18.

[73]

The appellant does not contest this proposition.
    However, she argues that past income loss is a past event, rather than a
    hypothetical event. She submits that the trial judge therefore erred in the
    passages reproduced above at para. 28 by instructing the jury that the respondent
    was entitled to compensation for past income loss if he established a real and
    substantial risk or possibility of loss of past income. The appellant argues
    that the jury should have been told that the onus was on the respondent to
    establish past income loss on the balance of probabilities.

[74]

I do not agree with the appellants conception
    of the law. Thorburn J.A. rejected the same argument in
MacLeod
, at
    paras. 17-18. The relevant general rule was put succinctly by J.E.D. Savage
    J.A. in
Gao v. Dietrich
, 2018 BCCA 372, at para. 34:

With respect to past facts, the standard of
    proof is the balance of probabilities. With respect to hypothetical events,
    both past and future, the standard of proof is a real and substantial possibility.

[75]

The rationale for these distinct standards is simple:
    what would have happened in the past, but for an injury, is no more knowable
    than what will happen in the future. The balance of probabilities standard is appropriate
    for past events which have actually occurred. However, it is too rigid when
    assessing, hypothetically, what would have occurred in the past if not for some
    tortious conduct. Instead, in such circumstances a lower, more flexible standard
    of real and substantial possibility applies.

[76]

The income the respondent would have earned between
    the accident and trial but for his injury is hypothetical. The trial judge was
    therefore correct to instruct the jury that they were to award the respondent compensation
    under this head of damages if there was a real and substantial risk or
    possibility that [he] suffered a loss of past income because of the injuries
    sustained or, in other words, that he would have finished school and earned
    more than he did up to the date of trial, had he not been injured in the
    accident.

[77]

Accordingly, I would dismiss this ground of
    appeal.

CONCLUSION

[78]

For all these reasons, I would dismiss the
    appeal and order costs on the appeal in the agreed upon amount of $20,000,
    payable to the respondent, inclusive of disbursements and HST.

Released: May 7, 2021 K.F.

David
    M. Paciocco J.A.

I
    agree. K. Feldman J.A.

I agree.
    S. Coroza J.A.





[1]
Mr. Knowles, the driver of the vehicle and the appellants
    co-defendant, did not participate at trial.



[2]
Although there were two defendants named in the respondents claim (the
    operator and the owner of the motor vehicle in which the respondent was a
    passenger), only the conduct of the operator is relevant to the causation
    inquiry, as the liability alleged against the appellant owner is vicarious.


