



COURT OF APPEAL FOR ONTARIO

CITATION: Little v. Floyd Sinton Limited, 2019 ONCA 865

DATE: 20191104

DOCKET: C65495

Tulloch, Roberts and Miller JJ.A.

BETWEEN

Sarah Little, by her Litigation Guardian Kristina
    Dodds
and Kristina Dodds

Plaintiffs (Respondents)

and

Floyd
    Sinton Limited

Defendant (Appellant)

David A. Zuber and James
    B. Tausendfreund
, for the appellant

Paul J. Pape, Shantona Chaudhury, and Brodie Noga, for
    the respondents

Heard:  June 4, 2019

On appeal from the judgment of Justice Elizabeth A. Quinlan
    of the Superior Court of Justice, sitting with a jury, dated May 23, 2018.

ROBERTS J.A.:

[1]

The appellant appeals the judgment following a jury trial by which it
    was found 75% liable for the damages incurred by the then plaintiff and now
    respondent, Sarah Little. On Ms. Littles last day of Grade 8 she jumped from
    the back of a moving school bus operated by the appellant, Floyd Sinton
    Limited, and suffered catastrophic injuries. She was found 25% contributorily
    negligent.

[2]

Ms. Little was awarded damages in the amount of
$7,032,600
,
    plus pre-judgment interest and costs. The respondent, Kristina Dodds, Ms.
    Littles mother, guardian for care and property, and litigation guardian, was
    awarded $4,730.56 in damages for loss of care, guidance and companionship under
    the
Family Law Act,
R.S.O 1990, c. F.3, s. 61.

[3]

The appellant submits that the trial judge erred in her jury
    instructions on causation and the jury subsequently erred when making findings
    on this issue and the issue of contributory negligence. The appellant also
    argues that the trial judge erred by instructing the jury that mitigation was
    unavailable, as a matter of law, due to Ms. Littles lack of capacity to make
    decisions regarding her medical treatment. In addition, the appellant submits
    that the trial judge erred in failing to reduce Ms. Littles damages by the
    amount of statutory accident benefits she received prior to trial, as required
    by s. 267.8(4) of the
Insurance Act,
R.S.O. 1990, c. I.8. The
    appellant requests a new trial or alternatively that this court correct these
    alleged errors.

[4]

I would allow the appeal in part and remit for hearing to a judge of the
    Superior Court of Justice the question of whether past statutory accident
    benefits should be deducted from the damages awarded to Ms. Little. I would
    otherwise dismiss the appeal with costs to the respondents.

A.

Background Facts

[5]

This appeal focusses primarily on the wording of the trial judges jury charge,
    the jurys answers to questions, and the final judgment rendered. As a result, a
    brief summary of the relevant facts surrounding the accident and Ms. Littles
    damages will suffice.

[6]

Ms. Littles accident occurred on June 29, 2011, the last day of her
    Grade 8 school year, when she was returning home on the school bus. Ms. Little and
    her twin sister had taken the school bus to and from school for a number of
    years. Ms. Little had been trained as a bus patroller and was taught how to
    open the emergency door at the back of the school bus. Further, she understood
    that it was dangerous to jump from the back of a school bus when it was moving.

[7]

Nevertheless, on her last ride home in her Grade 8 year, Ms. Little
    decided to jump from the back of the school bus as it approached her home stop.
    This was in keeping with an informal tradition that had evolved among the
    graduating Grade 8 students at her school. Ms. Little was 13 years old at that
    time.

[8]

Ms. Little discussed the plan to jump with her sister and other students
    on the bus. Numerous students on the bus tried to dissuade her from jumping from
    the moving school bus, repeating to her what she already knew was a very
    dangerous act.

[9]

Ms. Little was described by the other students as being flustered or
    appearing like she was having an adrenaline rush in the moments leading up to
    the accident. As the school bus approached her home stop, when it was travelling
    approximately between 20 and 25 kilometres per hour, Ms. Little dashed to the
    back of the bus, opened the emergency exit door, which had to remain unlocked
    or the bus would not start, and jumped out of the bus.

[10]

After
    jumping out of the bus, Ms. Little fell and hit her head. She suffered a
    catastrophic head injury from which she will never recover. It is not in
    dispute that she is incapable with respect to her personal care and property and
    that she will likely never be able to work or live independently.

[11]

Following
    a four-week jury trial, Ms. Little was found 25% contributorily negligent for
    her injuries. The jurys assessed damages of $9,376,800 were therefore reduced
    to an award of $7,032,600 in damages, plus pre-judgment interest and costs.

[12]

The
    jury found the appellant 75% liable for Ms. Littles injuries because it
    failed to follow clear expectations as set out in their own handbook by its
    failure to report re-occurring unsafe acts. These acts consisted of Grade 8
    students jumping from the back of school buses on the last day of school. The
    unchallenged evidence is that one of the appellants bus drivers had reported
    students jumping from the school bus at the end of term between 2007 and 2009
    to the now deceased owner of the appellant. However, no report of these incidents
    was communicated to the school. This was contrary to the appellants handbook
    that required such incidents to be reported to the school. The principal of Ms.
    Littles school testified that if these incidents had been reported, proactive
    steps to curtail such activity would have been taken, including holding school
    assemblies to address the issue, and suspending bus privileges in the current
    and following years. She testified that an assembly was held following Ms. Littles
    accident and that, to her knowledge, no further students have jumped from
    school buses.

B.

Issues

[13]

The
    appellant takes no issue on appeal with the jurys finding that the appellant breached
    its standard of care. Nor does it dispute the nature and scope of Ms. Littles injuries
    and the quantum per se of the damages awarded as they relate to those injuries.
    However, the appellant submits that Ms. Littles damages should be reduced, or
    a new trial ordered, because of the errors that the trial judge made and because
    of jury errors that led to a liability verdict that was unreasonable and unjust.
    The appellant raises the following issues on appeal:


i.

In her charge to the jury, the trial judge misstated the law of
    negligence and causation. As a result, the jury made unclear causation findings
    and assessed the appellants proportion of liability higher and Ms. Littles
    proportion of contributory negligence lower than they would have otherwise done.
    The jurys verdict was therefore unreasonable and should not stand.


ii.

In her charge to the jury, the trial judge erroneously instructed the
    jury that as a matter of law they could not reduce Ms. Littles damages for a
    failure to mitigate by not implementing specific treatment recommendations.


iii.

Due to an oversight by the trial judge and the appellants trial counsel
    (not appellate counsel), the trial judge failed to reduce Ms. Littles damages
    by the amount of statutory accident benefits she received prior to trial, as
    required by ss. 267.8(4) and (8) of the
Insurance Act
.

C.

Analysis

(i)

Causation and Contributory Negligence

[14]

The
    appellant submits that the jurys verdict on liability was so plainly
    unreasonable and unjust that it should be set aside. From the appellants view,
    this unjust verdict resulted from the trial judges misdirection of the jury on
    the law of causation. In initially explaining the elements of negligence that
    Ms. Little had to prove, the trial judge instructed that Ms. Little had to
    demonstrate that she suffered damages as a
direct result
of the negligence
    of the defendants employee (emphasis added). This was an error, the appellant
    argues, because the test for causation is the but for test and damages need
    not be a direct result of the alleged negligence in issue. According to the
    appellant, its negligence could only be reasonably considered at best an
    indirect cause of Ms. Littles injuries because of its failure to report prior
    incidents of students jumping from school buses.

[15]

The
    appellant takes the position that the jurys answers to the Questions for the
    Jury illustrate the result of this error: the particulars provided by the jury
    of the appellants negligence included that [t]he plaintiff suffered damages
    as a direct result of the negligence which the jury indicated was the appellants
    failure to report the prior incidents.

[16]

The
    appellant further submits that despite being instructed to provide full
    particulars of Ms. Littles negligence, the jury only mentioned that Ms. Little
    was negligent because she knew it was against the rules to jump out of the
    emergency exit; the jury failed to mention that Ms. Little was negligent by
    jumping out of a moving school bus. The appellant submits that this omission is
    an error and led the jury to assess Ms. Littles contributory negligence lower than
    they would have otherwise.

[17]

I
    would not give effect to these submissions.

[18]

It
    is well established that a jury charge must be considered against the entire
    charge and the trial as a whole:
Surujdeo v. Melady
, 2017 ONCA 41, 410
    D.L.R. (4th) 538, at paras. 82-83;
R. v. Daley
, 2007 SCC 53, [2007] 3
    S.C.R. 523, at paras. 30-31. The question on appellate review is whether the
    charge provided the jury with adequate assistance to determine the questions it
    had to decide:
Samms v. Moolla
, 2019 ONCA 220, at para. 48;
Sacks v.
    Ross,
2017 ONCA 773, 417 D.L.R. (4th) 387, at paras. 81-86, leave to appeal
    refused, [2017] S.C.C.A. No. 491. In my view, the charge in this case served
    that function.

[19]

The
    trial judge clearly set out the different factors that led to Ms. Littles injuries,
    namely, the appellants failure to report the incidents and Ms. Littles decision
    to jump from a moving school bus. In the context of summarizing the parties
    respective positions, the trial judge explained how these factors related to
    the parties negligence theories. She correctly explained the difference between
    the issues of causation and apportionment of liability. She properly reviewed
    the but for test for causation.

[20]

There
    is no question that the jury was alive to the defence position that Ms. Little
    should be principally responsible for her tragic decision to jump from a moving
    school bus. It is noteworthy that in assessing Ms. Littles contributory
    negligence at 25% the jury rejected her argument that the appellant should bear
    80 to 90% of the fault.

[21]

I
    note, finally, that trial counsel for the parties drafted this portion of the
    charge and no objection was taken to it.

[22]

As
    the appellant correctly states, the standard of appellate review of civil jury
    verdicts is exceptionally high. A jurys verdict should only be set aside where
    it is so plainly unreasonable and unjust that no jury reviewing the evidence as
    a whole and acting judicially could have arrived at the verdict:
Stilwell
    v. World Kitchen Inc.,
2014 ONCA 770, 327 O.A.C. 146, at para. 33.

[23]

In
    my view, this standard has not been met in this case. The trial judge did not
    misdirect on causation and there was ample evidence to support the jurys
    verdict and apportionment of liability. As such, the liability verdict is
    reasonable.  There is no basis for appellate intervention.

(ii)

Mitigation

a)

Introduction

[24]

The
    appellant takes issue with the trial judges ruling and instruction that the
    jury could not make any reduction to Ms. Littles damages for a failure to mitigate.
    Failure to mitigate was pleaded in the statement of defence, and at trial it
    was argued that after Ms. Littles December 2015 suicide attempt, the
    respondents failed to follow medical recommendations that Ms. Little receive
    continuing psychiatric treatment and reside in a supervised group home.

[25]

The
    trial judges instructions on mitigation appear at paras. 150-154 of her
    charge. The appellant takes no issue with the trial judges general description
    of the concept of mitigation and of the appellants onus to prove Ms. Littles alleged
    failure to mitigate. Rather, the appellant takes issue with what the trial
    judge had to say at paras. 153-154:

I have decided
as a matter of law
that you cannot make
    any reduction to Ms. Littles damages for failure to mitigate. You cannot hold
    Ms. Little responsible for any failures on the part of her mother or treatment
    providers to implement treatment recommendations. As for Ms. Little, she was an
    adolescent and then a young adult diagnosed with a brain injury who, upon
    attaining adulthood, was assessed to be incapable of managing her personal care
    and her property. Accordingly, Ms. Little cannot be held responsible for her
    decisions as she was not capable of making decisions concerning her treatment.

In any event, there is no evidence to prove that Ms. Littles
    damages would have been reduced had she obtained the recommended treatment.
    [Emphasis added.]

[26]

The
    appellant submits that the trial judge erred by stating that, as a matter of
    law, the jury could not reduce Ms. Littles damages for a failure to mitigate.
    The appellant argues that the question of whether there was a failure to
    mitigate is one for the trier of fact to decide and there was sufficient
    evidence, as a threshold matter, for the issue to have gone to the jury.

[27]

As
    I will explain, I agree that the trial judge erred in removing the question of
    mitigation from the jury on the basis that, as a matter of law, Ms. Little did
    not have a duty to mitigate her damages because she lacked the capacity to make
    treatment decisions. However, I am satisfied that the trial judges error occasioned
    no miscarriage of justice since it would not have affected the trial outcome.

[28]

Assuming
    the recommended treatment would have been available to Ms. Little in the small
    window of time between her suicide attempt and the commencement of trial, there
    was no medical expert evidence that Ms. Littles prognosis would have been
    different and that her damages would otherwise have been reduced. Specifically,
    there was no evidence from a qualified medical expert that she would have been
    able to live independently and become financially self-sufficient. In the light
    of that conclusion, there is no need to consider the issue of whether Ms.
    Littles damages ought to be reduced for any failures of her mother, as her
    guardian of care, or other treatment providers.

[29]

Accordingly,
    I would decline the appellants request to exercise the discretion under s. 134
    of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 to order a
    rehearing, nor would I reduce Ms. Littles damages. For the reasons that
    follow, I am of the view that the appellant did not meet its onus to prove that
    Ms. Little has failed to mitigate her damages.

b)

Plaintiffs obligation to mitigate damages

[30]

As
    the appellant submits, it is a well-established principle that personal injury
    victims must take all reasonable steps to avoid the negative consequences of
    their injuries and prevent the accumulation of losses since a defendant is not
    responsible for damages that could have been reasonably avoided. Such steps may
    include undergoing reasonable medical treatments and tests. While this is
    commonly referred to as a plaintiffs obligation to mitigate, it is clear that
    this obligation is not onerous and that a defendant bears a heavy burden to
    prove a failure to mitigate.  See:
Janiak v. Ippolito
, [1985] 1
    S.C.R. 146, at pp. 163, 166-167;
Engel v. Salyn
, [1993] 1 S.C.R. 306,
    at p. 317.

[31]

The
    respondents do not challenge this general principle. However, they submit that
    Ms. Littles established incapacity to make health care decisions excused her
    from any obligation to mitigate because it would be manifestly unjust at law to
    penalize Ms. Little, who was an infant at the time of the accident and found to
    be incapable after she reached the age of majority, when her incapacity to make
    rational decisions was the result of the appellants negligence.

[32]

I
    agree with the appellants submission that Ms. Littles incapacity did not
    excuse her, as a matter of law, from mitigating her damages. The difficulty
    with the respondents submissions is that they conflate, as the trial judge erroneously
    did, the question of Ms. Littles obligation to mitigate her damages as a
    matter of law with the question of whether Ms. Littles incapacity affected the
    reasonableness of her decisions concerning recommended treatments as a matter
    of fact to be assessed by the jury.

[33]

In
    support of their position, the respondents seize on an isolated statement made
    by Wilson J. at p. 159 of
Janiak
that, it would appear manifestly
    unjust to cut off [the plaintiffs] recovery for failure to mitigate his
    damages through a rational decision as to treatment. In my view, the respondents
    reliance is misplaced. When the statement is considered in context, it is clear
    that Wilson J. is not determining
as a matter of law
that a plaintiff who
    is incapacitated as a result of the tortious act is
always

excused
    from his or her obligation to mitigate.

[34]

At
    the outset of her reasons, Wilson J., writing for the court, accepted the trial
    judges finding that Mr. Janiak was unreasonable in his refusal to accept the
    recommended medical treatment: at p. 151. However, she took the opportunity to
    discuss some of what she described as the difficult elements involved in a finding
    of unreasonableness: at p. 152. It was in that context that she discussed how the
    thin skull doctrine applies in assessing a plaintiffs refusal of medical
    treatment: at p. 152. She considered whether persons who have a pre-existing
    emotional or psychological infirmity must meet the objective test of
    reasonableness when their refusal of medical help is being assessed by the
    trier of fact or whether their subjective attributes may be considered: at p.
    154. In addressing that question, she made the comment that the respondents
    rely on at pp. 159-160 of her reasons:

I believe that Lord Justice Singletons concern in
Marcroft
    v. Scruttons, supra
, stemmed from his doubt as to whether the plaintiff in
    that case was capable of making a rational decision.  Not only that,
there
    was some indication in the medical evidence that his incapacity may have been
    itself a consequence of the trauma induced by the accident.  If this is so, it
    would appear manifestly unjust to cut off his recovery for failure to mitigate
    his damages through a rational decision as to treatment.
The reasons of
    Lord Justice Denning are even more baffling. He attributes the plaintiffs
    traumatic state after the accident to a pre-existing constitutional weakness
    and says it rendered the plaintiff incapable of making reasonable decisions.  Yet
    he concluded that this was a subjective factor that could not be considered. 
    This would appear to be carrying the objective test too far in that it overrides
    the thin skull principle altogether.  [Emphasis added.]

[35]

As
    I read this passage, Wilson J. is discussing the application of the reasonableness
    test and critiquing how it has been applied in English case law.  She is not purporting
    to make a blanket statement that, as a matter of law, any plaintiff who is
    incapacitated as a result of the tortious act is absolved of any obligation to
    mitigate his or her damages.

[36]

Moreover,
    Wilson J. states very clearly that the reasonableness question is a matter for
    the trier of fact. At p. 151, she notes that the reasonableness of the refusal
    to accept the recommended medical treatment is most appropriately left to the
    trier of fact to decide. And, again at p. 172, she reiterates that [t]he case
    law makes it clear that the question of whether a refusal of treatment is reasonable
    or not is for the trier of fact.

[37]

As
    Wilson J. concludes, the question of the reasonableness of a plaintiffs
    refusal of medical treatment recommendations is therefore best made by the
    trier of fact because it can appreciate the evidence first hand:
Janiak
,
at pp. 151, 172.  See also:
Engel,
at p. 316;
Brain v. Mador

(1985), 32 C.C.L.T. 157 (Ont. C.A.), at pp. 166-167.

[38]

As
    a result, I am of the view that the trial judge erred in the present case by removing
    the mitigation question from the jury as a matter of law on the basis that Ms.
    Little lacked the capacity to mitigate.

c)

Effect of the trial judges error

[39]

This
    courts authority to order a new trial or re-assess damages in appropriate circumstances
    comes from s. 134(1) of the
Courts of Justice Act
, which allows this
    court to: (a) make any order or decision that ought to or could have been made
    by the court or tribunal appealed from; (b) order a new trial; or (c) make any
    other order or decision that is considered just.

[40]

With
    respect to ordering a new trial, s. 134(6) cautions that an appellate court 
shall not direct a new trial unless some substantial
    wrong or miscarriage of justice has occurred.

[41]

The provisions of s. 134(6) highlight a stringent standard that
    reflects 
the underlying policy that new trials
    ordinarily are contrary to the public interest:
FL Receivables
    Trust 2002  A v. Cobrand Foods Ltd.
, 2007 ONCA 425,
85 O.R. (3d) 561, at para. 17. Because of the increased
    and wasted costs and delay caused by new trials; they should not be ordered
    unless plainly required by the interests of justice:
FL Receivables
    Trust 2002- A
, at para. 17.  No substantial
    wrong or miscarriage of justice can have occurred if the error would not have made
    any difference to the outcome of the trial:
Leader Media
    Productions Ltd. v. Sentinel Hill Alliance Atlantis Equicap Limited Partnership
,
2008 ONCA 463
, 90 O.R. (3d) 561, at paras.
    38-39, leave to appeal refused, [2008] S.C.C.A. No. 394;
FL Receivables
    Trust 2002  A
, at para. 22.

[42]

In
    my view, the appellant has not met this stringent standard. In the absence of medical
    expert evidence that Ms. Littles prognosis of disability would have improved
    and her damages would have otherwise been reduced had she obtained the
    recommended treatment, the trial outcome would not have changed.

[43]

As explained in
Chiu v. Chiu
, 2002 BCCA 618, 8 B.C.L.R. (4th)
    227, at para. 57, in a personal injury case, the onus is on the defendant to
    prove two things: (1) that the plaintiff acted unreasonably in not following
    the recommended treatment; and (2) the extent, if any, to which the plaintiffs
    damages would have been reduced had he or she acted reasonably. To discharge
    this onus, the defendant must point to the necessary evidence to raise failure
    to mitigate from speculation to reasonable inference:
Chiu
, at para.
    66.

[44]

According to the appellant, if the jury had been allowed to consider the
    mitigation issue, the jury could have found that if more reasonable steps had
    been taken after December 2015, Ms. Little could have received psychiatric
    treatment in the two years prior to trial and would therefore have reduced her
    damages, especially as both Dr. Sayed Mostafa Amir Shourideh-Ziabari (Ms.
    Littles family doctor) and Dr. Anthony Feinstein (Ms. Littles main psychiatric
    expert at trial) opined that Ms. Littles problems were predominantly
    psychological.

[45]

I do not accept these submissions.

[46]

In the present case, if the issue of mitigation had been put to the
    jury, the appellant would not have discharged its onus of establishing that there
    was a likelihood that the proposed treatment, if received in the two short
    years between Ms. Littles failed suicide attempt in December 2015 and the
    trial in November/December 2017, would have been substantially successful in
    eliminating or diminishing her prognosis of disability:
Ksiazek v. Newport
    Leasing Ltd.
(2006), 43 C.C.L.I. (4th) 238 (Ont. S.C.), at para. 105,
    affd 2010 ONCA 341, 84 C.C.L.I. (4th) 182. Specifically, there was no medical
    expert evidence that any delay in obtaining psychiatric treatment for Ms.
    Little or the failure to apply for admission to a group home would have made
    any material difference to her prognosis that she was incapable of living
    independently or becoming financially self-sufficient.

[47]

The medical expert evidence at trial suggested that a psychiatrist
    would be able to help alleviate some of Ms. Littles anxiety, depression, concentration
    issues, and further help manage her prescription medication, and that living in
    a group home would provide a safe, secure therapeutic environment away from
    tensions that had developed in her home. However, none of the medical experts
    testified that regularly seeing a psychiatrist or being admitted into a group
    home would have changed Ms. Littles prognosis of disability.

[48]

The only evidence that suggests psychiatric care may have assisted Ms.
    Littles prognosis came from Shauna Brown, who was qualified as an expert to
    give opinion evidence on life care planning, future care costs and vocational
    rehabilitation. Some of her testimony proposes that had Ms. Little received
    immediate psychiatric care in the form of hospitalization, she could have
    assimilated back into the community and may be able to live independently. In
    my view, Ms. Browns evidence is speculative on this issue because it was
    inconclusive and exceeded the scope of her expertise: since she is not a
    doctor, she was not qualified to offer an opinion on Ms. Littles medical and
    psychiatric prognosis.

[49]

It must be recalled that multiple medical experts emphasized that Ms.
    Littles case was complicated by myriad factors and that many of Ms. Littles conditions
    were interconnected. Moreover, Ms. Little was participating in multiple
    treatments recommended to improve her psychological problems. Although Ms. Little
    did not have a regular psychiatrist, she had received psychiatric treatment
    since her accident. She was on a waiting list to see a psychiatrist to whom she
    was referred by her family doctor. She took part in other forms of treatment
    that also served to alleviate her psychological symptoms. Ms. Little was seeing
    a rehabilitation support worker four times a week, participated in both dog and
    horse therapy, and received massage therapy. Ms. Littles family doctor was
    also managing her psychotropic prescription medications. In this factual
    context, it is not therefore surprising that none of the medical experts opined
    that any delay in obtaining further psychiatric treatment or residence in a
    group home would have materially affected Ms. Littles situation.

[50]

From a practical point of view, it is also important to note that there
    were long waiting lists for psychiatric treatment in the area where Ms. Little
    resided.  As a result, even if Ms. Little had immediately put her name on a waiting
    list, it is unlikely she would have received any of the recommended treatment
    before trial.

[51]

Again, the appellant had the onus of proving a failure on the part of
    Ms. Little to mitigate her damages. This onus is not a light one. The appellant
    had to establish, on a balance of probabilities, that Ms. Little acted unreasonably
    in failing to take steps to mitigate her damages. See:
Janiak
, at pp.
    163-166;
Branco v. Allianz Insurance Co. of Canada

(2006), 40
    C.C.L.I. (4th) 277 (Ont. S.C.), at para. 20. Merely suggesting that Ms. Little
    should have taken some other course of action is insufficient to meet this
    standard and criticism of a plaintiffs conduct must be viewed with caution. Instead,
    the appellant was required to bring forward reasoned and factually based
    evidence:
Branco
, at para. 21.  In my view, it failed to do so.

[52]

In conclusion, I am satisfied that no miscarriage of justice occurred
    from the trial judges error in failing to put the mitigation issue to the jury
    in the light of the fact there was no medical expert evidence that any delay in
    obtaining further psychiatric treatment or residence in a group home would have
    changed Ms. Littles prognosis of disability or reduced her damages. The
    appellant has failed to meet its onus to prove Ms. Little failed to mitigate
    her damages.

[53]

I would therefore reject this ground of appeal.

(iii)

Deduction of past statutory accident benefits

[54]

The appellant submits that the trial judge erred in failing to deduct Ms.
    Littles past statutory accident benefits from her award of damages in
    accordance with the mandatory provisions of ss. 267.8(4) and (8) of the
Insurance
    Act.

[55]

Sections 267.8(4) and (8) read as follows:

267.8(4) In an action for loss or damage from bodily injury or
    death arising directly or indirectly from the use or operation of an
    automobile, the damages to which a plaintiff is entitled for expenses that have
    been incurred or will be incurred for health care
shall be reduced
by
    the following amounts:

1.  All payments in respect of the
    incident that the plaintiff has received or that were available before the
    trial of the action for statutory accident benefits in respect of the expenses
    for health care.

2.  All payments in respect of the
    incident that the plaintiff has received before the trial of the action under
    any medical, surgical, dental, hospitalization, rehabilitation or long-term
    care plan or law.

267.8(8) The reductions required by subsections (1), (4) and
    (6)
shall be made
after any apportionment of damages required by section
    3 of the
Negligence Act
. [Emphasis added.]

[56]

While the reductions are mandatory, it is common ground that the parties
    may agree that they not be applied.

[57]

The appellant submits that through inadvertence, defence trial counsel failed
    to note this omission in the formal judgment. It was only when appellate
    counsel reviewed the file that this omission came to light. In support of this position,
    the appellant seeks to file as fresh evidence the affidavit of its trial counsel
    explaining his inadvertence. In response, the respondents seek to file as fresh
    evidence an affidavit from the respondents trial counsel in which he deposes
    that counsel agreed that past statutory accident benefits would not be deducted
    because past damages would not be claimed by Ms. Little. The appellants trial
    counsel denies that any such agreement was reached.

[58]

While I would admit the fresh evidence on appeal, in my view, this is
    not an issue that this court can determine. The parties respective versions of
    events are diametrically opposed. These respective versions of events are
    brought to this court primarily in the form of sworn affidavits. There is no
    written record of any agreement. The determination of this issue would
    therefore require this court to make findings of credibility, which, in my view,
    is not appropriate for an appellate court to undertake in these circumstances.

[59]

As a result, I would remit this issue for determination by another judge
    of the Superior Court of Justice since the trial judge has now retired.

D.

Disposition

[60]

For these reasons, I would allow the appeal in part and remit for
    hearing to a judge of the Superior Court of Justice the issue of the deduction
    of past statutory accident benefits. I would otherwise dismiss the appeal.

[61]

The respondents were largely successful on this appeal. I would award them
    their partial indemnity costs of the appeal in the amount of $30,000, inclusive
    of disbursements and applicable taxes.

Released: MT   NOV 04, 2019

L.B. Roberts J.A.

I agree. M. Tulloch
    J.A.

I agree. B.W. Miller
    J.A.


