



COURT OF APPEAL FOR ONTARIO

CITATION: Mamado v. Fridson, 2018 ONCA 806

DATE: 20181005

DOCKET: C62419

Hourigan, Miller and Trotter JJ.A.

BETWEEN

Deyana Mamado

Plaintiff

(Respondent)

and

Franco Basso,
Allen Fridson and New Horizons
    Car & Truck Rentals Ltd.

Defendants

(
Appellants
)

Stephen G. Ross and Erin Crochetière, for the appellants

Jordan V. Katz and John J. Adair, for the respondent

Heard: October 3, 2018

On appeal from the judgment of Justice Deena F. Baltman of
    the Superior Court of Justice, dated February 23, 2017.

REASONS FOR DECISION

[1]

The respondent was injured in a car accident. She sued the appellants. Just
    before the trial, the appellants admitted liability. The trial proceeded as an
    assessment of damages before a jury. The appellants alleged that the respondent
    was malingering. They were ordered to pay substantial damages.

[2]

The appellants contend that the trial judge failed to properly address
    the transgressions of the respondents counsel at trial (not Mr. Adair or Mr.
    Katz). They complain that the trial judge unfairly summarized the evidence in
    her instructions to the jury, resulting in an unbalanced and unfair charge.
    Finally, the appellants allege that the trial judge displayed a reasonable
    apprehension of bias.

[3]

There is no merit in any of these submissions.

[4]

Many of the complaints on this appeal, which the appellants portray as
    grave wrongs, were not objected to at the time. Failure to object will not
    sanitize all imperfections in a trial; however, it is often a good indicator of
    harmless events.

[5]

By way of example, the appellants claim that trial fairness was
    sacrificed when the appellants psychiatrist, Dr. Reznek, was cross-examined on
    his knowledge of the extent to which the respondent was under surveillance. Dr.
    Reznek said he was aware of a very short amount of video surveillance.
    Counsel asked him whether he knew that surveillance occurred on 26 days over a
    4-year period, which he did not know. There was no objection to these questions
    when they were asked. When the issue was discussed during the pre-charge
    conference, objection was taken to its relevance, but not its accuracy. We see
    little, if any, prejudice in this evidence, the accuracy of which is not
    disputed.

[6]

Appellants counsel objected to the opposing counsels comments in his
    opening address about the late admission of liability. A mistrial was
    requested. Instead, the trial judge issued a correcting instruction. A similar comment
    was made by respondents counsel in his closing address. No objection was
    taken. Still, the trial judge instructed the jury that the timing of the
    admission was irrelevant. The trial judges responses were appropriate.

[7]

The appellants complain about how the trial judge framed the potential
    range of general damages. She reminded the jury that the respondents counsel said
    that the award could be as high as $197,000 but advised that he is not seeking
    that figure, and that the appellants suggested a figure in the range of
    $20,000. The appellants contend that this was unfair because it locked the
    jury into awarding a minimum amount of $20,000. Trial counsel objected to this
    language in the charge. However, during pre-charge discussions, she had advised
    the trial judge that she was not going to go in at zero and would be
    suggesting something around 20, 25 (thousand) to the jury. And she did. We
    fail to see the unfairness in the circumstances.

[8]

Some of the purported inaccuracies in the jury instructions are taken
    out of context. For example, the appellants argue that the trial judge told the
    jury that the respondent could not work or return to normal activities because
    of the accident and could not mitigate because she could not afford treatment,
    as if these were established facts the jury was required to accept. These were
    instances where the trial judge was summarizing the respondents evidence.
    Again, no objection was taken at the time. Moreover, the trial judge instructed
    the jury that it is up to you to weigh all of the evidence and you decide what
    the facts are. Later, she said, As I have said, you are the sole judges of
    the facts, not I.

[9]

The appellants argue that the trial judge showed a negative attitude
    towards the defence experts. We disagree. Any comments in the trial judges
    ruling on admissibility (
Mamado v. Fridson
, 2016 ONSC 4080) would not
    have been before the jury. In any event, we read nothing inappropriate in this
    ruling. Moreover, the trial judges comments in her instructions were accurate
    and balanced. She advised the jury of the proportion of medico-legal work (in
    terms of time spent or income earned) in the practices of Dr. Chen
    (respondents expert), Dr. Soric (appellants expert) and Dr. Reznek (appellants
    expert), and the proportion of that work performed for plaintiffs or defendants.

[10]

Over
    all, the trial judges conduct of the trial was fair and balanced.

[11]

Lastly,
    we turn to reasonable apprehension of bias. It is unclear why this ground of
    appeal was advanced. It adds nothing to the other complaints made by the
    appellants. It is always a serious matter to allege bias or reasonable apprehension
    of bias on the part of a judge. Such a claim amounts to an attack on the integrity
    of the judge. The appellants complaints do not come remotely close to satisfying
    the very high standard required to displace the strong presumption of
    impartiality of Canadian judges. We echo the comments from
Kelly v. Palazzo
(2008), 89 O.R. (3d) 111 (C.A.), in which Doherty J.A. said, at p. 117, that baseless
    allegations of bias or of a reasonable apprehension of bias do a disservice to
    the administration of justice.

[12]

The
    appeal is dismissed. On the agreement of counsel, the respondent is entitled to
    costs in the amount of $15,000 (inclusive of disbursements and HST).

C.W. Hourigan J.A.

B.W. Miller J.A.

Gary T. Trotter J.A.


