) ) MARTA DAY Plaintiff – v. –, 2017 ONSC 7319

CITATION: Day v. Haiderzadeh, 2017 ONSC 7319 COURT FILE NO.: 13-1057 DATE: 20171207 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) MARTA DAY Plaintiff – and – HAROON HAIDERZADEH and MINAHAIDERZADEH Defendants ) ) ) ) ) ) ) ) ) Michael Sloniowski and Aron Zaltz, for thePlaintiff Roger Chown and Marie Hynes, for theDefendants ) ) ) HEARD: December 1, 2017 DiTOMASO J. RULING ON JURY QUESTIONS [1] The Plaintiff claims damages resulting from a motor vehicle accident on December 12, 2012. Liability is admitted and theonly issues are causation and damages.

At the conclusion of the case for both the Plaintiff and the Defendants, an issue was raised bycounsel, as to whether the proposed jury questions dealing with the Plaintiff’s future claims could be put before the jury for theirdeliberation. Those questions related to future loss of income, future care costs and future mileage expense to medical appointments. Plaintiff’s counsel advised the court that he had abandoned the claim for future housekeeping needs. This question would not be put tothe jury. [2] Marked as Exhibit 1 on the motion were the draft Questions for the Jury, which read as follows: 1.

At what amount, if any, do you assess the damages sustained by the Plaintiff as a result of the December 12, 2012 accident foreach of the following… c. Future loss of income? d. Future medical treatment? e. Future mileage expense to medical appointments? [3] The evidence in this civil jury case was completed on November 30, 2017, after six days (not including time spent for juryselection).

At the pre-charge conference conducted on December 1, 2017, counsel needed to know what jury questions would bepermitted before we continued with the pre-charge conference and vetted the summaries of position on behalf of the Plaintiff andDefendants, to allow counsel to prepare their closing submissions scheduled to be delivered on December 4, 2017. [4] I heard argument in respect of the jury questions. Counsel filed material in this regard. I issued an oral decision with briefreasons on December 1, 2017. I advised counsel that I would provide more detailed reasons in writing. These are my reasons.

GENERAL PRINCIPLES [5] In Johnston v. Walker, 2017 ONSC 370 , Charney J. delivered a ruling on a jury question regarding the value of theplaintiff’s lost earning capacity. A useful

summary of the applicable legal principles are summarized by Charney J. in paragraphs 3, 4and 5, as follows: [3] In M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCS 135 at para. 51, the Ontario Court of Appealaffirmed the general test to be applied to whether a question should be put to a jury: Whether a jury in a civil case should be asked to decide on a particular issue is a question of evidence. There must be “reasonableevidence” to allow a question to go to the jury. As Meredith J.A. stated in Milligan v. Toronto Railway (1908) 17 O.L.R. 530, [1908]O.J. No. 78 (C.A.) [at para. 50]:

Although the jury are the sole judges of fact they are such judges only in cases in which there is a reasonable question of fact to bedetermined. It is the duty of the Court to determine whether there is any reasonable evidence to go to the jury, upon any question of fact;and no such question can be rightly submitted to them until that question has been answered in the affirmative. [4] See also: Ayub v. Sun, 2016 ONSC 6598 at paras. 53 – 54. [5] The test has also been stated as follows (see Walker v. Delic [2001] O.J.

No. 1346 (S.C.J.): [A] question need not be put to the jury unless there is some evidence on which a jury, acting judicially in accordance with that judge’sinstructions on the law could reasonably make a choice in arriving at a finding.

DRAFT JURY QUESTION 1(c): FUTURE LOSS OF INCOME [6] The Plaintiff in the case at bar takes the position that there is evidence from which the jury could answer the questionregarding the value of her future loss of income, either on the basis of a forced early retirement or the loss of earning capacity. [7] The Plaintiff’s evidence is that at the time of the motor vehicle accident, she was a bus driver for Barrie Transit. Before theaccident, she had applied for a job as a bus driver with Mississauga Transit. After the accident, she continued to work for Barrie Transitwithout loss of time from work.

There is some issue as to whether or not she suffered a past loss of income in respect of a part time jobdriving for a limousine service. In any event, she was hired by Mississauga Transit as a bus driver and started driving for MississaugaTransit on June 4, 2013. She has continued to drive bus for Mississauga Transit while commuting from Barrie to Mississauga to do herjob. [8] In her evidence, she expressed her concern about continuing to drive for Mississauga Transit in future because of her injuriesand chronic pain which she claimed were caused by the December 12, 2012 motor vehicle accident.

She did not know when she wouldretire or if she would, or if, in fact, she would retire early. She only expressed a concern that she might do so. She is currently fifty-eight(58) years of age. She went on to testify that she had no intention to retire early. There was no evidence whether she would retire early,but continue working at some other job that did not involve driving a city bus. [9] Dr. Alpert, an orthopaedic surgeon, was called on behalf of the Plaintiff. He testified that persons with chronic painsyndrome generally reduce their work life expectancy by fifty percent (50%).

He went on to say that over the next three to four years,the Plaintiff might be expected to retire because of her chronic pain. [10] The Plaintiff takes the position that there is evidence from which the jury could answer the question regarding the value of thePlaintiff’s future loss of income, be it on the basis of future loss of income due to early retirement or future loss of earning capacity.

Theposition of the defence is that there was no evidence or sufficient evidence upon which to leave this question to the jury. [11] I find that there was no evidence or sufficient evidence to establish that the Plaintiff would have taken early retirement orwould have taken a different job at a lower salary. There was no evidence as to how long the Plaintiff could or would continue to drive abus for Mississauga Transit. She has been driving a bus continuously for Mississauga Transit since June of 2013. We do not know whenshe intends to retire.

Since the date of the accident, her income has increased, not decreased. Dr. Alpert was not qualified to givevocational or occupational expert evidence. He is neither a representative of the Plaintiff’s employer nor is he an economic loss expert. No evidence was presented in this trial regarding the present value of such a future loss, even if such a future loss existed. [12] I find that in this case, there was no evidence presented with respect of potential for other employment. There was noevidence regarding contingencies.

There was no evidence in respect of the reduction of the Plaintiff’s pension due to her earlyretirement. The evidence in respect of early retirement was vague. Although the Plaintiff’s counsel indicated to the court that he mightbe calling a witness from OMERS regarding the Plaintiff’s pension and presumably the reduction of her pension as a result of her earlyretirement, no such witness was called.

No witness was called on behalf of her employer, Mississauga Transit, to speak to heremployment status, her earnings, potential loss of income, the impact on her pension and other benefits and whether there was any loss atall, given the Plaintiff’s increase in income. [13] There was no vocational or occupational expert evidence in respect of the early retirement question or the future loss ofearning capacity question. The evidence of Dr.

Alpert was an anecdotal and speculative response and he was not qualified to opine onvocational issues. [14] There was no economic loss expert evidence, which would provide the jury with present value calculations of the future lossclaimed by the Plaintiff and the means by which the jury could quantify such a future loss. [15] I note, as did Charney J. in Johnston, supra, that the failure to provide expert actuarial evidence in connection with a loss ofincome or future loss of earning capacity claim is not necessarily fatal (see: Fiddler v.

Chiavetti, 2010 ONCA 210 at paras. 63 -65) and Johnston, supra, at para. 8). The standard of proof for such claims is the lower standard of “real and substantial possibility ofloss in the future” rather than on the balance of probabilities. However, the fact remains that regarding claims for future loss of incomeand loss of future earning capacity or claims for pecuniary damages and the same can be said for the Plaintiff’s claim for future loss ofincome due to early retirement (see: Hodgson v. Walsh, [1998] O.J.

No. 3286 at paras. 66 and 79), the onus still remains on the Plaintiffto prove these claims on the basis of the applicable standard of proof. [16] In this case, I find that it would be problematic to require a jury to try and calculate the future income loss either due to earlyretirement or earning capacity without a sufficient evidentiary foundation. [17] I find that in this case, based on the evidence adduced at trial, putting the question of future loss of earning capacity and futureloss of income due to early retirement to the jury would be to invite them to speculate and pull a dollar figure out of thin air (see:Johnston, supra, at para. 10).

In TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1 at para. 65, the Ontario Court ofAppeal commented upon the ability of a trial judge to quantify damages, which equally applies to a jury:

[I]t is not open to a trial judge to postulate a method for the quantification of damages that is not supported by the evidence at trial. Noris it open to a trial judge to employ an approach to the quantification of damages that the parties did not advance and had no opportunityto test or challenge at trial… To hold otherwise would sanction trial unfairness. [18] I am of the view that there must be some admissible evidence, upon which a jury properly instructed could find a claim andcalculate the claim for future income loss (see: Ayub v.

Sun, supra, at para. 62). [19] I find there is not sufficient evidence on which a properly instructed jury, acting judicially in accordance with the judge’sinstructions on the law, could reasonably calculate or quantify the Plaintiff’s future loss of income, either on the basis of early retirementor loss of earning capacity. Accordingly, the question regarding the future loss of income will not be put to the jury.

Draft question 1(d): Future Medical Treatment [20] This question relates to the Plaintiff’s future care costs. [21] The same overarching principles stated above regarding future loss of income equally apply in respect of the claim for futuremedical treatment or future care costs. [22] Again, the Plaintiff submits that there is a sufficient evidentiary foundation to leave this question to the jury. There areongoing chiropractic treatments. A retrospective view of the past pattern of chiropractic, massage treatments and medication speaks towhat is necessary and reasonable for future medical treatment or care costs.

The defence takes the view that there is no evidenceregarding what those future care costs would be. [23] Entitlement to compensation for future care costs requires medical justification. See: Foubert v. Song, 2012 BCSC 143, para.126. [24] There is evidence of the Plaintiff continuing with chiropractic treatments for years after the motor vehicle accident. There isan issue as to whether or not those chiropractic treatments were as a result of the December 12, 2012 motor vehicle accident. There is anissue as to the timing of those chiropractic treatments, in light of various steps in this litigation.

There is evidence from Dr. Alpert thatthe Plaintiff will require, in future, various modalities of treatment and further medication. [25] No vocational or occupational evidence was called by the Plaintiff to say what those future care costs would be. There was noevidence as to the nature and frequency of those treatments and medications in future. There was no costing in respect of those futuretreatments and no present value of those treatments as well. Where a trial judge did not reduce future care costs to a present value, thiswas held to be an error. See: Berube v.

Vanest, 1995 ONCA 1399 page 7. [26] There was no evidence by an economic loss expert to present value the future medical treatments, whatever they might be, orfuture care costs. [27] Simply put, there was no evidence to provide the jury with the necessary tools to determine what future medical treatmentsand care costs were reasonable and necessary. There was no evidence as to the frequency of those future treatments, over what period oftime and what medication would be required. Also, there was no evidence to quantify and present value those costs. [28] In El Khodr v.

Lackie, 2017 ONCA 716 at para. 22, the Ontario Court of Appeal held that where the costs of futureprescription medications were justified on the evidence, the jury ought to have been instructed not to award any sum for drug benefitsafter the Plaintiff reached the age of sixty-five (65). From that age forward, the Plaintiff suffers no loss because drug claims would becovered by the ODBP. [29] In my view, we do not even approximate this issue in El Khodr. Rather, the jury is left much in the same way as it would beleft regarding the future loss of income claim.

The jury is left to speculate, pulling a number out of thin air. [30] Again, I find there is not sufficient evidence on which a properly instructed jury, acting judicially, in accordance with ajudge’s instructions on the law, could reasonably calculate or quantify the Plaintiff’s future medical treatment or care costs claim. Accordingly, this question will not be put to the jury. DRAFT QUESTION 1(e): FUTURE MILEAGE EXPENSE TO MEDICAL APPOINTMENTS [31] The Plaintiff submits that there is sufficient evidence upon which this question ought to be left to the jury.

The Plaintiffsubmits that mileage from where she currently lives to Dr. Steciuk’s (chiropractor) office is less than five kilometres. There was noother evidence as to the cost of any such mileage. There was no costing as to the frequency of the Plaintiff’s attendances on health careproviders for medical appointments. Those providers have not been identified.

There was no indication other than the location of Dr.Steciuk’s office as to where these other providers are located, how often the Plaintiff would have to attend upon those providers, what thecosting would be and what the present value of the mileage expense would be. Rather, I find that the same reasoning regarding theprevious two questions also applies to this question.

This question, like the others, invites speculation on the part of the jury without asufficient evidentiary foundation. [32] I find there is not sufficient evidence on which a properly instructed jury, acting judicially in accordance with the judge’sinstructions on the law, could reasonably calculate or quantify the Plaintiff’s future mileage expense to medical appointments claim. Accordingly, this question will not be put to the jury.

DiTomaso J. Released: December 7, 2017