*Since the writing of this blog the decisions has had additional reasons added.

In Girao v. Cunningham,2020 ONCA 260, the Court of Appeal was asked to decide if a self-represented Plaintiff had been denied justice in a jury trial based on how documents, medical diagnoses, and accident benefits settlements were dealt with.  Justice Peter Lauwers, writing for Justices Michal Fairburn and Benjamin Zarnett,  expounded on the role of counsel and the courts when dealing with self-represented litigants.

The case arises out of a motor vehicle accident which took place on June 19, 2002.  The trial occurred with judge and jury over four weeks in February and March 2017.  The Plaintiff was self-represented and required the use of a translator while the Defendants had two lawyers each.

Joint Trial Briefs

The first issue examined by the Court of Appeal was the Joint Trial Brief filed by the parties.  The court noted that the brief was not a “joint” brief in the usual sense as the Defendants had, at the last minute, provided the Plaintiff with a 16 volume trial brief.  The brief contained redactions of medical opinions favourable to the Plaintiff.  The Court of Appeal noted that it would be extremely unusual for a “joint” document brief to be filed where both parties agree to the purposes and validity of every document. Despite this, the trial judge accepted the brief in its entirety noting that rather than marking the documents first for identification and later determining admissibility, the judge assumed they were admissible and would redact documents found not to be admissible.  No redactions were made.

Aside from the trial fairness issues of late serving a 16 volume document brief (and the lack of gatekeeper function of the trial judge), the Court of Appeal laid a groundwork for preparing joint document briefs.  The Court of Appeal suggested a written agreement addressing six questions:

  1. Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents?
  2. Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?
  3. Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial?
  4. Are the parties able to introduce into evidence additional documents not mentioned in the document brief?
  5. Are there any documents in the joint brief that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document brief?
  6. Does any party object to a document in the document brief, if it has not been prepared jointly?

Expert Evidence from Participant and Non-party Experts

The Court of Appeal next addressed the use of expert evidence in the context of admissibility of reports under s. 35 and 52 of the Evidence Act.  The court held that as a preliminary issue on the admissibility of expert evidence, the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should exclude it; and the expert must be properly qualified.  If those four factors are met, the judge then has a responsibility to perform a gatekeeper function.

The court noted that s. 35 and 52 of the Evidence Act are exceptions to the hearsay rule that allows a party to enter into evidence business records or medical records created by participant experts (ex. treating doctors notes) or non-party experts (ex. Accident Benefits reports).  Records admitted under s. 35 of the Evidence Act do not allow the admission of opinions or diagnoses whereas records admitted under s. 52 do, with the caveat that the opposing party may call and cross-examine the author if it so chooses.  The Court of Appeal found that s. 35 is not the proper way to get medical evidence admitted for the truth of its contents.  Should a party wish to rely on a document containing a medical diagnosis or opinion for the truth of that opinion, they must enter the document pursuant to s. 52 and make the author of the report available for cross-examination.

Trial Use of Statutory Accident Benefits Schedule Settlements

Trial counsel frequently attempt to enter into evidence documents showing the compensation the Plaintiff received through their first party insurance.  In this case, the Court of Appeal discussed two uses for the information: lack of motivation to return to work; and, mitigation of future losses.  The Court of Appeal found that while both avenues are open to defence counsel, a determination of admissibility will be a matter of fact.  Settlement documentation must be relevant and its probative value must outweigh its prejudicial effect.   Entering the information to show a lack of motivation to return to work will be a higher bar than to show a failure to mitigate; however, the totality of the Accident Benefits settlement will rarely be admissible for the trier of fact in determining damages, even if that evidence might later be relevant to the trial judge for determining the proper credits available to the defendant at the end of trial.  

With respect to relevance, the Court states that defence counsel should include in their pleadings allegations of lack of motivation and failure to mitigate should they wish to place Accident Benefits settlements into the record.  Once pled with sufficient particularity, a voir dire will be held to determine if the allegation contains an air of reality and is supported by the evidence.

A trial judge must balance the probative value against the prejudicial effect with a mind to trial fairness.  The judge should consider that the jury may unduly reduce an award for damages on the basis of the settlement, despite the fact that the judge will subsequently be required to perform the same reduction in law at the end of the trial, thus creating a double reduction.  Moreover, the Court of Appeal repeated throughout the decision that the use of collateral entitlements premised on disability to support a finding of ability is “not only ironic but unfair”.  However, the Court also noted the overarching principal that “any time a court excludes relevant evidence the Court’s ability to reach a just verdict is compromised” Hunter v. Ellenberger (1988), 25 C.P.C. (2d) 14 (Ont. H.C.).  In the end it will come down to a trial judge’s discretion whether or not to admit the settlement documentation into evidence.  In this case, the Court of Appeal was critical of counsel’s repeated reference to the Plaintiff’s job as an office cleaner in the context of the accident benefit settlement, frequently suggesting that she was making more money as a result of the accident benefits settlement than she would have made “cleaning toilets”. 

The Role of Counsel and the Court with respect to Self-Represented Litigants

The Court of Appeal relied on the decision in Pintea v. Johns 2017 SCC 23, wherein the Supreme Court of Canada endorsed the Statement of Principles on Self-Represented Litigants and Accused Persons (2006).  The Statement of Prinicples states that judges have a responsibility to ensure a fair and impartial process and prevent unfair disadvantage to self-represented persons.  Judges can accomplish this by: allowing self-represented persons to fix easily rectified deficiencies in their case; by engaging in case management where appropriate; assisting to explain court processes; inquire as to their level of understanding; make referral to agencies able to assist in the litigation process; provide information on the law and evidentiary requirements; modify the traditional order of taking evidence; and, the Court states the trial judge may also question witnesses to assist self-represented litigants.  The Court of Appeal states that there is a limit to the assistance a trial judge can offer, they must not sacrifice the actuality and the appearance of impartiality.

Opposing counsel have a more limited duty to a self-represented litigant.  However, counsel also owe a duty as officers of the court, for instance, they are required to bring to the court’s attention any case that is directly on point that is not mentioned by an opponent.  Counsel may be called upon by a judge to provide briefs on issues (in this case, the interplay between s. 35 and s.52 of the Evidence Act).

Finally the Court of Appeal explored striking a Jury Notice in the context of a self-represented litigant.  The Court found the self-represented status of a litigant is a factor which may unduly complicate or lengthen a jury trial.  A trial judge may find it prudent to dismiss the jury.  Ultimately, the decision is, based on the evidence, whether justice would be better served by dismissing or retaining a jury.

Ultimately, the Court of Appeal concluded that this case needed to be remitted back for a new trial, where the issue of whether it be tried before a jury will be left to the new trial judge to determine.

Conclusion and Recommendations

The Court of Appeal has covered a significant segment of topics in this decision.  As a takeaway, counsel should be aware of how documents are submitted to the court for trial which may extend or lessen the uses of the documents.  Best practice would be to communicate with opposing counsel to agree on the documents and the scope of their use or to identify any areas of disagreement to be resolved at trial.  In particular, medical records will likely be required to be submitted through s. 52 of the Evidence Act with participant and non-party experts being made available for cross-examination.  It would appear that gone are the days where expert opinion evidence be admitted for the truth of the contents as a business record. 

With respect to SABS settlement documentation, the Court has settled some dispute in the lower courts as to the available uses for defence counsel.  Defence counsel should ensure that their pleadings specifically allege lack of motivation or future losses stemming from the settlement.  Plaintiff’s counsel should be prepared to point out the lack of pleadings as a preliminary issue, failing which they should prepare for a voir dire on the issue of the prejudicial effect.

When dealing with self-represented litigants, counsel can expect that practical considerations may take precedence over the right to a jury.  Moreover, the court may call upon counsel to provide non-partisan briefs to assist the court in making legal determinations. While this appears contrary to counsel’s duty to their clients, it appears the Court of Appeal has determined that the primary duty of counsel is to the court and to justice.

If you have a question about this decision or a similar file, please contact Eric Grossman at 416-777-5222