IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100526

Docket: 08 1095

Registry:
Victoria

Between:

Tania Nikole Evans

Plaintiff

And

Benjamin Eastwood
Metcalfe

Defendant

Before:
The Honourable Mr. Justice S.R. Romilly

Reasons for Judgment

A.  Issue

[1]          
This application follows a trial on the assessment of damages suffered
in a motor vehicle accident by the plaintiff, Tania Nicole Evans (Ms. Evans),
due to the negligence of the defendant, Benjamin Eastwood Metcalfe (Mr.
Metcalfe).  Liability was admitted by the defendant and the trial on the
assessment of damages was heard by myself sitting with a jury.

[2]          
The issues at bar arise out of the jury verdict and assessment of
damages.  At the end of this trial the jury found the total damages for the
plaintiff to be $17,200.  The jury further reduced this figure by 15% for a
failure to mitigate.  Judgment on this verdict has not yet been entered.

[3]          
The defendant applies to have the jury’s verdict entered as the Court’s
judgment in this action.  The plaintiff submits that the jury’s verdict is
legally unreasonable with respect to the finding of a failure to mitigate and
that I should therefore set aside the verdict and set the matter for retrial.

B.  Background

[4]          
During the trial, counsel for Mr. Metcalfe argued that Ms. Evans did not
take reasonable steps to mitigate the losses she allegedly suffered as a result
of the accident.  The most important evidence on this point was that of Dr.
Rocheleau.  In his first report (from 27 August 2007), he stated that:

The effects of this accident
should have diminished to the point where she could return to part-time
employment within two to three months and full-time employment in four to six
months.

[5]          
In his second report (from 11 January 2010), Dr. Rocheleau opined that,
although Ms. Evans had been out of the workforce for three and one- half years
at that point (apart from limited or short term employment), and although he
“did not expect her to be symptom free as she was not symptom free before the
accident, there is a reasonable expectation that she would be able to perform
at a higher level of physical ability than what has occurred.”  At the time of
his writing this second report Dr. Rocheleau was of the opinion that Ms. Evans
was fit for at least “sedentary to light employment”.

[6]          
Dr. Rocheleau also testified that Ms. Evans followed the advice of her
caregivers to her own detriment.  Dr. Rocheleau was of the opinion that the
treatments Ms. Evans underwent may have actually aggravated her injuries and
extended the recovery period.  There was no evidence that Ms. Evans failed to
follow any medical advice.

[7]          
In my charge to the jury I addressed the subject of mitigation, the
relevant portion of which reads:

In this case Counsel for Mr. Metcalfe suggests that Ms. Evans
did not take reasonable steps to mitigate or reduce the loss allegedly suffered
as a consequence of the accident.  When a plaintiff is wronged, he or she is
required to act reasonably to mitigate or lessen the loss.  No damages are
recoverable for any loss that Ms. Evans could have avoided through reasonable
action. In relation to this issue you will want to consider the extent to
which Ms. Evans followed the treatment recommendations made by her health
professionals.  You will also want to consider whether Ms. Evans’s efforts to
return to work were reasonable…

On this issue the burden of
proof rests upon Mr. Metcalfe.  Mr. Metcalfe must prove on a balance of
probabilities that Ms. Evans did not act reasonably.  Merely suggesting some
other course that Ms. Evans might have followed is not good enough.  Criticism
of Ms. Evans’s conduct by Mr. Metcalfe must be viewed with caution, as it was
Mr. Metcalfe who caused the damages in the first place.  Ms. Evans is not held
to a high standard of conduct in mitigation.  The law is satisfied if Ms. Evans
takes steps that a reasonable person would take in the circumstances to reduce
the loss

[Emphasis
added.]

[8]          
The jury pronounced its verdict on March 22, 2010.  The jury answered in
the affirmative to the question of whether the plaintiff had “suffered injury
or loss as a result of the April 4, 2006 motor vehicle accident.”  With respect
to quantum the jury found as follows under the specific heads of damages:

[9]          
In total this amounted to a finding of $17,300 total damages.  However,
in response to the question of whether the plaintiff had failed to mitigate her
damages the jury again answered in the affirmative and fixed that deduction at
15%.  This meant that the total damages to the plaintiff were to be reduced by
$2,595 to $14,705.

[10]       
Of note is that the award for special damages was reduced from
$25,051.96.

[11]       
Having set out the relevant background to my decision, I will now
canvass the law that I must apply.

C.  Law

1.   Mitigation

[12]       
A recent and clear statement of the test for failure to mitigate can be
found in the judgment of Justice Rice in Jopling v. Brodowich,
2009 BCSC 653 at para. 44:

[44}      The test for failure to mitigate by refusing to
undergo medical treatment is summarized in Fox v. Danis, 2005
BCSC 102 (aff’d 2006 BCCA 324, 228 B.C.A.C. 164), at paras. 35-37:

[35]      There is no dispute that
every plaintiff has a duty to mitigate his/her damages, and that the burden of
proving a failure to fulfil that duty rests with the defendant, the standard of
proof being the balance of probabilities: Janiak v. Ippolito, [1985] 1
S.C.R. 146.

[36]      In this case, the
Defendant submits that the Plaintiff failed to mitigate her loss in that she
failed to exercise as recommended by her family doctor.

[37]      To succeed in proving these submissions, the
Defendants must establish, on the balance of probabilities, that the Plaintiff
failed to undertake this recommended treatment; that by following the
recommended treatment she could have overcome or could in the future overcome
the problems; and that her refusal to take that treatment was unreasonable: Janiak
v. Ippolito, supra and Maslen v. Rubenstein (1993), 83
B.C.L.R. (2d) 131 (C.A.).

[13]       
This reasoning accords with my charge to the jury which I will restate
here:

In relation to this issue you
will want to consider the extent to which Ms. Evans followed the treatment
recommendations made by her health professionals.  You will also want to
consider whether Ms. Evans’ efforts to return to work were reasonable

[14]       
Therefore, the jury could find a failure to mitigate in two scenarios:

1)         Where
Ms. Evans failed to follow the treatment recommendations of her health
professionals, or:

2)         Where Ms. Evans’
efforts to return to work were unreasonable.

The onus to prove either of these is borne by the
defendant.

2.   Powers of the Trial Judge

[15]       
The leading case in this area is LeBlanc v. Penticton (City)
(1981), 28 B.C.L.R. 179 (C.A.), leave to appeal ref’d [1981] S.C.C.A. No. 38.  In
LeBlanc, Taggart J.A. canvassed the principles governing the
powers of a trial judge to reject a jury verdict in a civil proceeding. 
Justice Taggart held (at 184) that “a trial judge may refuse to accept the
verdict of a jury only where he concludes that there is no evidence to support
the findings of the jury; or where the jury gives an answer to a question which
cannot, in law, provide a foundation for judgment.”  These options stem from
the inherent jurisdiction of the trial judge with respect to questions of law.

[16]       
These powers are also supplemented by the Rules of Court:

RULE 41—ORDERS

(2)  Where, after any redirection
the court thinks appropriate, a jury answers some but not all of the questions
directed to it, or where the answers are conflicting, so that judgment cannot
be pronounced on the findings, the action shall be retried.

Justice Taggart found that this
provision meant that, for a jury verdict to be rejected, not only must the
answers be conflicting, but they must be so conflicting that “judgment cannot
be pronounced on the findings”.  Ultimately, and most importantly, Taggart J.A.
held at 189:

Having read and re-read the 1976 Rules and compared them with
the 1961 Rules and with the general principles governing trial judges in their
acceptance or rejection of juries’ verdicts, to which I have referred above, I
have reached the conclusion that the new rules do not restrict the ability of a
trial judge to reject the verdict of a jury, but that the principles I have
endeavoured to set out continue to have application and must be applied in
conjunction with the provisions of R. 41.  Thus, in my consideration of the
reasons given by the trial judge for rejecting the jury’s verdict, I propose to
be guided by the principle that a trial judge may refuse to accept the
verdict of a jury where he concludes that there is no evidence to support the
findings of the jury, or where the jury gives an answer to a question which
cannot, in law, provide a foundation for judgment; and to be guided by the
provisions of R. 41 and especially by the provisions of subr. (2) relating to
conflicting answers.

[Emphasis
added.]

In LeBlanc, Justice Taggart ordered the
jury verdict restored (at 193).  However, the Court of Appeal went on to find
the jury’s verdict to be unreasonable and varied the award:  (1981), 28 B.C.L.R.
205 (C.A.).  The power to remedy an award of unreasonable quantum is one that
exists on appeal only.

[17]       
Scrutiny of a jury verdict is limited; the powers of a trial judge are
not the same as those granted on appellate review.  Mackenzie J.A., in the latter
case of Balla v. I.C.B.C., 2001 BCCA 62 at paras. 9-10, 85
B.C.L.R. (3d) 70, clarified that, whereas Rule 41(2) or an error of law could
be used to scrutinize a verdict at the trial level, the “Nance test”
could be applied by the Court of Appeal.  This test – from Nance v. British
Columbia Electric Railway Company Ld., [1951] A.C. 601 (P.C.) – applies
on appellate review to assess “whether the sum awarded is inordinately low or
inordinately high.”  The remedies available from application of the Nance
test (by virtue of s. 9 of the Court of Appeal Act, R.S.B.C.
1996, c. 77) are broader than those available to the trial judge.  For
example, at para. 13 of Balla, Mackenzie
J.A. stated that on a successful application of the Nance test
the Court of Appeal may “substitute an award for the jury’s verdict that has
been set aside.”

[18]       
The Court of Appeal in Balla followed reasoning from Stewart
v. Shimpei (1995), 65 B.C.A.C. 113.  In both cases there had been a
finding of injury to the plaintiff but “nil” was awarded for non-pecuniary
damages.  Such an error was held to be an error of law such that the trial
judge had jurisdiction to correct it.  To illustrate this point, in Balla
at para. 12, Mackenzie J.A. stated:

[12]      In my respectful view, the
learned trial judge was in error in his conclusion that the findings of the
jury were not in conflict.  The trial judge distinguished the decision in Stewart
as “case specific”.  With respect I do not agree.  It is illogical to
conclude that a plaintiff was injured and suffered out of pocket expenses but
did not sustain any pain, suffering and loss of enjoyment, however transitory,
as a result of the injury.  The finding of injury and the award for special
damages cannot be reconciled.  Without any award for non-pecuniary damages, the
answers present a clear conflict.  The reasoning in Stewart is
not distinguishable.

[19]       
Whereas in Stewart the Nance test was
applied and a different award was substituted for that of the jury, in Balla
the Court of Appeal declined to utilize its broader discretion under s. 9
of the Court of Appeal Act and instead directed a new trial (I
note that this is the only remedy available under Rule 41(2)).

[20]       
I will depart here from the discussion of the Court of Appeal (which I
leave to a subsequent section) and will return to the powers of the trial
judge.

[21]       
The tests available to a trial judge were clearly laid out in Justice
Southin’s reasons in Johnson v. Laing, 2004 BCCA 364 at para. 14:

1.   Where there is no evidence to support the finding of the
jury.

2.   Where the jury gives an answer to a question which
cannot, in law, provide a foundation for judgment.

3.   Where the jury answers
some but not all of the questions directed to it.

[Rule 41(2)]

4.   Where the answers are
conflicting, so that judgment cannot be pronounced on the findings.

[Rule
41(2)]

[22]       
In Johnson, Southin J.A. extensively canvassed the history
of the powers of the Supreme Court.  Justice Southin retraced the law from days
prior to Matthew Baillie Begbie’s oaths of office as the first judge of the
Supreme Court of British Columbia in 1858 (see para. 50).  According to
Justice Southin, the first reported case where a jury verdict was set aside
occurred in Gray v. Macallum (1892), 2 B.C.R. 104.  At para. 85
of her judgment, Southin J.A. quoted (from Gray) the words of
Begbie C.J. writing then for the Divisional Court (at 106):

As regards the consideration of
the weight of evidence, it is surely unnecessary to do more than barely recall
the fact that it is peculiarly the office of the jury, and not of this Court,
to weigh the evidence, and that we could not on this ground set aside the verdict
unless it were wholly unsupported by evidence, or were contrary to such a body
of evidence, or rested on so slight a foundation as to make it obvious that the
jury were perverse or invincibly prejudiced.

This passage is interesting on more than a purely
historical level.  On my reading of the jurisprudence, these principles
continue to underlie the current state of the law:  a trial judge may not
substitute his or her own assessment of damages for that of the jury (see Johnson
at paras. 121-127).

[23]       
The tests from LeBlanc and Johnson were
cited by Justice Macaulay in the trial decision of Ramcharitar v. Gill,
2007 BCSC 561 at para. 8.  In that case, Justice Macaulay denied an
application to have the verdict of the jury set aside on the basis that the
jury’s answers conflicted (with respect to different uses of the term
‘negligence’).  Macaulay J. also held that, with respect to the argument that
there was “no evidence” for the jury to conclude that the injury at issue was
not caused by the defendant, at paras. 22-23:

… As the sole finder of fact, the jury is entitled to
accept all, none or part of the evidence put forward on behalf of the
plaintiff.  It is obvious that the jury rejected the evidence of the plaintiff
and his witnesses in its entirety.  Whether it was reasonable for the jury to
do so in the circumstances is a question potentially for the Court of Appeal
but, in my view, a trial judge may not reject such a finding.

[23]      This is not a case of a
jury making a finding that has no evidentiary basis which would be subject to
correction by a trial judge exercising his or her inherent jurisdiction.  In
substance, the plaintiff’s complaint is that the jury should not have answered
the second question in the negative, at least having regard to the apparently
undisputed evidence before it.  In my view, no trial judge could ever intervene
or reinstruct a jury in such a circumstance without saying, in effect, that his
or her view of the reliability of some, or all, of the evidence should prevail
over the view of the jury.

[24]       
Justice Sigurdson, in Horita v. Graham, [1997] B.C.J. No.
2880 (S.C.), also rejected an argument that there was no evidence for a
particular finding of the jury.  In Horita this argument was
advanced with respect to contributory negligence.  Sigurdson J. held that the
burden of proof was a necessary consideration in scrutiny of a jury’s verdict. 
Sigurdson J. perhaps puts it best himself, beginning at para. 44:

44 In these circumstances, I can only interfere
and refuse to accept the verdict of the jury if there is no evidence to support
it.  The law on this subject is clear and I have referred to it earlier.

45 In determining whether there is any evidence
that could be said to support the verdict of the jury, I think that it is
necessary to consider where the burden of proof on the issue in question lies.  For
example, the burden of proof on the issue of contributory negligence is on the
defendants (the party that asserted that proposition) whereas the burden of
proof on the issue of non-pecuniary damages is, of course, on the plaintiff.

46 From an analytical and theoretical
perspective, therefore, the question of whether the plaintiff has proven its
non-pecuniary loss is a different situation than that facing MacDonald J. in
McElroy v. Embleton.  In that case, the burden was on the defendant to prove
contributory negligence on the part of the plaintiff and it was decided by the
jury that burden had been discharged. MacDonald J. held that there was no such
evidence and the defendant simply could not have and did not discharge the
burden upon it. It would have been quite a different situation if the jury had
found that there was no contributory negligence and the trial judge was asked
to reject that verdict on the basis that there was no evidence to support it.

47 If a jury
refuses to find in favour of a party that has the burden of proof on an issue,
it might be suggested that it is an unreasonable verdict.  However, it cannot
be said to be a verdict for which there was no evidence when it is open to the
jury to reject the evidence of the party on whom the burden of proof rests.  As
the burden of proof with respect to non-pecuniary damages is on the plaintiff
and it is always open to a jury to reject some, all or part of a witness’
evidence, it is difficult to see how a jury award of zero for non-pecuniary
damages could be said to be based on no evidence.

[25]       
In this passage Justice Sigurdson mentions the judgment of MacDonald J.
in McElroy v. Embleton (1993), 81 B.C.L.R. (2d) 328 (S.C.).  In
that case, with respect to another automobile collision, the jury found the
plaintiff contributorily negligent in the amount of 15%.  The evidence in
support of this conclusion was argued by the defendant to be that of the
positioning of the plaintiff’s headrest at the time of the collision.  At para. 16,
MacDonald J. held that while it was true that there was some uncertainty as to
whether the head rest was “low” at the time of collision, the defendant had not
called any evidence that the positioning of the headrest in the “low position
would not provide adequate protection to the plaintiff against the type of
injury she incurred in this accident.”  The fact that there was “no reasonable
evidence” to support this finding was fatal (see para. 17).  The verdict
of the jury was entered, but the portion of the jury verdict finding
contributory negligence was struck.

[26]       
This reasoning found support on appeal:  Justice Southin, in obiter,
characterized the decision of MacDonald J. as a “sound
conclusion” before rejecting the appeal as to the general amount of damages:  (1996),
19 B.C.L.R. (3d) 1 at para. 7, 74 B.C.A.C. 304.  In his concurring
reasons, at para. 15, McEachern C.J.B.C. also stated his agreement with
the judgment of MacDonald J. as to contributory
negligence.

[27]       
The critical point to be made with respect to scrutiny of a jury’s
verdict by the trial judge is the avoidance of interference with the proper
function of the jury.  Trial judges are rightfully cautious when exercising
their inherent powers to scrutinize the verdict of a jury.  In most cases such
an argument may be – in actuality – that the damages granted were
inordinately low:  see, for example, Wright v. Hohenacker, 2009
BCSC 536, per B. Fisher J; and Ciolli v. Galley, 2010 BCSC
115, per Loo J.  Unreasonable awards of damages by juries (apart from
the tests in LeBlanc and Johnson) are matters for
the Court of Appeal and outside of the jurisdiction of the trial judge even
where they refer to failure to mitigate.  The reasoning of Joyce J. in Loughlin
v. Nichol, 2002 BCSC 1523 at para. 16, supports this:

[16]      The question as to the
extent by which the plaintiff’s damages should be reduced by reason of her
failure to mitigate is a matter within the province of the jury.  As the trial
judge I do not have any jurisdiction to intrude into that finding or refuse to
accept that finding simply because I might have come to a different conclusion
on the evidence.

3.   Retrial

[28]       
Retrial is the only remedy available under Rule 41(2).  However, through
exercise of inherent jurisdiction at the trial level, or, by virtue of the Court
of Appeal Act at the appellate level, other remedies are available. 
For example, at the appellate level these include substitution of the judgment
by the Court of Appeal (Stewart, Balla) and
remittance to the trial judge for re-assessment (Johnson).

[29]       
The following passage from Justice Southin’s judgment in Johnson
contains some important considerations:

[158]    Important though the
right of trial by jury in civil cases is thought to be, the Court must be
mindful not only of the cost of a new trial by jury but also both of the incon­venience
to the witnesses, both expert and lay, and the reproach the administration of
justice rightly suffers from delays its procedures inflict on litigants.  It is
now some seven years since the accident and five years since this action was
brought and the sooner it is ended the better.

Understandably, the defendant opposes the expense and
effort of a new trial.

4.   Appellate Intervention

[30]       
With respect to the unreasonableness of a jury’s verdict, much broader
remedial powers are granted at the appellate level by virtue of the Court
of Appeal Act.  For example, s. 9 reads in part:

9 (1)     On an appeal, the court may

(a)     make or give any order that
could have been made or given by the court or tribunal appealed from,

(b)     impose reasonable terms and
conditions in an order, and

(c)     make or give any additional
order that it considers just.

(2)        The court or a justice may draw inferences of
fact.

See also the above examples from Balla, Johnson,
and Stewart.

[31]       
With respect to scrutiny of the verdict of a civil jury, these powers
are exercised on application of the Nance test.  In Stewart
at para. 10, Prowse J.A. quoted the following passage from Nance at
613-614:

… Whether the assessment of damages be by a judge or a
jury, the appellate court is not justified in substituting a figure of its own
for that awarded below simply because it would have awarded a different figure
if it had tried the case at first instance.  Even if the tribunal of first
instance was a judge sitting alone, then, before the appellate court can
properly intervene, it must be satisfied either that the judge, in assessing
the damages, applied a wrong principle of law (as by taking into account some
irrelevant factor or leaving out of account some relevant one); or, short of
this, that the amount awarded is either so inordinately low or so inordinately
high that it must be a wholly erroneous estimate of the damage[…].  The last
named case further shows that when on a proper direction the quantum is
ascertained by a jury, the disparity between the figure at which they have
arrived and any figure at which they could properly have arrived must, to
justify correction by a court of appeal, be even wider than when the figure has
been assessed by a judge sitting alone. The figure must be "wholly out of
proportion" [Citations omitted].

[Emphasis
the same as that of Prowse J.A.]

[32]       
In Boota v. Dhaliwal, 2009 BCCA 586, Justice Garson
explored the application of this test and the limits upon it.  Garson J.A. stressed
the disparity necessary to justify appellate interference, relying on reasoning
that the award must not simply be “inordinately high” or “inordinately low” but
(at para. 9) “wholly out of all proportion”, “wholly disproportionate” or
“shockingly unreasonable”.

[33]       
Returning to Johnson, Justice Southin held that the trial
judge’s opinion on the measure of damages was helpful in the appellate court’s
assessment.  This passage was quoted in Boota and commented on by
Garson J.A., beginning at para. 58:

[58]      I turn now to the trial judge’s reasons in which
she concluded that the jury’s findings on the issue of past income loss was an
error of law and the balance of the verdict was inordinately low.  The
appellant sought the trial judge’s “opinion on the reasonableness of the jury’s
verdict” in reliance on the dicta of Madam Justice Southin in Johnson v.
Laing, 2004 BCCA 364, 242 D.L.R. (4th) 48 at paras. 140-143, 157, 159 which
I now reproduce:

[140]    … On an appeal, where
the court is faced with a jury verdict that contains an error of law, and the
trial judge has declined to remedy the error or has erred in applying a remedy,
what steps may the court of appeal take to remedy the situation?  May the
court:

a.         remedy
the apparent error by substitution of an assessment of damages for the jury’s
verdict;

b.         remit
the matter to the trial judge for reconsideration and assessment of damages in
accordance with directions; or

c.         order
a new trial on a limited issue (for example, assessment of damages).

[141]    This question only arises
if this Court concludes that the jury’s verdict was “unreasonable” or, in the
words of Duff C.J. in McLean v. McCannell, supra, “that no jury
reviewing the evidence as a whole and acting judicially could have reached it.”

[142]    The learned trial judge
did not put it so but that is what I infer he meant when he said at para. 4, supra
para. 13:

… it would have been difficult to conclude on the evidence
that the back injury did not amount to a loss of employability that would
sustain an assessment of future wage loss.  The evidence would also
indicate that the assessment of general damages was inordinately low.

[143]    I have found it most
helpful to have the learned trial judge’s opinion on the reasonableness of the
verdict which the Court would not have had but for the appellant’s opposition
to the motion for judgment.  I do not know why it is that when a question of
the reasonableness of the verdict arises, this Court does not make a practice
of consulting the trial judge.  Lindley L.J. followed that course in Allcock
v. Hall, supra para. 104, obviously without any qualm as to its
propriety.  That the trial judge’s opinion could not bind the court does not
deprive it of utility.

[157]    I have concluded, although
not without some hesitation, that s. 9(1)(c) [Court of Appeal Act,
R.S.B.C. 1996, c.77] does empower this Court to remit a cause to the trial
judge to assess the damages on the evidence at the trial before him in
circumstances such as these, and that, in this case, the Court should do so.  The
learned trial judge has the great advantage of having seen the witnesses,
especially the appellant.

[159]    I would therefore allow
the appeal accordingly.  The appellant shall have the costs of the appeal.  The
costs of the first trial and of the assessment of the damages are remitted to
the learned trial judge.

…

[59]      The trial judge obliged the appellant by providing
her views.  Counsel for the appellant asked this Court to express its view on
the propriety of reasons for judgment expressing the trial judge’s views on the
verdict.  Such views if stated would be obiter dicta, as they were in Johnson
v. Laing.  I prefer to say nothing further on this point as no live issue
respecting the issue is before us, and we did not hear argument on the
question.  Neither counsel suggested that the trial judge’s opinion was in any
way binding on us.

[60]      It may be helpful to
counsel to note that the issue has been considered by at least three judges in
the Supreme Court of British Columbia, aside from this case.  On each occasion
the trial judge declined to offer the opinion sought.  See Muis v. Alekson
(1965), 53 W.W.R. 255 (Nemetz J. in Chambers); Force v. Gibbons (1978),
9 B.C.L.R. 144, 93 D.L.R. (3d) 62; and Doell v. McKay, 2004 BCSC 1502,
34 B.C.L.R. (4th) 191.  I found the trial judge’s opinion, concerning the
fairness of the trial, useful.  However, I do not suggest that it is incumbent
on a trial judge to provide such reasons.

[34]       
In Boota, the trial judge had acceded to the request for
an opinion.  On appeal, Justice Garson took into account the trial judge’s
opinion that the jury’s award contained errors of law, was inordinately low and
deliberated over too small an amount of time for consideration of the medical
evidence (at para. 6).  Notwithstanding this, Garson J.A. stressed that
the question to be answered was:

[12]      Consequently the task
of this Court is to review the evidence in order to determine whether the jury
acting judicially could have taken the view it did of Mr. Boota’s claim of
injury, pain, and suffering, past disability from employment, and future loss
of earning capacity.

On this ground of appeal,
Garson J.A. ultimately concluded that:

[36]      I
therefore respectfully disagree with the trial judge’s opinion no jury could
have reached the verdict the jury reached.  It may not be in accordance with
the trial judge’s view of the evidence, but the jury was the trier of fact, and
it is the jury’s view that is important.  I emphasize that this Court’s
appellate function is not to weigh the evidence, but to ascertain if the jury
reviewing the evidence as a whole and acting judicially could have reached its
verdict.  After reviewing the evidence as a whole, I conclude there was
evidence capable of supporting the verdict.

[35]       
As a result of Boota it is likely that – although it
possesses broad powers of intervention – the Court of Appeal will
intervene in jury awards rarely, and only in situations where the disparity and
unfairness is blatant and obvious:  where the award is “wholly out of all
proportion” or “shockingly unreasonable”.

D.  Discussion

[36]       
To reiterate:  the tests available for scrutiny of a jury verdict by a
trial judge are limited to the following:

1)         Where there is no
evidence to support the finding of a jury.

2.         Where
the jury gives an answer to a question which cannot, in law, provide a
foundation for judgment.

3)         Where Rule 41(2)
applies because either:

a.   the jury answers some but not all of the questions directed to
it; or,

b.   the answers are conflicting, so that judgment cannot be
pronounced on the findings.

[37]       
Any other powers to scrutinize the verdict of a jury are available only
at the appellate level by virtue of the test from Nance.

[38]       
In the case of Ms. Evans, the jury answered all the questions available
to it and none of these answers can be said to be conflicting such that
judgment cannot be entered (per Taggart J.A.’s reasoning in LeBlanc). 
It would not be perverse in the logical sense – as Southin J.A. used the
term at para. 18 of Johnson – to say that damages can
be reduced by a failure to mitigate.  Such a finding is quite common.  As a
result, Rule 41(2) is inapplicable.

[39]       
As regards the inherent jurisdiction of a trial judge, two findings of
the jury are problematic:  the finding of a failure to mitigate and the
reduction of special damages.  The question I will address is whether there was
evidence for the jury to make these findings (1 above).

1.   Failure to Mitigate

[40]       
It can be inferred from the verdict that the jury accepted Dr.
Rocheleau’s opinion that Ms. Evans could have returned to work within a few
months.  This is reflected in the damages awarded for past loss of income.

[41]       
However, the jury’s holding of a “failure to mitigate” beyond this rests
on an uncertain evidentiary foundation.  On the basis of my charge (with which
no issue has been taken), for this finding to accord with the law it must
reflect that Ms. Evans either failed to follow the “treatment recommendations
made by her health professionals” or failed to make “reasonable” efforts to
return to work.  The burden of proof in this respect lies with the defendant.

[42]       
The most damning evidence in regard to this issue comes from Dr.
Rocheleau.  That evidence is that Ms. Evans could have returned to part-time
work within two to three months and full-time within four to six months.  It
was not open to the jury to conclude that Ms. Evans could have returned to work
immediately; no evidence was led in that regard.  However, it was open to the
jury to conclude that she could return in a short period of time, and that is
essentially what they did:  $10,300 represents a short period of time out of
work.

[43]       
However, I reiterate that there was no evidence that Ms. Evans could
have returned to work any sooner than a few months.  That said, Ms. Evans could
not have mitigated by working at a time when even the most positive medical
assessment felt her unable to do so.  Such a finding is contrary to the
evidence.

[44]       
A finding of liability for an amount of time which would accord with the
$10,300 figure was the worst case scenario for Ms. Evans.  No reasonable
efforts could have returned her to work prior to when she was able.  There was
no evidence that Ms. Evans was able to work prior to (at the earliest for
full-time work) four months after the accident:  the defendant did not produce
evidence of a failure to mitigate within this period.

[45]       
Returning to my charge, to make a finding of a failure to mitigate, the
jury was to consider “the extent to which Ms. Evans followed the treatment
recommendations made by her health professionals.”  Dr. Rocheleau gave evidence
that the treatments Ms. Evans underwent may have been detrimental to her
recovery.  However, no evidence was before the jury that Ms. Evans did not
follow the directions and treatment orders prescribed by her health
professionals.  The reduction in special damages is questionable on this basis
as well.

[46]       
The jury clearly did not accept much (if any) of the plaintiff’s
evidence as to her damages; this cannot be scrutinized at the trial level. 
However, the defendant bore the onus to prove a failure to mitigate and did not
do so for the period in question (the time even Dr. Rocheleau accepted the
plaintiff could not work).  Put bluntly, the jury’s findings on quantum of
liability appear to have reached a punitive level against Ms. Evans.  However,
while it is open to the jury to disbelieve a plaintiff and their evidence, it
is not open to the jury to make findings contrary to the evidence before it.

[47]       
After the jury has issued its verdict but before judgment has been
entered, it is within my inherent jurisdiction to correct the finding of a
failure to mitigate if it is based upon no evidence: LeBlanc, Johnson,
Ramcharitar.  In this respect I am offered remedial guidance by
the judgment of MacDonald J. in McElroy (and by subsequent
treatment by the very learned panel of the Court of Appeal).  I will therefore
strike the jury’s finding of a failure to mitigate from the judgment to be
entered.

2.   Special Damages

[48]       
The basis for the reduction in special damages awarded to Ms. Evans also
suffers from a lack of evidence in support.  No evidence was led that any of
these expenses were unreasonable such that they should not be compensated by
the defendant.  I have not encountered remedial assistance on this particular
point.  Whereas I would enter an award for the whole of those damages claimed,
I cannot substitute my assessment for that of the jury.

[49]       
The jury has been discharged and I am of the opinion that a redirection would
be futile in any event.  My remedial powers at this stage are limited; as a
result I feel that this matter is better left to the Court of Appeal.

3.   Retrial

[50]       
I do not think that this is an appropriate matter for retrial.  I
recognize that had I found Rule 41(2) to be applicable this would be the only
remedy available.  In my view, on the basis of the law as I understand it, the
remedy of retrial is available to correct errors through inherent
jurisdiction.  However, I do not think it wise to subject the parties to the
expense and effort of another trial, given the logistics and expense of
securing expert witnesses and a new jury.  I decline to order the matter
retried.

4.   The Court of Appeal

[51]       
Although it has not been specifically requested of me, I feel it
necessary to comment on the reasonableness of the jury’s verdict.  In doing so
I am taking in mind both the utility of such comments expressed by Southin J.A.
in Johnson, and the limits to them as stated by Garson J.A. in Boota.

[52]       
In my opinion, as a long-time member of the bench, the jury’s award in
this case has surpassed the level of “shockingly unreasonable”.  The amount of
damages awarded for non-pecuniary damages represents a fraction of what was
sought.  Whatever the reason, the jury felt the need to punish Ms. Evans in a
way that does not accord with the law.  In my judgment I have already discussed
some failures of the jury to appropriately apply the law to the actual evidence;
I believe that these failures (and more) are further manifest in their wholly
disproportionate award.  No jury reviewing the evidence as a whole and acting
judicially could have reached the verdict issued in these proceedings; the
evidence cannot support the verdict.

E.  Ruling

[53]       
Judgment will be issued for the plaintiff in the amount of $17,300. 
This amount represents the following findings of the jury:

[54]       
These amounts will not be reduced by a failure to mitigate.

[55]       
I have reached the limits of my remedial powers with respect to
corrections of the jury verdict though I believe this to be an appropriate case
for appellate review.

[56]       
I understand the parties may desire to make submissions with respect to
costs.

“Romilly J.”