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B E T W E E N : |
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FRANK LANDOLFI and MARIA LANDOLFI |
Paul J. Pape |
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- and - |
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ALESSANDRA FARGIONE |
Geoffrey D.E. Adair, Q.C. |
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Heard: November 14, 2005 |
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[1] This appeal concerns trial fairness in a civil negligence action arising from a motor vehicle accident. We are required to consider whether the following compromised trial fairness to a degree sufficient to result in a substantial wrong or miscarriage of justice: the exclusion of defence video surveillance evidence sought to be used at trial for impeachment purposes; the failure of the trial judge to declare a mistrial following the closing jury address by the plaintiffs’ counsel; and suggested deficiencies in the jury charge regarding the defence case on damages.
[2] Alessandra Fargione and Frank Landolfi were involved in an accident at a roadway intersection when their vehicles collided after Fargione ran a red light. Following the accident, Landolfi and his wife, Maria Landolfi, sued Fargione in negligence. They claimed general damages in the amount of $250,000 and special damages for income loss in the sum of $750,000 for Landolfi, plus general damages in the amount of $75,000 for Maria Landolfi under the Family Law Act, R.S.O. 1990, c. F.3 for the loss of her husband’s guidance, care and companionship.
[3] Fargione did not deny her negligence in causing the accident, or that Landolfi was injured in the collision. However, she claimed that Landolfi was contributorily negligent in causing or contributing to his damages, and she disputed the nature and extent of his injuries.
[4] After a three-week trial before a judge and jury, the jury apportioned 98% liability for the accident to Fargione and 2% to Landolfi. It assessed damages in the total sum of $185,488 for Landolfi on account of non-pecuniary general damages and past loss of income and benefits. It made no award of damages for future loss of income and benefits, but did award Maria Landolfi the sum of $36,500 for her Family Law Act claim.
[5] Fargione appeals, arguing that the conduct of the trial deprived her of a fair trial, thereby occasioning a miscarriage of justice that necessitates a new trial. [1] She contends that the trial judge erred: (i) by excluding video surveillance evidence sought to be used by the defence to impeach Landolfi’s credibility and to undermine the factual foundation of the opinions of his medical experts concerning the nature and severity of Landolfi’s injuries; (ii) by failing to declare a mistrial following an improper closing jury address by the Landolfis’ trial counsel (“plaintiffs’ counsel”); and (iii) by failing to provide the jury with a balanced overview of the defence medical evidence relevant to damages.
[6] For the reasons that follow, I would allow the appeal. I conclude that the defence video evidence was admissible for impeachment purposes and that the trial judge erred by excluding it. In my opinion, the trial judge also erred by failing to provide a correcting instruction to the jury following an inflammatory and prejudicial closing jury address by plaintiffs’ counsel and, further, by failing to instruct the jury on the defence medical evidence supportive of the defence case on damages. In combination, these errors deprived Fargione of a fair trial, resulting in a miscarriage of justice. Accordingly, the verdict cannot stand, and a new trial is required.
[7] Landolfi claimed that he suffered extensive and permanent injuries as a result of the accident, including a mild traumatic brain injury and a debilitating neck injury that
resulted in chronic pain affecting his shoulders and back, decreased mobility in his neck, headaches and cognitive impairment. He testified that as a result of these injuries, his social and family activities and his memory, concentration, sleep and enjoyment of life have been significantly diminished. He also said that, while he returned to his work as a supervisory shift manager in a commercial bakery about nine days after the accident and continued to work thereafter for approximately three and one-half years, his condition progressively worsened, causing him to take early retirement from his job at 63 years of age.
[8] Fargione maintained that Landolfi sustained neither a traumatic brain insult nor a severe neck injury in the collision. It was her position that Landolfi was a malingerer who falsely attributed a brain injury to the accident and exaggerated the extent of the soft tissue injury to his neck and his post-accident condition.
[9] Dr. Luciano Moro, Landolfi’s family physician, testified for the Landolfis at trial. He saw Landolfi two days after the accident and frequently thereafter until trial. During these visits, he made extensive clinical notes of Landolfi’s presenting complaints. These notes figured prominently at the trial and were described by plaintiffs’ counsel as a “roadmap” to Landolfi’s injuries and steady decline after the accident.
[10] Dr. Moro was examined in detail on the contents of his notes. He testified that Landolfi often complained of chronic neck pain, occasional back pain and ongoing memory and concentration problems after the accident. In his notes, Dr. Moro recorded repeated findings of “spasm”, which he believed provided objective evidence of Landolfi’s subsisting pain and injuries.
[11] Landolfi also called three medical experts at trial to provide opinion evidence regarding the nature and severity of his injuries. In forming their opinions, these witnesses relied on Landolfi’s self-reported post-accident behaviours and complaints, and Dr. Moro’s notes.
[12] Dr. Anthony Feinstein, a neuropsychiatrist and an expert in mild traumatic brain injuries, diagnosed Landolfi as suffering from a mild closed head injury. He described him as having a “pain disorder with prominent psychological symptoms” and testified that he was left by the accident with “persistent symptoms of post concussion disorder”. Dr. Feinstein regarded Landolfi’s injuries as permanent and serious and his prognosis as poor.
[13] Dr. Darrell Ogilvie-Harris, an orthopaedic surgeon, testified that Landolfi was suffering from “chronic pain syndrome”, which rendered him unable to perform his normal activities. He said that Landolfi’s use of “spinal sparing routines” (movements that protect the spine by avoiding the turning of the neck from side to side) evidenced the presence of ongoing pain.
[14] Dr. Adrian Hanick, a psychiatrist, said that, in addition to his neck injury, Landolfi sustained a concussion in the accident and suffered from “post-concussional disorder”, a condition that produces memory losses, severe headaches, irritability, sleep disturbances and some light-headedness. Dr. Hanick regarded the psychological effects of the accident on Landolfi as serious and permanent.
[15] Fargione also called three medical experts at trial. Their evidence supported the defence theory that Landolfi’s injuries were not of the type, severity and duration claimed.
[16] Dr. Gordon Hunter, an orthopaedic surgeon, and Dr. Lawrie Reznek, a neuropsychiatrist, offered the opinions that Landolfi was malingering or acting in respect of his injuries. Dr. Hunter was especially blunt, stating:
I thought he was acting. He was trying to convince me how disabled he was. That’s why I, I described it as being an Academy award performance. It happens very rarely, but this was an actor and he was a bad actor, because everything that he did just didn’t fit in there. Have I made myself clear?
[17] Dr. Reznek was also unambiguous in his testimony. He said that Landolfi did not suffer from major depression, post-traumatic stress disorder, pain disorder or a mild traumatic brain injury. In his opinion, “The only diagnostic category within the DSM [a psychiatric diagnostic manual] that appeared to fit was that he was malingering.”
[18] Although the third defence medical expert, Dr. Keith Nicholson, a clinical neuropsychologist, did not opine that Landolfi was a malingerer, he said that the results of tests administered to Landolfi were “atypical of mild traumatic brain injury” and worse than results for people with clear neurologic impairment and chronic pain, suggesting that Landolfi “wasn’t really trying during the testing”. In Dr. Nicholson’s opinion, if Landolfi sustained any brain injury at all in the accident, it was a mild injury that likely resolved completely “within a matter of hours or days”.
[19] During cross-examination, defence counsel questioned Landolfi about his claims of persistent neck pain and diminished neck mobility. In response, Landolfi asserted that his neck pain was “there all day, almost all the time” and that he suffered restricted neck mobility from the time of the accident until trial. Although he said that he also complained to Dr. Moro of his head injury and his memory problems, Landolfi acknowledged on cross-examination that, on virtually every occasion after the accident when he saw Dr. Moro, he had complained of neck pain and stiffness.
[20] After eliciting this evidence, defence counsel informed the trial judge that he had “evidence which is inconsistent with [Landolfi’s] testimony”, about which he wished to make submissions in the absence of the jury. A voir dire followed, during which defence counsel sought to tender as evidence three surveillance videos of Landolfi made on December 5, 2001, December 12, 2001 and February 23, 2003 by defence investigators.
[21] The defence maintained that the videos portrayed Landolfi engaged in various physical activities in an exercise room at a community centre and outside his home at a level of intensity and for a duration that were inconsistent with his description at trial of his post-accident condition, the history that he provided to various medical witnesses, and the clinical notes made by Dr. Moro. Defence counsel sought to use the videos to impeach Landolfi’s credibility and to undermine the factual assumptions made by Landolfi’s medical experts in forming their opinions as to the nature and severity of Landolfi’s injuries, including his neck injury.
[22] The videos were not produced to plaintiffs’ counsel prior to trial on the basis that they were subject to litigation privilege. However, well in advance of trial, defence counsel furnished written particulars to plaintiffs’ counsel of certain of the contents of the videos, including the date, time and place of the videos and the duration and nature of specific activities in which Landolfi was engaged at the time of the surveillance.
[23] The trial judge ruled that the videos were inadmissible, thereby precluding their use by defence counsel in cross-examination. In his original ruling excluding the videos, he held that:
(i) the videos should not be used by the defence for impeachment purposes or seen by the jury, “unless they would be otherwise admissible as substantive evidence”;
(ii) the defence failed to prove, on a balance of probabilities, the accuracy of the videotapes “in truly representing the facts”, the “fairness” of the videos and the “absence of any intention to mislead”;
(iii) the quality of the videos, especially those made on December 5 and December 12, 2001, was inadequate because the videos were “somewhat grainy” and “otherwise unclear and make it impossible to observe Mr. Landolfi’s facial expression at any time. His facial expressions might show if Mr. Landolfi was or was not experiencing neck pain”;
(iv) the videos did not appear to be continuous or complete: “[T]he tape does not show what occurred. If the videotapes do not show everything, something relevant may be missed”; and
(v) the defence disclosure letters concerning the videos were deficient because they did not reveal that Landolfi’s facial expression could not be seen on the videos and that the videos did not always permit the determination of what Landolfi was doing at the time that he was videotaped, and no mention was made in the letters of Landolfi’s neck movements.
[24] The trial judge concluded in respect of the December 5 and December 12, 2001 videos:
For these reasons, that is, the quality of the videotapes and their contents, or lack thereof, I find that the defendant has not proven, on a balance of probabilities, that requirements one and two are satisfied. That is, I cannot find, on a balance of probabilities, that either the videotape of December 5th, 2001 and the December 12th, 2001 videotape are accurate in truly representing the facts. Also, I cannot find, on a balance of probabilities, that either videotape is fair.
The trial judge made a similar ruling concerning the February 23, 2003 video.
[25] Subsequently, in supplementary reasons, the trial judge elaborated on the basis for his exclusion of the video evidence:
[O]nly a very small percentage of each surveillance video shows movements of Mr. Landolfi’s neck or head. The vast percentage of each video shows Mr. Landolfi being otherwise physically active, not moving his neck or head. That vast percentage of each video might have an impact on the jury. That impact might include prejudice – both moral prejudice and reasoning prejudice.
It is unfair to Mr. Landolfi that the jury might be influenced, possibly prejudiced, by seeing the surveillance tapes’ contents, which are unrelated to the defendant’s proposed purpose of cross-examination. Evidence, which might be otherwise inadmissible, would effectively slip in through the back door.
[26] Fargione contends that plaintiffs’ counsel at trial (not counsel on this appeal) made an inflammatory and highly prejudicial closing address to the jury, warranting a mistrial. The impugned comments in the address are said to consist of remarks that attacked the credibility and integrity of defence counsel at trial and statements that invited the jury to infer that the real defendant in the case was an insurance company of vast financial means that engaged in questionable litigation practices to defeat the Landolfis’ claims for compensation. The text of the principal challenged comments by plaintiffs’ counsel is set out in Schedule “A” to these reasons. These comments may be summarized as follows.
[27] During his closing address to the jury, defence counsel suggested that Landolfi told three “whoppers” and uttered three “clear falsehoods” in his testimony at trial. The contention that the jury was told “whoppers” during the course of the trial was taken up by plaintiffs’ counsel at the outset of his own closing address. He stated that defence counsel’s submissions to the jury were speculative and lacked an evidential foundation, that defence counsel himself told four “whoppers” to the jury regarding the evidence adduced at trial, and that he also misrepresented certain evidence to the jury relevant to the defence claim that Landolfi was a malingerer.
[28] Subsequently, plaintiffs’ counsel returned to his theme of speculation and fabrication of evidence by defence counsel, commenting that defence counsel had “played with the evidence”, “made up” evidence, and substituted his own opinion of Landolfi’s condition for that of the medical experts.
[29] Plaintiffs’ counsel also suggested that defence counsel, “with his resources”, had searched unsuccessfully for a witness who was prepared to contradict Landolfi’s evidence concerning his retirement intentions. In this context, plaintiffs’ counsel said, “So what does he do, comes in here and makes things up because his doctors didn’t help him.” When responding to defence counsel’s suggestion to the jury that Landolfi’s injuries in the accident may not have been the cause of his early retirement, plaintiffs’ counsel repeatedly referred to defence counsel as “Dr.”, again suggesting that defence counsel purported to offer his own unsupported medical opinions to the jury. He also, again, alleged that defence counsel misrepresented the evidence to the jury and engaged in speculation throughout his closing address.
[30] In his address, plaintiffs’ counsel also criticized the defence decision to contest liability at trial. He correctly pointed out that Fargione acknowledged that she pleaded guilty to a charge of failing to stop at a red light in connection with the accident and that she conceded on cross-examination that Landolfi did nothing to cause the collision. In this context, plaintiffs’ counsel queried who was “calling the shots” for the defence and “who [was] telling [defence counsel] to argue liability”, intimating to the jury that the actual defendant in the case was an insurance company. He also made reference to the financial resources available to the defence and attacked Dr. Hunter’s credibility and impartiality on the basis of his prior experience as an expert retained by insurance companies.
[31] Defence counsel objected to this closing address on several grounds, including that plaintiffs’ counsel “did everything but bang the jury over the head with the fact that it is an insurance company on the side of the defence”. He did not object to the personal comments regarding his own closing address to the jury.
[32] Defence counsel informed the trial judge of his view that the complained of comments were highly inflammatory and that, in the circumstances, the appropriate remedy was a mistrial. He did not seek to have the jury struck. Nor did he request that the trial judge provide a correcting instruction to the jury regarding the offending closing address. Instead, he told the trial judge:
I don’t want a mistrial and I’m sure that you don’t want a mistrial but if you don’t then you’re forced to admonish [plaintiffs’ counsel] in front of the jury about the same issue which exacerbates the problem of the fact that it’s an insurance company. I just don’t know how you get around it … [A]s I say I think you have a difficult decision to make because I don’t know any other appropriate way to deal with the numerous mentions of you know how much the vast resources of my clients and so on, I think that that’s highly inflammatory.
[33] The trial judge declined to declare a mistrial, holding:
The reference to the insurance company may have been somewhat inappropriate and may have led the jury to believe that [the] actual client is an insurance company. However, having regard to the actual references that were made and the fact that everybody knows that all Ontario drivers are insured, I do not think, and I do not find, that the references prevent the jury from properly exercising their [sic] duty.
[34] In his jury charge, the trial judge made no reference to plaintiffs’ counsel’s closing address. However, at the conclusion of trial and in the absence of the jury, he admonished plaintiffs’ counsel in these terms:
The Court: I must admit I was not expecting the attack on Mr. McCartney in the closing. I was astonished by that. I did not think it was appropriate…I really did not. I thought you went out of bounds on that.
[Plaintiffs’ Counsel]: Well you have got to do what you have got to do [emphasis added].
[35] Fargione maintains that the trial judge erred in law by failing to provide the jury with a balanced overview of the defence medical evidence on the nature and severity of Landolfi’s injuries. I find it convenient to address the facts relevant to this ground of appeal in my discussion of the legal issues.
[36] There are four issues:
(1) Did the trial judge err by excluding the defence video evidence?
(2) Did the trial judge err by failing to declare a mistrial or to provide a correcting instruction to the jury concerning the closing jury address by plaintiffs’ counsel?
(3) Did the trial judge err by failing to provide the jury with a balanced overview of the defence medical evidence on the nature and severity of Landolfi’s injuries?
(4) If one or more of these errors occurred, was trial fairness compromised to a degree sufficient to result in a substantial wrong or miscarriage of justice, thereby necessitating a new trial?
[37] Fargione argues that the trial judge erred in excluding the defence video evidence by applying the wrong legal test to his determination of admissibility and by holding that Fargione’s failure to make adequate pre-trial disclosure of the contents of the videos precluded her use of them at trial for impeachment purposes. I will consider each of these submissions in turn.
(i) Test for Admission of the Defence Video Evidence
[38] In seeking to use the surveillance videos at trial, defence counsel relied upon rule 30.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This rule states:
Where a party has claimed privilege in respect of a document and does not abandon the claim by giving notice in writing and providing a copy of the document or producing it for inspection at least 90 days before the commencement of the trial, the party may not use the document at trial, except to impeach the testimony of a witness or with leave of the trial judge.
[39] In this case, because the videos were not produced to plaintiffs’ counsel prior to trial and Fargione did not deliver a notice of abandonment of her privilege claim concerning the videos in accordance with rule 30.09, the videos were not admissible as substantive evidence absent leave of the trial judge and could be used at trial only for impeachment purposes.
[40] In other words, rule 30.09 precluded offering the videos as evidence of Landolfi’s physical capacities, but did not foreclose the admission of the videos to challenge the credibility of Landolfi’s evidence as to his physical limitations following the accident. Used for impeachment purposes, the videos had the potential to directly undermine the credibility of Landolfi’s testimony concerning his physical incapacities and the further potential to undermine the reliability of the opinions formed by Landolfi’s medical experts to the extent that those opinions relied on Landolfi’s description of his physical incapacities.
[41] The trial judge correctly recognized that the videos were not tendered by defence counsel as substantive evidence but, rather, for impeachment purposes, and that rule 30.09 governed their admissibility. Nonetheless, because he concluded that the videos might prejudice the jury, he held that they should not be admitted unless “they would otherwise be admissible as substantive evidence”.
[42] In his supplementary reasons in support of his exclusion ruling, the trial judge noted that this test for the admission of the videos was higher than “what is usually required when it is sought to use a document or videotape in cross-examination for impugning credibility”.
[43] In the same reasons, the trial judge explained that the basis for his finding of potential prejudice was the fact that most of the contents of the videos, in his view, showed Landolfi engaged in physical activities that did not involve movements of his neck and head. Because defence counsel sought to show the jury the entirety of each of the videos, the trial judge concluded that, “Evidence, which might be otherwise inadmissible, would effectively slip in through the back door” and “It is unfair to Mr. Landolfi that the jury might be influenced, possibly prejudiced, by seeing the surveillance tapes’ contents, which are unrelated to the defendant’s proposed purpose of cross-examination.”
[44] The trial judge had earlier ruled that the following requirements governed the admissibility of the videos:
In addition to relevance and necessity there are three requirements for admissibility of a videotape:
1) their accuracy in truly representing the facts;
2) their fairness and absence of any intention to mislead; and
3) their verification under oath by a person capable of doing so.
In the trial judge’s view, the first and second of these were not met in this case.
[45] In my opinion, the trial judge erred in his approach to the determination of the admissibility of the defence video evidence. I say this for the following reasons.
[46] As implicitly acknowledged by the trial judge, the use of the videos for impeachment purposes under rule 30.09 did not require that the test for the admission of substantive evidence be met. Rule 30.09 sets out strict procedural requirements where a party seeks to use a privileged document at trial as substantive evidence in its case. These requirements oblige the party who seeks to use the evidence to abandon its previously asserted privilege claim in writing and to produce the “document” for inspection not later than 90 days before the commencement of the trial. Under rule 30.01(1)(a), a “document” includes a videotape. Thus, rule 30.09 contemplates production before trial of a privileged document, for its eventual use at trial, where a party intends to use the document as substantive evidence: see Giroux v. Lafrance (1993), 19 C.P.C. (3d) 12 (Ont. Ct. (Gen. Div.)); and Youssef v. Cross (1991), 80 D.L.R. (4th) 314 (Ont. Ct. (Gen. Div.)).
[47] Rule 30.09, however, provides two exceptions to these procedural requirements. Where the document in question is sought to be used for impeachment purposes or the trial judge otherwise grants leave to use the tendered document, the procedural requirements of rule 30.09 have no application. It is undisputed that, in this case, defence counsel sought to invoke the impeachment exception.
[48] The established test for the admission of evidence at trial rests on relevancy. I agree with the formulation of this test enunciated by Dawson J. in Ferenczy v. MCI Medical Clinics (2004), 70 O.R. (3d) 277 (Sup. Ct. J.) at para. 18:
Prima facie relevant evidence is admissible, subject to a discretion to exclude where the probative value is outweighed by its prejudicial effect. This is the test in both criminal and civil cases: R. v. Morris, [1983] 2 S.C.R. 190, 1 D.L.R. (4th) 385, 48 N.R. 341, 7 C.C.C. (3d) 97; and see Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at pp. 23-28.
[49] Under this test, where evidence is tendered for impeachment purposes (as in this case) the admission of the evidence requires a showing of relevance to the credibility of a witness on a material matter and a further demonstration that the potential value of the proffered evidence to assist in assessing credibility outweighs the potential prejudicial effect of the evidence.
[50] In this case, in excluding the defence video evidence, the trial judge relied upon requirements for admissibility derived from Ball v. Vincent (1993), 24 C.P.C. (3d) 221 (Ont. Ct. (Gen. Div.)); and R. v. Creemer and Cormier, [1968] 1 C.C.C. 14 (N.S.S.C. (A.D.)). However, these cases contain no discussion of the purpose or scope of rule 30.09. As well, the video evidence at issue in Ball was tendered by the defence both as substantive evidence and for impeachment purposes. Copies of the videos had been provided before trial to the medical experts for both parties, and the defence intended to introduce at trial medical evidence from physicians retained by the defence who relied on the videos in forming their opinions regarding the plaintiff’s injuries. That is not this case.
[51] In addition, the trial judge in Ball was alive to the fact that the admissibility of the videos in that case depended upon a threshold determination of relevancy and an assessment that their probative value exceeded their prejudicial effect. He found that the videos were relevant to the evidence adduced before him concerning the plaintiff’s capacity to “make certain movements” and ruled that the videos had sufficient probative value to support their admission. In contrast, in this trial, the trial judge made no ruling regarding the relevance of the video evidence from the perspective of the defence or, more generally, in relation to the matters in issue between the parties. Nor did he consider whether the probative value of the videos exceeded their prejudicial effect.
[52] Moreover, and perhaps more importantly, there is no principled basis for video evidence to attract a different, and more stringent, test for admissibility at trial than that which applies to any other form of evidence. Admittedly, the impact of video evidence can be powerful. But this is true of many forms of demonstrative evidence or any evidence that establishes that a witness is being less than truthful. The test for the admission of the evidence remains the same.
[53] At trial, defence counsel maintained that the videos depicted Landolfi engaged in activities that, among other matters, were inconsistent with his assertion that he suffered restricted mobility in his neck from the date of the accident until trial. The videos, which were filed with and reviewed by this court, provide some support for this assertion. Indeed, in their factum filed with this court, the Landolfis conceded that a freedom of movement of Landolfi’s neck is apparent in some scenes depicted in the December 2001 videos. They also acknowledged that the February 2003 video recorded Landolfi sweeping snow at his residence.
[54] The video evidence was relevant to Landolfi’s credibility in that it could undermine the veracity of his testimony regarding his post-accident physical limitations. In addition, if Landolfi was disbelieved on this matter, the reliability of his experts’ evidence would also suffer since their opinions were based in part on Landolfi’s own description of his physical limitations.
[55] The remaining issue, then, was whether the probative value of the video evidence outweighed its potential prejudicial effect. In his reasons in support of his exclusion of the video evidence, the trial judge focused almost entirely on the question of potential prejudice. In so doing, he made no finding of actual or even likely prejudice arising from the use of the videos at trial. Rather, he concluded that the videos, if admitted, “might have an impact”, including a potential prejudicial impact, on the jury.
[56] The trial judge identified two factors as giving rise to potential prejudice from the use of the videos at trial: (i) the suspect quality and integrity of the videos; and (ii) the fact that many of Landolfi’s activities shown in the videos, in the trial judge’s view, were unrelated to movements of Landolfi’s neck or head. In my opinion, neither of these established prejudice outweighing the probative value of the video evidence.
[57] In relation to the first factor, the trial judge expressed concern that the videos, in part, were not continuous in the sense that not everything that occurred was captured on film, and the videos were “grainy” and sometimes unclear, rendering it occasionally difficult, if not impossible, to detect Landolfi’s recorded facial expressions. In my view, although the reliability of video evidence in a given case could be so uncertain as to render the evidence of little probative value for impeachment purposes, and thereby justify its exclusion if there is also risk of prejudice, no such reliability concerns existed here. The concerns identified by the trial judge went to the weight to be accorded the video evidence by the jury, rather than to its admissibility. Moreover, it was for the jury to determine the ultimate reliability and value of the evidence elicited through the use of the videos.
[58] Nor did the second factor identified by the trial judge (the depiction in the videos of Landolfi engaged in physical activities that did not involve movements of his head or neck) compel the exclusion of the videos. Prior to the defence motion to admit the videos, Landolfi described in some detail in his testimony the components of an exercise regime adopted by him after the accident on the advice of Dr. Moro and the impact of this regime on his neck mobility and pain. He said that, after the accident, he was able to exercise, but that he often suffered the consequences of such exercise one or two days thereafter, when neck pain and restricted neck mobility again emerged.
[59] Thus, before defence counsel sought to use the videos in his cross-examination of Landolfi, the jury already knew that Landolfi had engaged in an extensive exercise program on the instructions of his physician. In these circumstances, the fact that the video evidence, if shown to the jury, would confirm Landolfi’s participation in exercise activities following the accident could not give rise to a significant risk of prejudice.
[60] It may also be said that the potential prejudice from the admission of the videos rested in the danger that the jury could use the videos as direct evidence of Landolfi’s physical capacities rather than as evidence to assist in assessing the credibility of his evidence as to his physical capacities. However, this risk exists whenever evidence is offered for impeachment purposes.
[61] I see little risk of real prejudice to Landolfi arising from the admission of the videos. If the jury concluded that the videos put the lie to Landolfi’s evidence concerning his physical limitations following the accident, it would no doubt reject his evidence on this issue. The substantial harm potentially caused to Landolfi’s case by a rejection of his evidence on this issue on the basis that it was incredible would hardly be increased if the jury went on to improperly use the videos as evidence of Landolfi’s actual physical capacities. In addition, this risk of misuse could have been addressed by a proper limiting instruction to the jury.
[62] It is also important to emphasize that the videos were tendered on the third day of a three-week trial. It was open to Landolfi in his testimony to explain or contradict the contents of the videos. He was also free to call evidence to challenge or respond to the videos.
[63] Before this court, Landolfi argues that the test for the admissibility of video evidence for impeachment purposes is analogous to the rules applicable to the cross-examination at trial of a witness on a prior inconsistent statement. He contends, therefore, that absent a demonstration that his trial evidence was inconsistent with the content of the videos, no foundation for the admission of the videos was established and their exclusion was mandatory. He submits that there was no showing of the requisite inconsistency in this case.
[64] However, Landolfi was examined by Dr. Moro at times proximate to the incidents captured on the December 2001 videos and by Dr. Reznek about 10 days before the February 2003 video was made. By the time that defence counsel sought to use the videos, he had already cross-examined Landolfi concerning his restricted neck movements and continuing neck pain, and he had obtained admissions from Landolfi of the daily presence of neck pain and of persistent restricted neck movements. Moreover, Dr. Moro had been examined on the contents of his clinical notes in relation to Landolfi’s complaints about his neck. In addition, and significantly, Landolfi’s credibility and that of his medical experts on the severity of Landolfi’s neck injury was a critical plank of the defence case on damages and, together with the issue whether Landolfi sustained a brain injury, was central to the jury’s deliberations on damages.
[65] In these circumstances, I am satisfied that an adequate foundation was laid by defence counsel for the admission of the videos. The presence or absence of inconsist-ency is not always clear at the outset in cross-examination. Given the undisputed fact that the videos, at least in part, portray Landolfi engaged in activities that required him to move his neck and body, it was open to defence counsel to attempt to show that these activities were inconsistent with the extent of the neck condition described by Landolfi in his trial testimony and with the recorded observations of Dr. Moro.
[66] I conclude that while the probative value of the video evidence may not have been high, it was not trifling. Nor did the potential prejudicial effect of the videos outweigh their probative value. It was for the jury, as the trier of fact, to determine what weight, if any, should attach to the evidence of Landolfi and his medical experts elicited through cross-examination on the videos. Although this court will not lightly interfere with the discretionary decision by a trial judge to exclude potentially prejudicial evidence, the exclusion of the videos in this case was based on the application of the wrong legal test for admissibility and a flawed analysis of their prejudicial effect. The videos were admissible under rule 30.09 for the narrow purpose proposed by defence counsel.
(ii) Disclosure of the Contentsof the Video Evidence
[67] In his exclusion ruling, the trial judge held that in order for Fargione to use the surveillance videos at trial for impeachment purposes under rule 30.09, she was obliged to “disclose the full contents” of the videos and that her failure to do so prior to trial precluded their admission for the purpose proposed. This holding was in error.
[68] In connection with this holding, the trial judge relied upon Walker v. Woodstock District Chamber of Commerce (2001), 7 C.P.C. (5th) 176 (Ont. Sup. Ct. J.), in which the Divisional Court held at para. 12 that, “[T]he defendants in this case must make full disclosure of all particulars of the surveillance conducted by them, even if, they only intend to use the surveillance to impeach the testimony of a witness.” In my view, with respect, the trial judge’s reliance on Walker to exclude the video evidence on the basis of inadequate disclosure was misplaced.
[69] The Rules of Civil Procedure distinguish between documentary discovery, as contemplated by Rule 30, and informational discovery, as provided by Rule 31. The current rules, introduced in 1985, expanded the scope of discovery in Ontario, including the scope of informational discovery (i.e. the information available to examining counsel through the examination for discovery process). Walker involved consideration of the obligation of a defendant to disclose full particulars of surveillance where a request was made for such particulars on discovery and, in response, an undertaking was given on behalf of the plaintiff to comply with the discovery provisions of the Rules of Civil Procedure.
[70] Walker, therefore, was concerned with the scope of informational discovery under rule 31.06 and not with the use at trial of privileged documents under Rule 30. Walker held that where particulars of surveillance videos are sought on an examination for discovery, the provision of such particulars is obligatory under the rules, even though the video itself need not be produced for inspection if it is to be used in the action only for impeachment purposes. This principle recognizes that the broadened discovery rights under the rules are intended to discourage ‘litigation by ambush’ and to encourage full and timely disclosure: see Ceci v. Bonk (1992), 7 O.R. (3d) 381 (C.A.) at 383-84.
[71] The parties provided case law regarding the discovery obligation to disclose information contained in privileged surveillance videos, reports or photographs. These cases are of little assistance. There is no suggestion here that disclosure of the contents of the defence videos or production of the videos themselves was sought during an examination for discovery of Fargione or by motion prior to or at trial. To the contrary, the record indicates that, before trial, particulars of the video evidence were voluntarily provided by defence counsel. It appears that no motion for further and better particulars or for additional oral discovery was brought by Landolfi, although these procedural options were available.
[72] Before this court, Landolfi acknowledges that the level of pre-trial disclosure of the video contents made by defence counsel was “fairly full”. The trial judge agreed, commenting that defence counsel “did make significant disclosure” prior to trial. However, the trial judge was critical of defence counsel’s failure to include in his disclosure letters particulars of matters not revealed by the videos, including, for example, the fact that Landolfi could not always be seen in the videos and that it was impossible to ascertain exactly what Landolfi was doing at all times when he was videotaped. The trial judge’s conclusion that the disclosure was inadequate was also based on the failure of defence counsel to mention in his disclosure letters the “movements of [Landolfi’s] neck” captured in the videos.
[73] However, the obligation to disclose such particulars did not arise under rule 30.09. Where, as here, surveillance videos are not sought to be admitted as substantive evidence, this disclosure obligation is triggered, if at all, through the informational discovery process envisaged by rule 31.06(1) of the Rules of Civil Procedure. This rule obliges a person examined for discovery to answer any proper question relating to any matter in issue in the action, including information that is evidence. A disclosure obligation is also imposed by rule 30.03, which compels the delivery prior to trial of an affidavit of documents by every party to an action and the listing and description in the affidavit of those documents for which the deponent claims privilege.
[74] The important interplay between rules 30.09, 31.06(1) and 30.03 was described by Carthy J.A. of this court in Ceci at pp. 383-84 in this fashion:
I do not read [rule 30.09] as inconsistent with the principle of full exchange of information at all stages of an action. The [impeachment] exception [under rule 30.09], in my view, is a simple acknowledgement that a party, unable to anticipate everything that may be said by an opponent at trial, cannot be expected to relinquish privilege and give notice of documents on the mere chance that they may be used to impeach. Any suggestion of ambush being encouraged is dispelled by the necessary inclusion of the privileged document in the affidavit of documents, the ability of the opposite party to demand particulars of its contents on discovery, and the limited use of the privileged document at trial.
[75] The question before the trial judge concerned only the application of rule 30.09 and whether Fargione, in the circumstances, could invoke the impeachment exception in that rule. Any prospect of prejudice to Landolfi by Fargione’s effort to do so at trial was avoidable through the pre-trial informational discovery provisions of the rules. On this record, it appears that Landolfi elected not to engage the benefit of these rules. While this was his right, he could not thereafter seek to resist Fargione’s use of the video evidence at trial for impeachment purposes on the ground of inadequate disclosure.
[76] It is well-established that considerable latitude is afforded counsel concerning the permissible scope of a closing jury address in a civil trial. This court observed in Stewart v. Speer, [1953] O.R. 502 at 508, quoting from Dale v. Toronto R.W. Co. (1915), 34 O.L.R. 104 (C.A.) at 107-08, that counsel has the right to make an impassioned address on behalf of his or her client and, in some cases, the duty to so do, so long as it “does not offend in other respects”, and “courts do and must give considerable latitude, even to extravagant declaration”. See also J. Sopinka, D. B. Houston & M. Sopinka, The Trial of an Action, 2nd ed. (Toronto and Vancouver: Butterworths, 1998) at 130ff.
[77] This principle lies at the core of the advocate’s duty to his or her client and the independence of the bar. Counsel are required to advance their client’s cause fearlessly and with vigour, so long as this is done in accordance with the rules of court and professional conduct and in conformity with counsel’s obligations as an advocate and officer of the court.
[78] But there are also important limits on the bounds of a closing jury address. As this court recently stated in Brochu v. Pond (2002), 62 O.R. (3d) 722 at paras. 15 and 16:
[T]he expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence.
Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant consid-erations, are objectionable at any time. Such comments are “inflammatory”, in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left un-checked, inflammatory comments can undermine both the appearance and the reality of trial fairness [citations omitted].
[79] I agree with Fargione’s submission that the comments by plaintiffs’ counsel in his closing address concerning defence counsel and the implied involvement in the action of a third party defence insurer were inflammatory and prejudicial. However, in the circumstances of this case, I do not agree that the offending comments obliged the trial judge to exercise his discretion to declare a mistrial. Rather, a clear correcting instruction to the jury was required. The trial judge’s non-direction on this issue was an error. I reach these conclusions for the following reasons.
[80] The complained of remarks regarding defence counsel directly called into question his character and truthfulness. By suggesting to the jury that defence counsel told the jury four “whoppers” or lies, “[made] things up” because the defence medical experts did not “help” the defence, and misled the jury regarding the evidence, plaintiffs’ counsel mounted a focused and personal attack on the professional integrity of defence counsel. In effect, he placed defence counsel on trial.
[81] However, the record reveals that the impugned comments to the jury by defence counsel were not clearly inaccurate or misleading. Certainly they did not warrant the serious accusations that he fabricated and deliberately misrepresented the evidence. Two examples will illustrate this point.
[82] Plaintiffs’ counsel stated in his address that defence counsel told a “whopper” when he said that Landolfi suffered a stroke after the accident. Plaintiffs’ counsel argued that the evidence did not establish the timing of the occurrence of the stroke and that it was a “silent” stroke.
[83] In fact, although defence counsel commented in his closing address on the proven fact that Landolfi had a stroke and implied that it may have been the cause of Landolfi’s early retirement, defence counsel also repeatedly told the jury that “we just don’t know” whether the stroke prompted the timing of Landolfi’s retirement or caused his complaint of “trouble with my head”. He also stated, correctly, that the medical evidence of the stroke indicated that it was “an old infarct”, the existence of which was not discovered until after the accident. Thus, a fair reading of defence counsel’s address on this issue does not support the claim that he lied or misstated the evidence about the stroke.
[84] Plaintiffs’ counsel also alleged in his address that defence counsel told another “whopper” to the jury when he said that Jesus Reyes, one of Landolfi’s co-workers, testified that Landolfi was observed after the accident lifting 80-pound bags of baking ingredients at work. This was both an inaccurate characterization of defence counsel’s remarks to the jury and a misleading reference to the evidence on this issue.
[85] The transcript of defence counsel’s closing address reveals that he referred to the evidence of a different witness, Vincenzo Grego, and that he went on to state that Landolfi, himself, testified that he was required to occasionally engage in heavy lifting at work, including the lifting of heavy bags. Defence counsel maintained that this was inconsistent with “any significant injury”.
[86] In fact, Grego’s evidence was unrelated to Landolfi’s activities at work. However, Landolfi did testify that when he filled in for others at work (which often occurred on a daily basis), his job entailed heavy lifting and carrying and mixing the batter. Patricio Tello, a mixer at the bakery, said that, after the accident, Landolfi continued in the same helpful activities at work in which he had engaged prior to the accident, including lifting heavy bags, except that he did this less frequently and he was “starting to get a little slow in the job”. In addition, Mauro Rossi, another mixer at the bakery, said that Landolfi was obliged to do some of the lifting of 88-pound bags of sugar and flour and to carry them up a step-ladder. He did not suggest that this activity ceased after the accident. Consequently, although defence counsel misspoke when he referred to Grego’s evidence, I am not persuaded that he materially misstated the evidence at trial on this issue.
[87] These examples demonstrate that plaintiffs’ counsel’s claim that defence counsel misrepresented or fabricated the evidence in these instances was unfounded. To the contrary, in alleging that defence counsel misstated the evidence on these issues, plaintiffs’ counsel both misquoted defence counsel and himself misstated the evidence.
[88] Counsel for the Landolfis properly acknowledged before this court that there is no room in our adversarial system of justice for unwarranted ad hominem attacks at trial on opposing counsel. I agree. This is not simply a matter of courtesy. Such attacks are not only uncivil and unprofessional, left unchecked they also endanger trial fairness and stain the administration of justice.
[89] In this case, the offending comments regarding defence counsel were inflammatory and prejudicial to the defence because they improperly invited the jury to decide the case on the basis of an extraneous and irrelevant consideration - the credibility of defence counsel - rather than on the strength of the evidence adduced at trial: see Ross v. Lamport, [1955] O.R. 542 (C.A.) at 562-63, rev’d on other grounds, [1956] S.C.R. 366; and Brochu, supra, at paras. 15 and 16. In this sense, the comments risked diverting the jury’s attention away from its true task, namely, an objective evaluation of the relevant issues, the positions of the parties in relation to those issues, and the evidence pertaining to the issues. This prejudicial impact was compounded by the fact, as I have said, that at least some of the comments on the evidence by plaintiffs’ counsel were inaccurate and misleading.
[90] Nor do I accept that the challenged comments concerning defence counsel were inadvertent minor lapses uttered during the ‘heat’ of an enthusiastic and forceful closing address. In developing the theme in his closing address that defence counsel made speculative statements to the jury that were not supported by the evidence, plaintiffs’ counsel, a very experienced personal injuries lawyer, stated that defence counsel “made up” evidence concerning Landolfi’s injuries to which no medical expert had testified. In so doing, plaintiffs’ counsel referred to defence counsel, on six separate occasions, as “Dr.” McCartney.
[91] In the context of the theme of plaintiffs’ counsel’s closing address, these sarcastic and repeated references cannot be viewed as accidental or trivial. They can have had no purpose other than to further denigrate defence counsel in the eyes of the jury and to prejudice the jury against defence counsel and, through him, his client. This was improper. As observed by this court in R. v. Giesecke (1993), 82 C.C.C. (3d) 331 at 334, leave to appeal to S.C.C. refused (1994), 86 C.C.C. (3d) vii, in the context of a criminal case:
While counsel is not held to a standard of perfection in his or her address to the jury, there is a significant difference between remarks or observations one can characterize as inappropriate but contextually acceptable, and those made by counsel… which, by their hyperbole, mischaracterization or insinuation, impair the possibility of a fair trial.
These comments are apposite here.
[92] In addition, on several occasions during his closing address, plaintiffs’ counsel intimated to the jury that the actual defendant in the case was an insurance company. Given the contemporary prevalence of insurance as a commodity and the advent of compulsory automobile insurance, such references in a civil jury trial in Ontario no longer automatically trigger the discharge of the jury. Rather, the decision whether to discharge the jury in a civil case as a result of such references is a matter within the trial judge’s discretion: see Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092.
[93] Thus, plaintiffs’ counsel’s suggestion to the jury that the actual defendant was a third party insurer did not render the declaration of a mistrial mandatory. As the trial judge observed when dismissing the mistrial motion, “everybody knows that all Ontario drivers are insured”.
[94] However, the insurance company-related references in this case were extensive. They were not confined to the implied fact of the involvement in the action of a defence insurer. Plaintiffs’ counsel also raised the irrelevant considerations that defence counsel had considerable resources at hand (presumably through funds provided by an insurance company) to retain witnesses adverse to the Landolfis, that he had searched fruitlessly for such witnesses, and that the ‘real’ defendant had ample funds from which to satisfy defence counsel’s fees. As well, by attacking defence counsel’s honesty and Dr. Hunter’s impartiality, in part on the basis of Dr. Hunter’s frequent retainer by insurance companies, plaintiffs’ counsel insinuated to the jury that the person actually directing the defence, an insurance company, was prepared to engage in an inappropriate trial strategy by hiring dishonest experts and lawyers to defeat the Landolfis’ legitimate compensation claims.
[95] Although plaintiffs’ counsel did not expressly invite the jury to make improper use of the suggested involvement of a wealthy insurance company, the danger existed that the jury would believe that the ability of the ‘true’ defendant in the case to pay damages was relevant to its assessment of damages. This is an extraneous and improper consideration.
[96] I agree that the jury may be taken to have known that Fargione was insured, both because automobile insurance is compulsory in Ontario and because Dr. Hunter disclosed in his evidence his prior experience in acting for insurance companies. But the references here to the involvement of an insurance company were tied implicitly to the suggestion that the insurer engaged in unethical or unscrupulous litigation tactics. This insinuation, in my view, augmented the prospect for substantial prejudice to the defence.
[97] There is also a further aspect of this case about which it is appropriate to comment. At trial, plaintiffs’ counsel resisted the defence mistrial motion, in part by seeking refuge in the premise that a civil jury trial is “not a tea party”. In addition, at the conclusion of trial, when he was properly (and somewhat mildly) chastised by the trial judge for his attack on defence counsel in his closing address, plaintiffs’ counsel made the remarkable response that trial counsel “have got to do what you have got to do”.
[98] These statements were disdainful of the court and of counsel’s obligations as an advocate and officer of the court, obligations that are owed to the court, the litigants and opposing counsel: see for example, R. v. Felderhof (2003), 68 O.R. (3d) 481 (C.A.) at paras. 83-84. They were also misconceived. Although it is true, in the language coined by Riddell J. in Dale v. Toronto R.W. Co., supra, at p. 108, that, “a jury trial is a fight and not an afternoon tea”, a civil trial is not ‘open season’ for attacks on opposing counsel and litigants. This court recently stressed in Felderhof, at paras. 95 and 96, that the professional obligation of counsel to keep his or her rhetoric at trial within reasonable bounds has “nothing to do with trials not being ‘tea parties’ ”. Nor does a hard fought trial, like this one, license counsel to make inappropriate and prejudicial submissions to the jury, including those that cast aspersions on the integrity of opposing counsel.
[99] As I have said, the decision whether to declare a mistrial is squarely within a trial judge’s discretionary domain. Consequently, a trial judge’s decision on this issue attracts considerable deference from this court: see Hamstra, supra, at para. 26; and R. v. Emkeit (1972), [1974] S.C.R. 133 at 139. Nonetheless, there may be situations where the nature of the offending remarks by counsel to a jury gives rise to a danger of substantial prejudice to the opposing litigant. In these circumstances, in my view, it is incumbent on the trial judge to intervene.
[100] In this case, the trial judge declined to order a mistrial on the ground that the references by plaintiffs’ counsel to the involvement of a defence insurer would not prevent the jury from properly exercising its duty. However, the trial judge did not consider the prejudice arising from the entirety of plaintiffs’ counsel’s address, including from his remarks regarding defence counsel and the alleged tactics and resources of the defence insurance company.
[101] I recognize that defence counsel did not object at trial to the personal attack made on him in the offending closing address. This, however, did not diminish the trial judge’s responsibility to maintain civility in the courtroom and to intervene to avoid the risk of prejudice: see Felderhof, at paras. 57, 83, 94 and 95; and de Araujo v. Read, [2004] 8 W.W.R. 473 (B.C.C.A.) at paras. 4 and 53, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 346.
[102] In fairness to the trial judge, defence counsel indicated that he did not wish a mistrial to be declared. This is understandable, given the ‘thrown away’ costs of a three-week trial for the litigants that would be occasioned by a mistrial. Nonetheless, defence counsel clearly sought relief in some form as a result of the challenged closing address. When plaintiffs’ counsel, in an exchange with the trial judge, queried whether defence counsel was seeking to strike the jury, the trial judge responded by indicating his understanding that defence counsel’s request for relief was limited to a mistrial motion. The trial judge did not seek to ascertain whether defence counsel wished to proceed without a jury, that is, whether striking the jury, in the view of defence counsel, was an available remedial option.
[103] With respect, the trial judge erred by failing to consider and canvass with counsel whether options short of a mistrial were available to address the prejudice arising from the improper closing address by plaintiffs’ counsel. If defence counsel was prepared to proceed without a jury, even at that late stage of the trial, the discharge of the jury was a potential remedial option to be considered. Alternatively, consideration should have been given by the trial judge to the merits of providing a caution to the jury to correct the offending comments by plaintiffs’ counsel. The failure to consider these options reflected an inadequate assessment of the prejudice arising from the closing address and how to remedy it: see de Araujo, at para. 53.
[104] The offending comments by plaintiffs’ counsel in this case were sustained and serious. Viewed in their entirety, they exceeded by considerable margin the bounds of legitimate rhetoric in a closing jury address. Left unaddressed by the trial judge, they raised the real prospect that, in approaching its task, the jury may have taken into account irrelevant, prejudicial and distracting matters that it ought not to have been permitted to consider.
[105] In all the circumstances, in my view, the appropriate response by the trial judge to the challenged closing jury address was to provide a clear and blunt correcting instruction to the jury, either immediately upon the close of counsels’ closing jury addresses (when counsels’ remarks were fresh in the minds of the jurors) or early in the course of the trial judge’s charge to the jury: see for example, Brochu, supra; and Marrelli v. Death, [2005] O.J. No. 125 (C.A.).
[106] In that instruction, the jury’s attention should have been drawn specifically to the offending comments by plaintiffs’ counsel concerning defence counsel and regarding the improper suggestions that the ‘real’ defendant in the case was a wealthy and unscrupulous insurance company. The jury should have been told that these comments were wrong and inappropriate because they were irrelevant and distracting and, as I have said, because they had nothing to do with the jury’s true task, namely, the objective evaluation of the relevant issues, the positions of the parties in relation to those issues, and the evidence pertaining to the issues. The jury should also have been directed, in unambiguous language, to disregard the improper comments by plaintiffs’ counsel and to base its findings strictly on the evidence at trial, not on the comments of counsel in argument.
[107] A correcting instruction of this kind, in my opinion, would have left the jury in no uncertainty about the improprieties in the closing jury address and as to the proper way in which it was to approach its task. In this way, a thorough and properly framed correcting instruction to the jury could have remedied the serious prejudice that I conclude arose from the impugned address.
[108] Fargione submits that the trial judge erred in his charge to the jury: (i) by commenting “disproportionately” on Landolfi’s evidence about his injuries and post-accident condition; and (ii) by failing to fairly review the defence medical evidence on malingering. With respect to the latter contention, Fargione also maintains that when the trial judge did comment on the defence medical evidence, he focused on the frailties of this evidence to the virtual exclusion of the affirmative aspects of the defence experts’ testimony. I agree.
[109] The parties were sharply divided on the core issue of the nature and extent of Landolfi’s injuries. The opinions of the parties’ medical experts on this issue were dramatically different. The cornerstone of the defence position on damages was the claim that Landolfi was malingering and that he fabricated or exaggerated the nature, severity and duration of the injuries sustained by him in the collision. Thus, as I have earlier indicated, Landolfi’s credibility and that of the medical experts was central to the jury’s deliberations on damages.
[110] In these circumstances, it was critical that the trial judge provide a balanced and complete instruction to the jury on the defence evidence supportive of malingering. In my view, with respect, he failed to so do. I say this for the following reasons.
[111] The evidence of malingering was relevant to whether Landolfi suffered a brain injury, to the severity of the admitted soft tissue injury to his neck, and to the prognosis for Landolfi’s recovery from the injuries occasioned by the accident.
[112] However, in connection with the contested issue of whether Landolfi sustained a brain injury in the accident, the trial judge failed to review the defence medical evidence supportive of malingering in any meaningful way. Moreover, those comments that the trial judge did make concerning the defence medical evidence on this issue focused on the testimonial weaknesses of the evidence and minimized its value. The trial judge stated:
Both Dr. Feinstein and Dr. Hanick explained why the reports of Dr. Nicholson and Dr. Reznek fail to find that Frank Landolfi had suffered a mild traumatic brain injury. They pointed out the unreliability of the tests. They pointed out the failure to look at everything and to conduct sophisticated imaging tests.
…
In cross-examination, both Dr. Nicholson … and Dr. Reznek … both conceded in cross-examination that Mr. Landolfi may have suffered a mild traumatic brain injury.
….
Dr. Reznek and Dr. Nicholson both said that Mr. Landolfi was malingering. They base their opinion on tests and their interviews [emphasis added].
[113] In contrast, the trial judge reviewed in some detail the opinions of Landolfi’s experts that a traumatic brain insult resulted from the collision. He also commented favourably on the evidence of Landolfi’s early return to work following the accident and his diligent work ethic, and he stressed that the evidence of Landolfi’s experts indicated that Landolfi did not fit the profile of a malingerer. He instructed the jury:
Doctors Moro, Feinstein and Hanick all said he was not malingering. They said the tests used by Doctors Nicholson and Reznek were unreliable. That you must look at the entire picture and that Mr. Landolfi does not fit the profile of a malingerer. His life, as he led it, does not fit the profile of a malingerer [emphasis added].
[114] The trial judge’s instruction to the jury on the evidence of malingering in relation to the severity of Landolfi’s neck injury suffered from the same defects. Of the defence evidence relevant to this injury, the trial judge commented only on Dr. Hunter’s testimony. Having said merely that the jury should consider Dr. Hunter’s evidence and that Dr. Hunter offered the opinion that Landolfi was malingering and gave an “Academy Award performance”, the trial judge observed:
In evaluating Dr. Hunter’s evidence you should consider that he did not read all of Dr. Moro’s notes. You should consider that he did not look into the reasons why Mr. Landolfi retired or why he left the social club [emphasis added].
[115] Subsequently, the trial judge continued in a similar fashion:
You must consider all of the experts’ evidence, the Doctors Moro, Feinstein, Hanick, Ogilvie-Harris, Nicholson, Reznek, Hunter and Mr. Smith… The same evidence and factors must be considered by you on malingering as you considered to determine if he was malingering on the traumatic brain injury.
Doctors Moro, Feinstein, Hanick and Ogilvie-Harris they all say that Mr. Landolfi has chronic pain, both psychiatric and physical. They all say that each aggravates the other. They all say that Mr. Landolfi is not malingering and they have explanations as to why Doctors Nicholson, Reznek and Hunter were wrong when they say Mr. Landolfi was malingering [emphasis added].
[116] Defence counsel objected to the trial judge’s instructions on malingering, asserting that the trial judge failed to outline for the jury the conclusions on malingering reached by the defence medical experts and the basis for those conclusions. The trial judge did not recharge the jury on this issue.
[117] Instead, based on objections to the charge by plaintiffs’ counsel, the trial judge indicated in his recharge that Dr. Nicholson (one of the defence medical experts) had not testified that Landolfi was a malingerer and that Dr. Reznek (another defence medical expert) based his original opinion of Landolfi’s malingering on an inaccurate factual assumption related to Dr. Moro’s notes.
[118] Both of these clarifying instructions were accurate and, in that sense, unobjectionable. However, given the limited and negative content of the trial judge’s original charge concerning the defence medical evidence and the absence of a correcting instruction on the defence evidence of malingering, they reinforced the impression that the defence evidence of malingering was of limited worth. Moreover, the defence evidence of malingering consisted only of the video surveillance evidence, which the trial judge excluded, and the opinion evidence of the medical experts. The exclusion of the video evidence thus heightened the need for the requisite correcting instruction.
[119] In these circumstances, I conclude that the trial judge provided the jury with almost no assistance concerning the defence medical evidence and how it supported the defence claim of malingering by Landolfi. In effect, the defence case on damages was never squarely put to the jury.
[120] I recognize that trial judges are not required to review in detail the evidence of each witness in their jury charges in civil negligence cases. This would impose an excessively exacting burden on trial judges. However, they are obliged to direct the jury’s attention to the issues of fact arising from the evidence and to the evidence bearing upon those issues: see Smith v. Wheeler (1974), 1 O.R. (2d) 329 (C.A.) at 331; Brochu, supra, at para. 67; and, in the criminal law context, R. v. Harriott (2002), 161 C.C.C. (3d) 481 (Ont. C.A.) at para. 58 per Doherty J.A., dissenting on other grounds; and R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.) at para. 27. The trial judge’s charge to the jury in this case fell short of this requirement.
[121] Under s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), this court may only direct a new trial in a civil case if a substantial wrong or miscarriage of justice has occurred. This authority may only be exercised where the interests of justice plainly require a new trial: see Arland and Arland v. Taylor, [1955] O.R. 131 (C.A.); and Brochu, supra. The concept of “miscarriage of justice” under s. 134(6) of the CJA extends to situations where the jury in a civil case may have been influenced by irregularities in the conduct of the trial: see de Araujo, supra, at para. 69.
[122] The Landolfis argue that this threshold for appellate intervention is not met in this case. They emphasize that the jury awarded Landolfi general damages within a reasonable range and limited damages for past, but not future, income loss. They maintain, therefore, that regardless of any error in the conduct of the trial, the jury was fair to the defence and no substantial wrong or miscarriage of justice occurred.
[123] Although it is true that a jury’s damages award may provide some assistance in determining whether, notwithstanding errors in the conduct of the trial, the jury nonetheless arrived at a fair and just verdict, I am not persuaded that this outcome was achieved in this case.
[124] The critical issues in this trial were whether Landolfi was seriously injured in the accident and the extent and duration of his post-accident injuries attributable to the collision. These were matters to be determined by the jury prior to its quantification of any damages to be awarded. Thus, on these facts, the jury’s damages award is no answer to whether its pre-quantification deliberations were tainted by a prohibited reasoning process. I agree with Fargione’s counsel that if the errors in this case had not occurred, the jury’s consideration of the defence of malingering, as well as its assessment of damages, may well have been different.
[125] It is unnecessary to determine whether any one of the errors by the trial judge, by itself, is sufficient to warrant a new trial. I have no hesitancy in concluding that the cumulative prejudicial effect of the errors that I have described compromised fundamental trial fairness, rendering it far from certain that, if the errors had not occurred, the jury necessarily would have returned the same verdict. Consequently, a miscarriage of justice occurred and a new trial is required.
[126] Accordingly, for the reasons given, I would allow the appeal and, if the parties are unable to effect a compromise, direct a new trial. Fargione is entitled to her costs of the appeal on a partial indemnity basis, fixed in the amount of $25,000, inclusive of disbursements and G.S.T. I would reserve the costs of the first trial to the judge conducting the second trial, should a second trial become necessary.
“E.A. Cronk J.A.”
“I agree. D.H. Doherty J.A.”
“I agree. J.L. MacFarland J.A.”
[1] Plaintiffs’ counsel began his closing address to the jury by stating:
Members of the jury, before I actually begin my closing remarks to you I am going to deal with what Mr. McCartney [defence counsel] had to say. I’m going to deal with most of it later on in my remarks but I want to deal with just a couple of things that he said at this point. He said that the plaintiff’s case stands on what Mr. Landolfi said, and that you have to believe him. Well I’ll point out something to you now, at least Mr. Landolfi was a witness who testified in this trial. The defendant’s case is based on what Mr. McCartney says. It is not based on evidence. What he told you about all of that was what he says, not what doctors say.
Mr. McCartney also said that you have to watch out for whoppers, whoppers of lies. Well let me show you a couple of whoppers that you just heard. Mr. McCartney told you that when my client filed shortly after the accident a form called, an accident benefits’ form, that that was evidence of his intention to start a lawsuit and satisfy the first criterion of that four criteria for malingering. Well Mr. McCartney flat-out misrepresented that document to you… It is a mandatory file that Mr. McCartney told you a whopper of a lie when he said it satisfied the first criteria.
Let me give you another whopper he gave you. He said that Mr. Reyes, a coworker, testified that even after the accident, even in his chronic pain that Frank Landolfi was lifting 80 pound bags and pouring it into a mixer. Well Mr. Reyes, according to the record did not say that.
…
Then the other whopper that Mr. McCartney told you was again that his client saw the plaintiff two or three minutes after the accident. I guess what she says under oath doesn’t count. I’m going to read it to you again… Yet Mr. McCart-ney has the [gall] to misrepresent that as well.
…
I told you at the opening that your job in this trial was to evaluate credibility, not just credibility of witnesses but credibility of the plaintiff’s counsel and credibility of the defence counsel. Were they taking a reasonable position, does it make sense to you.
….
You can rest assured that Mr. McCartney had investigators out there trying to find somebody to contradict Frank and he couldn’t. So what does he do, comes in here and makes things up because his doctors didn’t help him.
…
Dr. Hunter is biased to the nth degree and I will demonstrate that. He serves his master no matter what. He never considered that Frank went back to work because he was motivated. He felt it was his duty to, and maybe he needed the money as well. There was no evidence about that so I am very reluctant to suggest that as an answer to you. Mr. McCartney isn’t reluctant to suggest any evidence to you regardless of whether there is evidence.
[2] Thereafter, plaintiffs’ counsel continued:
Mr. McCartney, who used to work with me about ten years ago, must have gone to medical school in the interim because how else can he stand up here and tell you that based on something that no doctor testified to, in fact they testified the opposite, that he knows, Dr. McCartney knows, that Frank was going to retire because of heart problems. He made up this chart. Was he trying to lead you to the right conclusion or mislead you into a nonsensical conclusion?… He has the nerve to come up here in front of you and say, the knees may have caused him to retire. Dr. Hunter said no such thing in cross-examination, he denied that… If he wanted to come to you and say that Mr. Landolfi retired because of his knees then ask yourself if you can rely on a lawyer who doesn’t ask the orthopedic surgeon to answer the question, did his knees cause him to retire? So not only did Mr. McCartney mislead you verbally but he is misleading you in writing.
…
Do you want to hear another whopper? I’ll tell you another whopper. When Mr. McCartney said, that the stroke occurred after the accident that was a whopper. Dr. McCartney knows what no other doctor could tell us. The evidence was we don’t know when that stroke occurred. It was a silent stroke. The patient didn’t know when it occurred. Yet McCartney tells us, Dr. McCartney, it happened after the accident.
…
Well I guess if you want to play with the evidence and not pay any attention to it and just use speculation then you can ignore an entry one month after the accident that said, he was having trouble at work.
….
It doesn’t matter what the evidence is if Mr. McCartney can use it to somehow say it supports his position, he will do it.
Mr. McCartney has dealt me constant innuendo about this heart attack.
…
Speculation is when Mr. McCartney talks about platelets and Viagra and in Dr. McCartney’s opinion he was going to have a problem.
….
So Mr. McCartney knows what no doctor knows, he knows when the stroke occurred. Mr. McCartney knows what no doctor knows that the stroke was not silent but that it had an impact on Mr. Landolfi’s ability to think. Why should the jury consider the obvious in a crash like this, and the blow to his head when they can have Dr. McCartney’s conclusions?
…
So if you can’t find evidence Mr. McCartney’s rule seems to be, make it up.
….
Dr. Moro expressed the opinion in his notes, which you will have, on [numerous] occasions that Frank had a chronic pain condition from which he would not recover. He was joined by Dr. Feinstein, Hanick and Ogilvie-Harris and certainly for the most part, Dr. McCartney’s doctors in the following conclusions [emphasis added].
[3] In his closing address, plaintiffs’ counsel made the following insurance company-related statements:
Yet Mr. McCartney is arguing liability, and I’ll get to that question of who is calling the shots here. Why does his client say that there was no fault on the plaintiff and yet the lawyer is arguing liability. This is incredible.
You will have to decide whether Mr. McCartney has been insulting all of our intelligence on this issue.
….
There was a point last week or so when Mr. McCartney stood up… declaring my client is Ms. Fargione, that’s what he said. Ms. Fargione, who is supposed to be the client, who is supposed to give lawyers instructions, said there was no fault on Frank Landolfi… Well if Mr. McCartney is still arguing liability despite what his client so-called client says, whose orders is he marching to?
….
So it comes down to this, Mr. Landolfi and Ms. Fargione, the two drivers, a plaintiff and defendant, both agree the accident was Ms. Fargione’s fault. Under those circumstances I don’t know who’s telling Mr. McCartney to argue liability. But I suggest you can safely accept, when both participants in the accident agree that it was all one person’s fault you can’t let a lawyer use speculation to change our mind in any way about it.
….
But let’s consider this, Mr. McCartney’s client has very substantial resources. Mr. McCartney in defending a case does not have to worry about the cost of his defence.
Now Frank Landolfi works in Commercial Bakery, Commercial Bakery has over 200 employees. Mr. Landolfi is a member of Club Volturno, Club Volturno has over 200 members. Mr. McCartney, with his resources, couldn’t find one person, not one person out of 400 or more who would come to this court and say, no that’s not Frank’s intention, he intended to retire at 63, 65. You can rest assured that Mr. McCartney had investigators out there trying to find somebody to contradict Frank and he couldn’t. So what does he do, comes in here and makes things up because his doctors didn’t help him.
Then he said, Frank Landolfi had a financial motive to put this on…Would you think that somebody who had the state of mind that Mr. McCartney slanders Frank Landolfi with, would have gone back to work for over three years if that’s what he was trying to do, if he was a malingerer, untrustworthy and all the rest?
.…
What do you think Mr. McCartney’s client would have said if my client never went back to work? Do you think the words malingerer and Academy Award performance would have sufficed? I doubt it. They would have called him every name under the sun because that’s the business they’re in. They would have said he’s looking for a free ride [emphasis added].
[4] With reference to Dr. Hunter’s evidence, in addition to the above-quoted remarks, plaintiffs’ counsel commented:
He cared so little for accuracy and integrity and for the life of Frank Landolfi that he didn’t wait until he got clinical notes that he could read, that showed a road map. He just wrote his report and shipped it off as soon as he could.
I did not bring up the fact that he works for insurance companies, he did. He put it right on his resume and then in his testimony to Mr. McCartney he said, or it was maybe to me, he said I see four or five patients a week 200 a year, 40 weeks a year for insurers, that’s [what] he said.
Does anybody think that they would be sending him five a week if he wasn’t writing the kind of reports they wanted to receive? How can the person who hired him be content with a doctor who says, I didn’t read the clinical notes and records and I came to no conclusion about why he retired? [emphasis added]