The Ontario Court of Appeal released the decision today in Placzek v. Green, 2012 ONCA 45, upholding the decision of Justice Helen Rady in dismissing a jury in a motor vehicle collision involving a plaintiff with fibromyalgia.
The plaintiff, represented at trial by Barbara Legate and Ryan Steiner, had two previous motor vehicle collisions, and suffered injuries when the vehicle driven by her husband was struck from behind on March 4, 2003. She claimed damages for pain in the head, neck and back; headaches; and numbness throughout the left side of her body. The plaintiff’s injuries were complicated by a history of fibromyalgia, diagnosed in 1991, which she claimed were aggravated by the collision. As a result, Justice Rady ruled,
 Given the complexity of Mrs. Placzek’s pre-motor vehicle accident health history and the accounting evidence, as well as certain tactical decisions taken by the defence, the jury was discharged for written reasons delivered earlier. Much of the expert evidence was filed on consent, thereby saving considerable trial time. In addition, Mr. Green was unable to attend court to testify because of impending cancer surgery. His examination for discovery transcript was admitted as his testimony at trial.
Justice Rady provided written reasons for her decision on April 7, 2010, after the trial,
10 Except where the matter comes within the list of exclusions prescribed by s. 108 of the Court of Justice Act or another statute, a party to an action may require that the issues of fact be tried or the damages be assessed, or both, by a jury. It has long been recognized that the right to a jury trial is a substantive one and a party may be deprived of that right for cogent and compelling reasons only. See, for example, Jackson et al v. Hautala (1983), 42 O.R. (2d) 153 (Div. Ct.), Sloan v. Toronto Stock Exchange,  O.J. No. 1808 (C.A.) and Landolfi v. Vargione,  O.J. No. 1226(C.A.).
11 However, the right to a civil trial by jury is not absolute. The Charter does not confer a right to a civil jury trial: Legroux v. Pitre,  O.J. No. 4505 (C.A.).
12 The onus is on the plaintiff in this case to demonstrate that justice will be better served by the discharge of the jury “…. when the facts, the law or both are such that a jury cannot reasonably be expected to be able to follow the evidence properly or to apply the judge’s charge properly … this must be determined on a case-by-case basis”: Campbell v. Singal (1989), 35 C.P.C. (2d) 283 (Ont. H.C.) as cited in DeBoer v. Bosweld,  O.J. No. 1721 (Gen. Div.).
13 In Ball v. Vincent,  O.J. No. 4340 (Gen. Div.) Abbey J. struck the jury where:
- * the plaintiff had a complex pre-collision medical history;
- * the plaintiff returned to work for a significant period between the time of the collision and the trial, necessitating several assessments of lost income;
- * the plaintiff had suffered two work related injuries between the time of the collision and the trial;
- * there was competing medical, actuarial, vocational and rehabilitation evidence;
- * the issue of the deductibility of collateral benefits had to be addressed.
14 Justice Abbey observed that “… the combination of these foreseeable complexities would present intolerable difficulties for a jury over the course of this trial and that as a result, the case is one which ought not to be tried by a jury.”
15 There are examples in the case law where a jury notice has been struck because the plaintiff was involved in multiple car accidents, creating complexity in assessing the damages attributable to each one See, for example, Wheater v. Walters,  O.J. No. 433 (Gen. Div.) and Gorman v. Falardeau,  O.J. No. 2213 (C.A.).
The Court of Appeal indicated that trial judges retain broad discretion to discharge a jury, which the court will not interfere with except in certain circumstances. In Hunt v. Sutton, Austin J.A. stated,
 The remaining issue in the appeal challenges the trial judge’s discharge of the jury upon the grounds of complexity and public commentary. The law in this regard is clear. The right to trial by jury is a statutory right and a substantial one. A judge, on the motion of a party, may strike out a jury notice or discharge a jury. The trial judge is in the best position to determine how to exercise that power. The decision of the trial judge to keep or to discharge a jury is an exercise of a discretionary power. An appellate court may not interfere with that exercise unless it has been carried out arbitrarily, capriciously or on wrong or inapplicable principles…
The analysis by the court of the trial judge’s decision is as follows,
 We had the benefit of a careful and critical review of the trial judge’s reasons for discharging the jury. As we read those reasons, paras. 16 through 20 speak to the anticipated complexity of the evidence relevant to the damage assessment. In the trial judge’s view, that complexity arose out of several aspects of the evidence. First, there was the respondent’s pre-existing medical condition and the need to determine the impact of that condition on the respondent’s post-accident medical condition (paras. 16-18). Second, there was competing expert evidence relating to the respondent’s loss of income and loss of future income claims. The respondent was a self-employed realtor and there were several factual variables relevant to her lost income claims. Those variables complicated the quantification of that claim (para. 19). Third, there was competing and somewhat complex medical, engineering and biomedical evidence (para. 20).
 Based on these evidentiary complexities, the trial judge concluded, at para. 21:
As a result, of all of the foregoing I am satisfied that this case is of sufficient complexity that it is in the interest of justice that the jury notice be struck.
 It was open to the trial judge to reach this conclusion. While counsel for the appellant mounted a powerful argument in support of his position that this was not really a complicated case at all, we cannot describe the trial judge’s characterization of the evidentiary complexity as arbitrary, capricious or unreasonable. Other judges may have reached a different assessment of the complexity of the evidence and declined to strike the jury. The fact that other judges may have exercised their discretion differently is, of course, not a basis upon which this court can interfere with this trial judge’s exercise of her discretion.
Evelyn ten Cate of Foster, Townsend, Graham and Associates, LLP wrote about the trial decision in The Lawyers Weekly,
It is difficult to see how the facts in Placzek differ from those in most complex chronic pain cases decided by juries regularly. Pre-existing complaints, other car accidents and subsequent accidents are part of the fabric of everyday life and are well-known to juries. Likewise, juries are often called on to make decisions based on conflicting testimony of medical, engineering and accounting experts. Their expertise, or the admissibility of their testimony, typically form the subject of a voir dire in advance of their testimony, and take place in the absence of the jury.
It remains to be seen whether other trial judges will follow Justice Rady’s lead or distinguish Placzek on its facts.
Kusnierz v. Economical Mutual Insurance Company, 2011 ONCA 823
In a much anticipated decision, the Ontario Court of Appeal overturned the findings of Lauwers J. and found that physical and psychological impairments can be combined to determine catastrophic impairment under cl. 2(1.1) (f) of the Statutory Accident Benefit Schedule (SABS).
The plaintiff suffered injuries in a motor vehicle collision which resulted in a below-the-knee amputation of his leg. In addition to his physical impairments associated with the loss of the leg, the plaintiff also suffered from significant psychological impairments.
The plaintiff took the position that he was catastrophically impaired in accordance with the SABS. Specifically, that he was catastrophically impaired in accordance with a combination of cl. 2(1.1)(f) and 2(1.1)(g) of the SABS. The relevant sections read:
(f) subject to subsections (2) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (Guides), results in 55 per cent or more impairment of the whole person;
(g) subject to subsections (2) and (3), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.
At trial, Lauwers J. concluded that it was not permissible to combine cl. 2(1.1) (f) and 2(1.1) (g). He further found that the plaintiff did not suffer a 55 per cent impairment under cl.2 (1.1) (f) alone. He concluded that combining physical and psychological impairments would be an inappropriate deviation from the “clear intentions of the legislature”
The plaintiff appealed the decision. On appeal MacPherson J.A. overturned the trial level decision in favour of the reasons employed by Spiegel J. in Desbiens v. Mordini (2004) O.J. No. 4735 (S.C.) [Desbiens]. In making his conclusion, Macpherson J.A. considered:
“the language of the SABS, the purpose of the Guides, the Guides’ references to combining physical and psychological impairments and the goals of the SABS.”
At pp. 25-26 MacPherson J.A. expressly endorsed the reasons and conclusions employed in Desbiens, finding that the plain language of cl. 2(1.1) (f) allows for a combination of physical and psychological impairment.
At p. 27 MacPherson J.A. noted that the trial judge ignored the Guides’ aim of assessing the total effect of a person’s impairments on his or her everyday activities. MacPherson J.A. found that:
An objective, standardized system of assessment is only useful to the extent that it can reflect persons’ actual levels of impairment. To disregard the mental and behavioural consequences of a person’s injuries because they are too hard to measure would defeat the purpose of the Guides.
At pp. 28-30 MacPherson J. listed a number of situations in which the Guides expressly recommend for an assessment of a person’s physical impairment to take into account mental and behavioural impairments. He concluded that the Guides’ examples are illustrative, rather than exhaustive and that:
[t]hese recommendations reflect the principle that a total impairment assessment must take both physical and psychiatric impairments into account… Accordingly, it seems… that combining physical and psychiatric impairments can be done “in accordance with” the Guides.
At paragraph 31 MacPherson J. found that combining physical and psychological impairments produces results which are consistent with the purposes of the SABS.
At paragraph 32 MacPherson J. concluded that allowing a combination of physical and psychological impairments “promotes fairness and the objectives of the statutory scheme.”
Giuliani v. Halton (Municipality), 2011 ONCA 812
The Ontario Court of Appeal recently affirmed the decision in Giuliani v. Halton (Municipality), upholding the decision of the trial judge that the municipality was liable for icy conditions on the highway in a motor vehicle collision on April 1, 2003. The plaintiff’s injuries were described by the trial judge,
 Ms. Giuliani’s injuries included bruising to the right forehead (consistent with a conclusion that she struck her head forcefully in the accident). She sustained a number of intra-abdominal injuries requiring an urgent laparotomy. She sustained multiple orthopaedic injuries, including a fracture to the left clavicle, fractures of the distal right femur, fractures of the right lateral tibial plateau of her right tibia. In addition, she had a right supra-condylar femoral shaft fracture. She sustained multiple left rib fractures requiring a left chest tube. In addition, she sustained injuries to her spleen which was lacerated, and to her bowel. Post-accident emergency surgery on April 1, 2003 led to the removal of her spleen and part of her bowel. Dr. Chu, a physician involved in treating the plaintiff immediately after her accident, in his report dated April 16, 2003, described her injuries as extensive and life-threatening (see page 46 of Dr. Chaimowitz’ expert opinion).
 At the time of the accident, the plaintiff was 39 years of age and was employed at Canfin Mutual Group where she performed clerical/administrative functions processing mutual fund purchases. Although Ms. Giuliani did return to work in June of 2006, for a time working both on a modified and full-time basis, at the time of trial she was not working and in receipt of accident benefits.
 She continues to experience chronic pain, headaches, anxiety and concentration difficulties. She has significant functional limitations and takes a variety of medications including Celexa for depression, Clonazepam for anxiety, and Ativan for panic attacks.
Municipal liability for highway maintenance is found in the Muncipal Act,
44. (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge. 2001, c. 25, s. 44 (1).
The Act also provides a number of defences to liability stemming from maintenance,
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.
The city attempted to rely on the Minimum Maintenance Standards (MMS) mentioned above as the basis for their defence. These exceptions to liability under the Act allow for a muncipality to provide a defence if it does not maintain a highway in a reasonable state of repair, even where it knows or ought to have known that of the faulty state. However, the MMS are not intended or recognized as an all-inclusive document (Thornhill v. Shadid). The MMS can be found under O. Reg. 239/02 Minimum Maintenance Standards for Municipal Highways, and were described by the trial judge in this case as follows,
 Section 5 of the MMS deals with icy roadways. It requires municipalities to deploy resources to treat icy roadways as soon as practicable after becoming aware that the roadway is icy and to treat the icy roadway within the time set out in the table after becoming aware that the roadway is icy. For a class 2 road, while resources must be deployed as soon as practicable after becoming aware that the roadway is icy, the time period for treating a roadway after becoming aware that the roadway is icy is 4 hours. I conclude that this section of the MMS does not apply. This was not a case of ice forming by freezing rain or as a result of ice pellets. Neither was it a situation where the Town was notified of a dangerous patch of ice on the road. This is a case of snow falling and covering the road which was then compacted by vehicular traffic into hard packed snow and ice or icy conditions at various places. The remediation, salting of the roads, was intended to prevent the compacting of snow and the creation of ice and slippery conditions. It makes no common sense to interpret this section of the MMS as being applicable in the circumstances of this case. If it were otherwise, municipalities could avoid any of their obligations to clear the roads of snow by waiting until the snow becomes compacted and turns into ice and then claiming that a new time limit is triggered from the time when the municipality becomes aware that the roadway is icy.
However, the trial judge erroneously referred to the current MMS regulations, O.Reg. 23/10, prompting the Court of Appeal to state,
 In his reasons, the trial judge incorrectly referred to the 2010 Regulation. However, the differences between the 2002 and the 2010 standards as they relate to the circumstances of this case are not material, nor did they play a role in the trial judge’s reasons.
The relevant part of the MMS at issue in the appeal was s. 5,
5. (1) The minimum standard for treating icy roadways is,
(a) to deploy resources to treat an icy roadway as soon as practicable after becoming aware that the roadway is icy; and
(b) to treat the icy roadway within the time set out in the Table to this section after becoming aware that the roadway is icy.
(2) This section only applies to a municipality during the season when the municipality performs winter highway maintenance.
Derry Road, where the accident occured, was classified as a class 2 highway, allowing for 4 hours for icy roadways. This section is only invoked though by the knowledge that a highway is already in an icy state,
 Section 5 of the MMS was directed at the situation when the roadway had become icy, not before. The standard’s requirement to deploy resources and treat was triggered by knowledge that the roadway is icy – present tense – not by knowledge that it may or will become icy. The standard did not address a municipality’s response to conditions that had not yet become icy. The standard provided for a timeline for treatment of the icy condition depending on the class of highway.
 In the present case, the allegations of fault directed at the appellants do not include a failure to treat the icy roadway within four hours of becoming aware of the icy conditions, as required by s. 5. The trial judge’s findings of default on the part of the municipality are directed at failures to take reasonable steps to avoid ice forming on Derry Road. The failures, as I mention above, included failures to monitor the weather and to have deployed resources much earlier than was done so as to avoid the formation of ice.
 Thus, in my view, the trial judge was correct in finding that s. 5 of the MMS did apply to the failures or defaults that underlay his finding of liability. I agree with the trial judge that s. 5 did not provide a defence to the appellants. This conclusion is supported by the language of the section and by common sense. As the trial judge said, at para. 165:
If it were otherwise, municipalities could avoid any of their obligations to clear the roads of snow by waiting until the snow becomes compacted and turns into ice and then claiming that a new time limit is triggered from the time when the municipality becomes aware that the roadway is icy.
The court interpreted s. 44(3)(c) as applying to the failure to monitor the weather and deploy resources to prevent the road from becoming icy. The default here was not that they failed to treat the roadd after becoming aware that it was icy.
The MMS does not establish any minimum standard for accumulation of less than 5 centimetres of snow on class 2 highways or treating a highway before ice is formed. The Minister of Transportation could have created standards in the MMS regulations to address this situation if they had chosen to do so. No defence from the MMS was available to the city in these circumstances.