The Longest Personal Injury Case in Ontario’s History? Davies v. The Corporation of the Municipality of Clarington, 2018 ONSC 4370 (CanLII)

The purpose of this entry of the Toronto Injury Lawyer Blog is to focus on a rather long personal injury case called Davies v. The Corporation of the Municipality of Clarington.

This is the case about a Via Trail derailment on what should have been a routine trip from Toronto to Montreal on November 23, 1999.

100+ passengers claimed injuries by way of class action.

Liability was sorted out by way of class action by way of trial in 2007.

But what wasn’t sorted out was the quantification of damages for one injured passenger; Christopher Zuber. Injuries, causation and the quantification of damages was the focus of this trial.

Mr. Zuber’s personal injury case in its entirety lasted around 17 years.

The trial took around 26 weeks (approximately 107 days to complete). It is believed this was the longest single personal injury jury trial in Ontario Court history (but we have no real concrete stats on it).

Here are some comments from the Honourable Justice Edwards about this case which speak for themselves on what it takes to suceed in a personal injury case, along with the state of modern personal injury litigation in Ontario. These comments are worth noting for any personal injury lawyer, or for any member of the general public with an active personal injury case on the go in Ontario. The comments of the Honourable Justice Edwards are also important to understanding how personal injury cases work, and are assessed in Ontario. Keep in mind, these are direct quotes from the Judge in this decision.

I have no statistics to suggest this is one of the longest personal injury damages trial in Ontario, but I strongly suspect there are few other civil trials that have consumed so much judicial resources.

The defence suggests the court should award the Plaintiff $30,000 in general damages. The Plaintiff, through his counsel, suggests the appropriate award should be $270,000 for general damages; $2,555,136 US per annum to age 65 for past and future loss of income (plus positive contingencies of 20-40%), less various amounts for amounts actually earned post-accident. The Plaintiff also suggests 63,733 PLN for out-of-pocket expenses and $100 CAD per week for future cost of care (housekeeping). By my calculation, converting the US dollar to Canadian, the Plaintiff seeks in excess of $60,000,000 in damages. To say that the parties have a different view of this case, is probably one of the understatements in personal injury litigation that this or any other court in this country has ever seen.

What makes this personal injury trial somewhat unique, is the absence of many of the usual types of documents that our courts typically encounter when called upon to determine a Plaintiff’s past and future loss of income. Something as fundamental as the Plaintiff’s personal tax returns prior to the accident were never produced, for reasons the Plaintiff asserts related to his lack of knowledge that he had a claim until well past the time when such documents are required to be kept in Poland.

The credibility of a Plaintiff in a personal injury action is almost invariably the determining factor in the outcome. A credible Plaintiff will usually do quite well in terms of the damages awarded. Conversely, a Plaintiff who lacks credibility may have difficulties in asserting his or her damage demands. Most Plaintiffs in a personal injury action begin the trial, and will often testify for the better part of a few days in-chief and in cross-examination. I had the opportunity to listen to Zuber’s evidence in-chief for approximately 21 days, and 7 days in cross-examination!

Zuber, for the most part, in his evidence in-chief had what can only be described as an incredible memory for the details of events, times, places and people, dating back many years. His evidence in-chief bore none of the earmarks of someone with a frontal lobe brain injury. In his cross-examination, when confronted with inconsistencies that required explanation he often fell back on the old tired refrain, “I can’t remember”.

As a witness he was often admonished by me to answer a simple question with a simple yes or no answer, or a brief response. Zuber impressed me as someone who wanted to expand on his answers as a method of demonstrating how important he was, and to demonstrate that he was someone of great knowledge who could justify the substantial sums of money he says he was paid

Zuber also was extremely defensive when cross-examined in areas that fundamentally went to his credibility. He took great exception to the suggestion that the defence did not accept the quantum of what he says he was earning before the accident.Zuber was also a witness who would anticipate the question that was about to be asked and volunteer an answer that was completely non-responsive to the question. In doing so, he did not impress me.
As previously noted, Zuber demonstrated an incredible memory for events, dates, times and places, when examined by Mr. Strype in-chief. That memory did not hold true when he was cross-examined. If Zuber had a brain injury it is difficult to conceive how his memory was so good when examined in-chief, only to have it disappear during cross-examination when it suited him.

As various witnesses were called to testify from Poland, it became quite apparent that Zuber had not complied with the witness exclusion order and, more importantly, ignored my explicit warning not to discuss his evidence with anyone…..The fact that there was contact weighs against Zuber’s overall credibility.

In my assessment of Zuber’s credibility, I have also considered Zuber’s previous conviction in Poland for falsely registering a motor vehicle and perjury as a factor weighing against his credibility….. Zuber was found guilty by the Provincial Court, 3^rd Criminal Division in Poland

The fact that someone convicted of a crime – whether in Canada or Poland has had their record “expunged” or pardoned, does not mean that the crime never happened. The pardon or expungement simply means, as Kalwas testified to, that the offender – in this case Zuber, can truthfully state they do not have a criminal record. It does not mean that the criminal act never happened.

Zuber’s evidence as to why he did not have many of the documents to substantiate his claim defies logic, and in my view unfairly places his lawyer in an untenable position.

…..if Zuber is not found to be a credible witness and the witnesses called on his behalf are also not credible, then there is no evidence in the Plaintiff’s pan.

A Plaintiff’s tax return, whether it is filed in Canada or Poland, is a prima facie starting point from which to assess what a Plaintiff has earned both pre and post-accident. A tax return, whether it is filed in Canada or Poland, reflects what the taxpayer says is the income he or she is required under the prevailing tax law to declare to the tax authorities.

There were far too many instances during the course of this trial where Zuber and his various supporting cast of witnesses were caught in inconsistencies and outright lies – as it relates to his claim for loss of income, for this court to accept Zuber’s theory.

The difficulty with any expert concluding that the various diagnostic tests give confirmation to Zuber’s complaints, is that Zuber’s evidence in this regard is very much suspect. Zuber never complained to anyone in the medical community upon his return to Poland after the accident that he was suffering from excruciating pain causally linked to the accident. His first complaint was that of hoarseness in his throat and problems with urination.

This court, while accepting he did have treatment, cannot simply guess at what that amount was when his credibility is so much in dispute.

So who is the real Mr. Zuber? One may ask, is he the person who revealed himself to the Polish tax authorities as someone earning a minimal income, or is he the person he asked this court to believe was earning well over US $2,000,000 per annum? Is he the person who says he was in excruciating pain immediately after the accident, or is he the person – as revealed in his medical records, as someone whose only real complaint on returning to Poland was of a benign nature?

One of the tools I suggest that will have to be under consideration in any civil trial is the imposition of time limits. Most litigants cannot afford a trial that lasts two or three weeks, let alone twenty-six weeks. Our judicial system simply cannot afford to allocate the time now taken up by many civil trials, where the amounts at issue (while significant to the litigants) does not correlate to the costs of the trial. The Supreme Court of Canada and the Court of Appeal both impose time limits. Recognizing the obvious differences between a trial court and an appellate court, the time has come where trial judges may feel it appropriate to take a firmer control of the precious time available to conduct a civil trial.