May 18, 2020

The lesson from Girao v Cunningham: fight fair and follow the rules

Girao v. Cunningham, 2020 ONCA 260 (CanLII)

The Ontario Court of Appeal's recent decision in Girao v. Cunningham has important implications for personal injury litigation, and civil litigation trials more broadly. Girao concerned a self-represented plaintiff who had been involved in a motor vehicle accident. She took her case to trial and the jury awarded her $45,000 in general damages and $30,000 for past loss of income. Due to the application of Ontario's Insurance Act, her damages were reduced to zero and she was ordered to pay the defendant's costs in the amount of $311,845.34. She appealed and was successful. The Court of Appeal ordered a new trial.

There are several key takeaways from the Court's 175-paragraph ruling authored by Justice Lauwers, but there are two that in my view deserve to be highlighted. The first is the balance that all litigators must strike between being zealous advocates for their clients and officers of the court. The second is the application of the rules of evidence in a trial, and particularly expert evidence.


The dual role lawyers play

Litigants are sometimes surprised to learn that their lawyers have obligations not only to them but to the court and the justice system more broadly. Lawyers are expected to deal fairly with the other side, ensure they do not mislead the court, and generally make concessions where appropriate. If, for example, there is an unfavourable but binding decision that is directly on point, the lawyer must bring it to the court's attention.

A lawyer's obligation as an officer of the court is that much more pronounced when dealing with a self-represented litigant on the other side (meaning that the party does not have a lawyer). When both parties are represented by counsel, each lawyer can reasonably rely on the fact that his or her "friend" (the name we give to the opposing lawyer in Canada) is well-versed in the law and trial procedure and can put forward their client's case in a competent manner. Perhaps more importantly, the trial judge can feel assured that both parties are having their cases presented fairly. Our system of justice is adversarial, meaning that, with few exceptions, judges do not perform independent investigations or research. By and large, they rely upon the submissions of counsel to determine what the law is and how it ought to be applied in the case before the court.

Where one of the parties is self-represented, the trial judge often only receives submissions from a single lawyer or 'side'. It is therefore incumbent upon that lawyer to assist the court in understanding the procedural background of the case, evidentiary issues and the law more generally. A lawyer cannot be expected to protect the self-represented party's interests, but he or she is absolutely expected to treat the party fairly. Similarly, the trial judge must tread carefully when dealing with a self-represented litigant, recognizing that they are most often legally unsophisticated. In the best of times, the trial judge will work with the lawyer to ensure that the process is fair to all sides.

In Girao, the Court of Appeal concluded that this standard had not been met. Counsel submitted a document brief, which was misleadingly labelled "Joint" despite the fact that the plaintiff had not provided any input. The documents that had been included in the brief were favourable to the defence and were, in some respects, prejudicial to the plaintiff's case. Beyond that, defence counsel put forward problematic positions on evidentiary issues, which, in the absence of an objection from an opposing lawyer, the court accepted as correct. The Court of Appeal took the view that the trial judge should have asked counsel for more assistance on the legal issues to ensure that the process was fair to the plaintiff, but instead "he allowed himself to be led by trial counsel’s arguments." As a result, "Ms. Girao, a self-represented, legally unsophisticated plaintiff who struggled with the English language, was left to her own devices."

Balancing these dual obligations - to the client and to the administration of justice - can sometimes appear difficult. But in my opinion, these obligations are not usually as conflicting as they may appear. As I discussed with Justices Grant Huscroft and Darla Wilson at the recent Runnymede Society Law & Freedom Conference, a lawyer who treats the other side fairly, who is honest in reciting the facts and who makes concessions unfavourable to the client's case where necessary will gain the trust and respect of the court. This is essential when it comes to persuading the court of one's central argument. Judges do not take kindly to being led astray and we would be naive to think they do not talk to one another about counsel. The quality that a client should be looking for in his or her lawyer is not merely a passionate and assertive advocate - though this is of course essential - but someone who has credibility with the court.

Admissible evidence

The Girao decision is also an important reminder that trials cannot be evidentiary free-for-alls. In our system, all evidence sought to be admitted into the record must be relevant and must not be subject to an exclusionary rule. The trial judge also has the discretion to refuse to admit evidence where the prejudicial effect would outweigh the probative value. The trial judge must always act as the "gatekeeper," ensuring that the jury only hears legally admissible evidence.

In Girao, the Court of Appeal concluded that certain evidence ought not to have been admitted - namely the amount the plaintiff had received from her statutory accident benefits insurer. While the details of an accident benefits settlement can, in certain contexts, be relevant, there was nothing in the pleadings that put the settlement in issue, and the way in which counsel sought to adduce the evidence was highly prejudicial to the plaintiff - by way of a "mocking and belittling cross-examination." Beyond that, the trial judge had done nothing to insulate the prejudicial effect of the evidence. Aside from reining in counsel's cross-examination, he could have provided the jury with a limiting instruction regarding what they were permitted to infer from the settlement. However, this was not done and the Court of Appeal found that it tainted the trial process.

Girao also reaffirms that expert evidence must be dealt with in a principled manner. With certain narrow exceptions, opinion evidence is presumptively inadmissible. Opinions can be offered by experts if certain criteria are met, and Girao highlights the various hurdles expert evidence must overcome before being admitted into the record. I refer to these, respectively, as the threshold requirement, the scope of the opinion and the method of testimony:

  • The threshold requirement: Expert evidence can only be admitted if it satisfies the Mohan/White factors. That is, the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified, assuming there is no novel science issue.
  • The scope of the opinion: An expert can only testify within the bounds of their qualification at trial. Lawyers who are seeking to qualify experts must ensure that they do not ask the court for a qualification that is too narrow, as this may preclude the expert from opining on certain matters. Beyond that, experts must comply with rule 53.03 of the Rules of Civil Procedure and sign an Acknowledgement of Expert's Duty in which they undertake to offer an opinion that is fair and impartial. The Ontario Court of Appeal has previously stated that experts who are not qualified under rule 53.03 may still offer certain limited opinion evidence (for example, a treating doctor can testify regarding a diagnosis that was made at the time of treatment). However, the right to offer more fulsome and comprehensive opinions is reserved for experts who have complied with Rule 53.03. In Girao, the Court of Appeal found that one of the plaintiff's experts ought to have been permitted to testify on the substance of his report, despite having not complied with r. 53.03.
  • The method of testimony: Experts must be present to testify at trial so that the opposing party has the opportunity of cross-examination. An expert report is, in the absence of its author testifying, inadmissible hearsay. Section 35 of Ontario's Evidence Act establishes the "business records" exception to the hearsay rule. The purpose of this section is to allow for the admission of uncontroversial records that were written contemporaneously with the events in question (for example, a nurse's notes) without having to call the individual who authored the records. But the courts have consistently interpreted s. 35 to exclude opinion evidence - and in fact, records that are being admitted under s.35 are typically redacted to remove any semblance of 'opinion'. The one qualification to the normal rule that experts must testify in court is section 52 of the Evidence Act, which permits a party to file an expert report rather than calling the expert. But in these circumstances, the expert must still be made available for cross-examination. In other words, s.52 allows the parties to streamline the process by eliminating examination in chief, but the expert is still subjected to having his or her opinions tested in open court. In Girao, the trial judge appeared to conflate or confuse sections 35 and 52 of the Evidence Act and allowed an expert's report to be admitted into evidence for the truth of its contents without affording the plaintiff her right to cross-examine the report's author.

Many civil trials can be fairly criticized for taking an overly relaxed approach to the rules of evidence - virtually everything is admitted and the trial judge instructs the jury as to relative "weight" each piece of evidence should be afforded. The Court of Appeal's decision in Girao affirms that the traditional rules of evidence have not been displaced. Girao also ably demonstrates that when a principled approach to procedure is abandoned in favour of expediency or practicality, it is often the most vulnerable in our society who suffer - in this case a self-represented plaintiff who was not a native English speaker. The Court of Appeal was able to provide a remedy because the unfairness at trial was flagrant and multi-faceted. In many other cases, however, the deficiencies in the trial process will be far more subtle and will not lend themselves to appellate intervention. Trial judges must therefore be counted on to apply the rules of evidence in a principled fashion so that both parties receive the benefit of a fair trial.