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December 2017

The Personal Injury Bar's Worst Fear: Not Enough Evidence to Put Question to a Jury

David Elmaleh
David Elmaleh

Alexander Steffen
Alexander Steffen,
Law Student

By David Elmaleh and Alexander Steffen

Recently, in Day v Haiderzadeh,1 the Ontario Superior Court of Justice reiterated settled law that evidence given in support of a potential question to be given to a jury cannot be based on pure speculation in future care costs claims. Rather, any question must include a minimum amount of objective evidence for a potential jury to calculate that amount. In this case, the court held that the evidence provided was wholly insufficient and invited a jury to speculate and generate a number “out of thin air”. All potential questions were rejected.

This case is an important reminder that, for any potential questions to be asked to a jury, an adequate and relevant amount of evidence must be put forward. It also demonstrates that courts are increasingly resisting potential jury questions that could cause uncertain and inaccurate determinations of future care costs.


This ruling on jury questions stems from an action brought by Marta Day as a result of a motor vehicle accident that occurred on December 12, 2012. While liability has been admitted, the issue of causation and damages are still to be determined. At the conclusion of the case prior to trial, counsel brought up the issue of whether the proposed jury questions should be put to a jury for deliberation.

The questions are reproduced below:

  1. At what amount, if any, do you assess the damages sustained by the Plaintiff as a result of the December 12, 2012 accident for each of the following...
    1. Future loss of income?
    2. Future medical treatment?
    3. Future mileage expense to medical appointments?


While plaintiff took the position that there is sufficient evidence from which the jury could answer the proposed questions, the court rejected all three questions unequivocally.

To get to that holding, the court held that an adequate amount evidence is required in order to put a question to a jury. The court cited previous case law that stated that a “question need not be put to the jury unless there is some evidence on which a jury, acting judicially in accordance with that judge’s instructions on the law could reasonably make a choice in arriving at a finding.”2

... for any potential questions to be asked to a jury, an adequate and relevant amount of evidence must be put forward.

Applying this principle to the first question regarding a determination of the future loss of income, the court held that evidence was insufficient. Evidence provided by the plaintiff’s counsel included the plaintiff’s job history. The plaintiff testified that while she was a bus driver for Barrie Transit prior to the accident, she was in the process of applying for another job Mississauga Transit, where she was hired. When questioned, she expressed a concern about continuing to drive for Mississauga Transit due to her chronic pain and she did not know whether she would retire early. She later testified that she had no intention to retire early. Moreover, the plaintiff’s provided evidence of Dr. Alpert, an orthopedic surgeon, which testified that an individual who is diagnosed with chronic pain syndrome would likely reduce work life expectancy by 50%.

The court did not see this evidence as anywhere close to being adequate. The court held that there was no evidence to establish that the plaintiff would have taken early retirement or have taken a different job at a lower salary. As well, the court noted that prima facie, the lack of actuarial evidence is not fatal to a potential question because the standard is real and substantial and not of a balance of probabilities.

Regardless, the court found no evidence of:

  1. How long the plaintiff could or would continue to drive a bus for Mississauga Transit;
  2. The potential for other employment;
  3. Any contingencies;

    Offering pure speculation as evidence is wholly insufficient not only for the court, but also for potential jurors.

  4. Reduction of the plaintiff’s pension due to early retirement;
  5. Any vocational assessments; or,
  6. A determination of potential economic loss.

The court also found that Dr. Alpert was not qualified to bring vocational or occupational expert evidence.

Accordingly, the court held that this question “would be to invite [the jury] to speculate and pull a dollar figure out of thin air” with the court stating that there should there should be at least some evidence that a jury could use to calculate a claim for future income loss.

Not surprisingly, the court also rejected the two other questions for lack of sufficient evidence for the same reasons. For the second question regarding the determination of future medical treatment, the court soundly rejected the sufficiency of a past pattern of chiropractic, massage, and previous medications as the plaintiff did not offer any specific information relating to the frequency or the cost of those treatments. The court rejected the third question regarding future mileage for a similar reason, as the court was not given any other information other than the vague location of the plaintiff’s chiropractic office.


As seen in this case, putting questions to a jury requires an adequate evidence in order for the jury to make a sensible determination in future loss claims. Offering pure speculation as evidence is wholly insufficient not only for the court, but also for potential jurors. This case provides a good example, and a word of caution, to both plaintiffs and defendants when proposing potential jury questions. As such, counsel should provide adequate and sufficient information if it is to be given to a jury. While actuarial evidence is not needed per se, any proposed questions that do not use such information must include a significant amount of relevant information for a jury to make an accurate determination in future loss claims and be approved by the judge.

1 2017 ONSC 7319
2 Walker v Delic, [2001] OJ No 1346 (SCJ).