Lessons From Gopie v. Ramcharran: A Case Comment And Review Of Issues On Appeal In Civil Jury Trials

The Ontario Court of Appeal recently dismissed an appeal brought by the plaintiff following an adverse outcome after a trial that occurred in 2016. In doing so, the Court dealt with five major issues, highlighting and clarifying the law in a manner which demonstrates just how difficult - although certainly not impossible - it can be to overturn a civil jury verdict.

What follows is a brief summary of the decision and the major issues addressed, including: the admissibility of criminal convictions in a civil action, the scope of permissible expert evidence, causation, the failure to object to a jury charge, and costs.

A review of these topics as they appear in Gopie v. Ramcharran[i] provide a useful summary of many of the key issues that commonly arise in the context of civil appeals.

Background

Following an eight week trial, the jury returned a verdict of $186,000, which was significantly less than the defendant's pre-trial settlement offer of $500,000 plus costs. Once the damages, pre-judgment interest and costs awarded to the plaintiff were set off against the costs the trial judge awarded to the defendant, the plaintiff recovered nothing and owed the defendant a further $22,406.37.

In short, it was a disastrous result for the plaintiff who, having turned down half a million dollars plus costs, was now in debt to the tortfeasor for over $20,000. So an appeal was launched - and dismissed. This outcome serves to highlight many of the key issues which arise in appellate advocacy and the uphill battle facing all appellants who pursue an appeal of a civil jury verdict.

Evidentiary Issue: Criminal Convictions

On appeal, the plaintiff argued that it was improper for the trial judge to have allowed the jury to consider evidence of the plaintiff's criminal convictions for the purposes of assessing his credibility.

The Court of Appeal noted that Mr. Gopie was the first to call evidence of his character and bad behaviour, including evidence regarding his convictions and other prior unlawful conduct. The plaintiff's argument at trial was that he was of good character before the accident and his bad behaviour following the accident was the result of an ongoing emotional disability caused by a brain injury he sustained in the accident. The Court of Appeal found that, having introduced evidence of Mr. Gopie's character, the respondent was entitled to challenge it.

Moreover, the Court of Appeal found it was proper and appropriate for the trial judge to instruct the jury that they could use the evidence of the plaintiff's criminal record and other unlawful conduct, for two purposes: first, to assess how, if at all, the accident impacted the plaintiff's judgment; and second, for the purposes of assessing Mr. Gopie's credibility. The Court found that the trial judge properly charged the jury in this regard.

Further, the Court noted that the trial judge provided a draft of her charge to counsel for review and comment prior to the delivery of the charge to the jury. Trial counsel for the plaintiff made no objection regarding the portions of the charge which dealt with the plaintiff's prior convictions.

The Court's finding in this regard illustrates that, in certain circumstances, a witness' criminal record may be admissible as evidence relevant to the issue of credibility. This is particularly so when the convictions contain elements of "moral turpitude", or speak to the party's propensity to tell the truth - or not (e.g.: fraud, perjury...