Lay-Opinion

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Date Retrieved:	2025-04-02
CLNP Page ID:	1442
Page Categories:	Evidence Law
Citation:	Lay-Opinion, CLNP 1442, <https://rvt.link/f9>, retrieved on 2025-04-02
Editor:	MKent
Last Updated:	2025/02/24

Canada v. McDonald, 2019 ONCA 367 (CanLII)

[19] Specifically, Mr. McDonald argued the following. First, that the trial judge erred by improperly relying on Canadian safety standards and lay opinion evidence in determining that Mr. McDonald’s actions constituted a marked and substantial departure from the standard of a reasonable person in the circumstances.

[20] We do not agree that the trial judge made any error in taking the safety standards into account. The incident occurred in Canadian waters. Furthermore, even in the absence of any regulation, it would have been open to the trial judge to find the absence of lifejackets to be a significant factor in his analysis of the standard of care applicable when crossing a navigable river in an open water craft.

[21] Similarly, the trial judge was entitled to accept the observations of a witness that the Sea-Doo capsized as an observable consequence of becoming unbalanced from having too many passengers.

[22] Second, Mr. McDonald argued that the trial judge improperly relied on a K.G.B. statement from the surviving witness to the effect that the Sea-Doo capsized once prior to the fatal incident. The objection is purely speculative and we do not accept it. The trial judge specifically refused to admit the surviving witness’s police statements and there is no mention of that evidence in his reasons for conviction. The fact that the trial judge made a stray reference to the first capsize event in his sentencing reasons does not lead to the conclusion that he also considered it in his reasons for conviction.

[23] Third, Mr. McDonald objects to the admission of a statement he made to an EMT worker that was recorded while he was seated in the backseat of a police cruiser, and that was overheard by a police officer standing outside of the cruiser. There is no need to address this issue in light of the fact that the evidence received was duplicative of evidence from other sources.

[24] The appeal from conviction is dismissed.

Saadati v. Moorhead, 2017 SCC 28 (CanLII), [2017] 1 SCR 543

[31] Confining compensable mental injury to conditions that are identifiable with reference to these diagnostic tools is, however, inherently suspect as a matter of legal methodology. While, for treatment purposes, an accurate diagnosis is obviously important, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but with symptoms and their effects (Mulheron, at p. 88). Put simply, there is no necessary relationship between reasonably foreseeable mental injury and a diagnostic classification scheme. As Thomas J. observed in van Soest (at para. 100), a negligent defendant need only be shown to have foreseen injury, and not a particular psychiatric illness that comes with its own label. In other words, the trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label could be attached to them. Downloading the task of assessing legally recoverable mental injury to the DSM and ICD therefore imports an arbitrary control mechanism upon recovery for mental injury, conditioning recovery not upon any legally principled basis directed to the alleged injury, but upon conformity with a legally irrelevant classification scheme designed to facilitate identification of particular conditions (L. Bélanger-Hardy, “Thresholds of Actionable Mental Harm in Negligence: A Policy-Based Analysis” (2013), 36 Dal. L.J. 103, at pp. 113-15; Mulheron, at pp. 87-88).

(...)

[35] In short, no cogent basis has been offered to this Court for erecting distinct rules which operate to preclude liability in cases of mental injury, but not in cases of physical injury. Indeed, there is good reason to recognize the law of negligence as already according each of these different forms of personal injury — mental and physical — identical treatment. As the Court observed in Mustapha (at para. 8), the distinction between physical and mental injury is “elusive and arguably artificial in the context of tort”. Continuing (and citing Page v. Smith, at p. 188), the Court explained that, “[i]n an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may . . . soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law” (emphasis in original; see also S. Deakin, A. Johnston and B. Markesinis, Markesinis and Deakin’s Tort Law (7th ed. 2013), at p. 124). This is entirely consistent with the Court’s longstanding view, expressed over a century ago, by Fitzpatrick C.J. in Toronto Railway, at pp. 269-70:

It would appear somewhat difficult to distinguish between the injury caused to the human frame by the impact and that resulting to the nervous system in consequence of the shock . . . . The nature of the mysterious relation which exists between the nervous system and the passive tissues of the human body has been the subject of much learned speculation, but I am not aware that the extent to which the one acts and reacts upon the other has yet been definitely ascertained. . . . I cannot find the line of demarcation between the damage resulting to the human [body] . . . and that which may flow from the disturbance of the nervous system . . . . The latter may well be the result of a derangement of the relation existing between the bones, the sinews, the arteries and the nerves. In any event the resultant effect is the same. The victim is incapacitated . . . .

Or, as Davies J. (as he then was) added in Toronto Railways (at p. 275), “[t]he nervous system is just as much a part of man’s physical being as the muscular or other parts”. In a similar vein, Lord Macmillan, in Bourhill v. Young (at p. 103), said “[t]he distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer’s system.”

[36] It follows that requiring claimants who allege one form of personal injury (mental) to prove that their condition meets the threshold of “recognizable psychiatric illness”, while not imposing a corresponding requirement upon claimants alleging another form of personal injury (physical) to show that their condition carries a certain classificatory label, is inconsistent with prior statements of this Court, among others. It accords unequal — that is, less — protection to victims of mental injury. And it does so for no principled reason (Beever, at p. 410). I would not endorse it.

Jones v. Niklaus, 2008 ONCA 504 (CanLII)

[27] Counsel for the appellant raises three arguments in support of his submission that the jury’s finding of contributory negligence is unreasonable. First, he argues that the jury’s conclusion on this issue cannot stand because the trial judge failed, in his charge, to caution the jury regarding the relative reliability of children’s evidence. According to the appellant, since the jury’s finding of contributory negligence was based solely on the evidence of the Niles children, that finding was unreasonable given this omission in the jury charge. Second, the appellant argues that the jury’s findings that Ms. Jones failed to keep a proper lookout and failed to keep proper control of her car are also unreasonable because they are based upon lay opinion evidence from the Niles children, taken primarily from their February 2002 statements, referred to above. According to the appellant, since the Niles children were not qualified to offer these opinions, they were “not entitled” to give such evidence in the first place or, if they were entitled to give the evidence, such evidence should receive no weight. Third, the appellant also attacks the jury’s finding that Ms. Jones failed to apply her brakes on the basis that it finds no support in the evidentiary record. For the following reasons, I disagree with these submissions and would decline to interfere with the jury’s finding of contributory negligence.