Trial judge in motor vehicle accident case says ear fluid evidence tainted jury
The Ontario Court of Appeal has ruled that trial fairness required an injured party to receive an opportunity to answer why he failed to report a significant symptom, such as fluid leaking from his ear, earlier to his treating practitioners.
Taylor v. Zents, 2025 ONCA 662, involved a March 2015 motor vehicle accident. The defendant was driving at a speed of 80 kilometres per hour when she rear-ended the plaintiff’s stopped car and pushed it off the road. The plaintiff’s vehicle became airborne, rolled over, and fell into a ditch.
The plaintiff told paramedics he had maintained consciousness and felt fine, though he had a bump on his head. However, the next morning, he said he felt confused, disoriented, and as if he had been “hit by a truck.” He received a concussion diagnosis during an emergency room visit.
In February 2017, the plaintiff started meeting a psychologist experienced in the neuropsychology field, who diagnosed him with post-concussion syndrome, traumatic brain injury, and adjustment disorder.
In March 2017, the plaintiff stopped working, allegedly due to his symptoms.
The plaintiff brought a personal injury suit alleging negligence against the defendant. He sought damages for past and future income loss and future care costs for his minor traumatic brain injury or concussion.
The injured party’s wife requested damages for loss of care, guidance, and companionship under Ontario’s Family Law Act, 1990.
A jury trial began. On the 12th day, a trial judge of the Ontario Superior Court of Justice declared, on her own initiative, that the defendant’s counsel had violated the rule in Browne v. Dunn, (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.).
In that case, the court stated that a party seeking to impeach a witness of the opposing side should cross-examine that witness regarding the impeaching material to allow them to explain any contradictions.
In the present case, the trial judge found that the ear fluid evidence irreparably tainted the jury and constituted hearsay because the plaintiff reported it to an intake doctor who had not testified.
Upon the motion of the injured party and his wife, the judge discharged the jury and proceeded with the trial alone. In January 2024, the judge awarded them over a million dollars.
On appeal, the defendant alleged that the judge erred in:
The Court of Appeal for Ontario dismissed the appeal upon determining that the trial judge made none of the alleged errors.
First, the appeal court ruled that the trial judge did not err in finding a violation of Browne v. Dunn. The appeal court rejected the defendant’s argument that the ear fluid evidence impeached the psychologist’s opinion, not the plaintiff’s credibility.
The appeal court explained that assailing the basis of the psychologist’s opinion on the head injury’s nature and extent inextricably included a challenge against the plaintiff’s credibility.
The appeal court said failing to cross-examine the plaintiff on why he did not tell his treating practitioners about the fluid leaking from his ear for years breached Browne v. Dunn. The appeal court added that his explanation was relevant to the credibility analysis.
Second, the appeal court held that the judge made no reversible error in exercising her discretion to discharge the jury, given that she was in the best position to decide whether the jury’s Rubicon had been crossed.
The appeal court noted that the applicant’s failure to report a significant symptom, such as fluid leaking from his ear following a blow to his head, to his treating doctors was a major point in this matter.
Third, the appeal court found no error in principle in the judge’s qualification of the plaintiff’s treating psychologist as an expert under r. 53.
The appeal court acknowledged that the judge did not explicitly follow the steps in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, or expressly consider the possible value of the psychologist’s evidence against any risks inherent in her testimony due to her relationship with the plaintiff. The appeal court accepted that the judge preferably should have done so.
However, the appeal court said the judge appropriately applied White Burgess in substance and provided detailed reasons for finding the psychologist capable of objectivity and impartiality.
Fourth, the appeal court saw no misapprehension of evidence in the judge’s assessment of damages and no error in her finding “overwhelming” evidence supporting that the plaintiff had sustained a head injury in the accident.
The appeal court concluded that the judge’s assessment flowed directly from accepting the evidence of the plaintiff, other lay witnesses, and medical witnesses who found that the plaintiff:
