The Ontario Court of Appeal’s recent decision in Girao v Cunningham,[1] provides important guidance to both trial judges and counsel. While the case is a personal injury action, the principles enumerated by the court are broadly applicable to all areas of litigation. This is the third of a three part series, focusing on the court’s directions regarding trial procedure and the preparation of a Joint Trial Brief. An overview of the trial and Court of Appeal decisions is detailed in our first blog. It addresses considerations that a trial judge and counsel must make when a party is self-represented. Our second blog focuses on principles related to the admission of expert evidence and the Evidence Act.
The Decision
The Court of Appeal found that there were several issues present related to the Joint Trial Brief submitted by the defendant/respondent (“Cunningham”), including how it was prepared and how the documents contained in it were marked as exhibits. These issues were found to have prejudiced the plaintiff/appellant (“Girao”). In addressing these issues, the Court of Appeal provided important direction to the bar regarding the preparation of the Joint Trial Brief and the use of exhibits. Considerations for the Joint Trial Brief related to self-represented litigants is addressed in our first blog.
The Joint Trial Brief
As described in our first blog, Cunningham prepared the Joint Trial Brief in a manner that enabled her to keep unfavourable expert evidence from the jury and the trial record. It was prepared with no input from Girao, and was selectively redacted to remove evidence that supported Girao’s claims. To avoid similar issues from arising in future cases and to make it difficult for trial counsel to employ similar potentially prejudicial tactics, the court directed trial counsel to answer the following questions about how the documents in a Joint Trial Brief should be treated:
- Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents?
- Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?
- Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial?
- Are the parties able to introduce into evidence additional documents not mentioned in the document book?
- Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book?
- Does any party object to a document in the document book, if it has not been prepared jointly?[2]
The trial judge should also consider these questions when looking to rely on a Joint Trial Brief and admit the documents contained within them. The court suggested that a written agreement between the parties answering these questions is recommended. This would ensure collaboration between parties in the preparation of the brief and a mutual understanding on the documents contained within them. This written agreement should be attached to the Joint Trial Brief in all civil cases. Furthermore, the trial judge and counsel should go through the agreement line by line to ensure that there are no misunderstandings between the parties before the brief is relied upon.[3] Had these questions been answered and reviewed at the start of the trial, it is likely that many of the issues raised by the Court of Appeal would have become apparent to the trial judge, allowing him to rectify them before any evidence was put before the jury.
Use of Exhibits
During a trial, documents can be introduced as a numbered or lettered exhibit. As the court noted, there is an important distinction between the two. Lettered exhibits are used for general identification, while numbered exhibits are used to mark evidence that has been admitted at trial. Subject to the trial judge’s discretion, lettered exhibits are not before the jury during their deliberations, while numbered exhibits are.[4] With respect to expert evidence, while the expert’s evidence is normally oral evidence, the court advised that the best practice in jury trials is to make the related expert report a lettered exhibit in order to preserve the integrity of the trial record for the purpose of an appeal.[5]
During the trial, the volumes of the Joint Document Brief submitted by Cunningham were marked as numbered exhibits. The trial judge accepted all the volumes under the assumption that a majority of the documents contained in them were going to be admissible, as opposed to going through the volumes and admitting the documents individually. The court noted that during the course of the trial, the trial judge did not exclude any documents from the brief. Normally, the documents would be marked as lettered exhibits for identification, and then made a numbered exhibit when it was admitted by the court. The trial judge was faulted for admitting all of the volumes for the sake of expediency, as such an action is not in line with his role as a gatekeeper with respect to the admission of evidence.[6]
Another issue raised by the court was related to the preservation of the trial record. One of Girao’s expert reports was struck, but as it was made a numbered exhibit it was not included in the trial record. This required Girao to add it again to her appeal book to ensure that the report was before the court. This could have been avoided if the report had been initially filed as a lettered exhibit and would ensure that a complete and accurate trial record is before the Court of Appeal.[7]
Conclusion
The preparation of a Joint Trial Brief should be a collaborative process between opposing parties to ensure that there is a common understanding with respect to what is contained in the brief and for what purpose the documents are being relied on. Having a written agreement that addresses the questions posed by the Court of Appeal above is an efficient means of ensuring the integrity and accuracy of the brief. Subsequently having the agreement reviewed by the trial judge will confirm that there are no misunderstandings between the parties that could later derail the proceedings. Finally, documents contained in a Joint Trial Brief should be marked as lettered exhibits to ensure the entirety of the brief is preserved should an appeal be required. Documents contained in the brief should only be marked as numbered exhibits once they have been properly admitted by the court, so as to avoid any potential claims of prejudicial tactics.
While this concludes our three part series on this decision, the Court of Appeal also provides specific guidance to the personal injury bar regarding the admissibility and use of information about insurance during a trial.[8] Given the breadth and depth of the topics covered by this decision, it is undoubtedly something that all counsel, whether trial or appeal, should be familiar with as it will be relied on by the bench and bar going forward.
[1] Girao v Cunningham, 2020 ONCA 260 at para. 7 per Lauwers, Fairburn and Zarnett JJ.A
[2] Ibid at para. 33.
[3] Ibid at para. 34.
[4] Ibid at para. 23.
[5] Ibid at para. 24.
[6] Ibid at paras. 29-32.
[7] Ibid at paras. 29-30.
[8] Ibid at paras. 79-147.
