Trial Summary: Pelletier v. Ontario Provincial Police et al.
Plaintiff’s Counsel: Tim Boland & Darcy Romaine
Defence Counsel: Don Rogers Q.C. | Thomas MacMillan
This judge alone trial occurred over 22 days before Boswell J. It was as complex as can be. It involved issues of credibility, liability, competing medical diagnoses and prognoses, pre-accident and post-accident drug addiction, psychological issues, causation, future care costs, life expectancy, Catastrophic Impairment under the Statutory Accident Benefit Schedules and issues of set-off. Regarding damages, Justice Boswell stated the following in paragraph two: This is an action for damages. It’s complicated. Jerry’s background is a troubled one. His life, at least by conventional standards, wasn’t great before the accident. It was worse after. Unpacking the physical, emotional and psychological sequelae of the accident from Jerry’s pre-existing issues is not an easy task. But it is one faced by the Court in this instance. That said, it is not the Court’s only task. The question of liability, of fault for the collision, remains a live issue.
Mr. Pelletier was a 28 year-old fellow who on the evening of June 13, 2008, had been riding his bicycle on the wrong side of the road, without a light, without a helmet, with cocaine in his system, and who was crossing an intersection on a green light through a crosswalk without dismounting. He was struck in the intersection by an O.P.P. officer who had been heading towards Mr. Pelletier and made a right hand turn on a green light. The accident was witnessed by another O.P.P. officer who had been traveling directly behind the striking officer. An independent witness, who had been stopped at the lights, also observed the accident. The collision was investigated by a third attending officer as well as two level 4 Reconstructionists. The scene was also visited by the former Chief of Police of Rama. The O.P.P.’s counsel retained an engineer to reconstruct the accident. The defendants’ case was that the accident was 100% the fault of Mr. Pelletier.
Regarding damages, Mr. Pelletier was unemployed at the time of the accident. He had a history of drug addiction, and of lying to numerous doctors to obtain prescription medication. He had profound psychological issues from a tragic childhood, and had over-dosed / attempted suicide approximately 4 times before the accident. The Defense acknowledged that Mr. Pelletier had sustained a fractured foot and a disfigured nose in the accident, but denied that he suffered a mild traumatic brain injury, and argued that whatever psychological disturbance he has been essentially the same as prior to the accident, or at a minimum that his pre-accident troubles required the same care as his post-accident troubles and so no funding was due under the law.
At our request, Mr. Pelletier was assessed for competency and found to be incapable of making financial decisions. We took instruction from the Ontario Public Guardian and Trustee on Mr. Pelletier’s behalf.
On liability, we were able to demonstrate that the striking officer’s recollection of events was unreliable, that the observing officer’s recollection was unreliable, that the independent witnesses’ observations were unreliable, that the O.P.P. re-constructionists’ opinions about lighting were unreliable, that the O.P.P.’s engineer’s report was flawed and affirmed our version of events. The court found in Mr. Pelletier’s favour with liability split at 60% the striking officer’s fault, and 40% Mr. Pelletier’s fault.
On the issue of damages, we knew we had to present Mr. Pelletier’s injuries as going from gray to dark gray and crossing a terrible threshold, rather than arguing that he went from white to black. We also knew he was incapable of anchoring the narrative and withstanding cross-examination. To achieve both, we called a solid week of lay evidence, from people who knew Jerry before and after the accident. We established the profound change in him first with lay witnesses, then had Mr. Pelletier testify and then buttressed that testimony with medical evidence. The lay evidence undermined the defendants’ experts who posited that the accident had not changed Mr. Pelletier much.
On the issue of life expectancy, while we had to concede a 20 year diminution in his pre-accident life expectancy due to his history of drug abuse and suicide attempts, we were able to extract admissions that the accident too had reduced Mr. Pelletier’ life, and that high levels of care would presumably extend his life. Thus, we made the issue of future care a life or death proposition for the court.
In the end, Boswell J. awarded $5,218,950 in damages, reduced to $3,131,370 after liability, to which interest had to be added.
We had also handled Mr. Pelletier’s accident benefit claim, alone. In that case we filed for arbitration and on the eve, Zurich insurance conceded that Mr. Pelletier was catastrophically impaired and agreed that he qualified for the non-earner benefit, worth approximately $500,000 depending on his life expectancy.
Mr. Pelletier recovered more than $1M in advancing to trial than he would have had the recommendation been to accept the insurer’s offer to settle.
As an additional silver lining, Jerry had been cared for post-accident by Good Samaritan’s who took him into their home. They could not be Family Law Act claimants. There was no agreement of repayment. Nevertheless, we were able to successfully obtain compensation for them, under a constructive trust argument, the first, we believe, in Ontario.