Girao v. Cunningham, 2020 ONCA 260

The plaintiff sustained injuries in a motor vehicle accident and commenced an action for damages. At trial, the jury awarded $45,000 in general damages and $30,000 in loss of income. The trial judge found that the plaintiff did not meet the threshold and that the accident benefits paid out reduced the income loss award to $0. Costs of $311,845 were awarded to the defendant. The plaintiff appealed. She was self represented and used a Spanish interpreter at both the trial and the appeal. The Court of Appeal allowed the appeal and ordered a new trial on the basis that the interests of justice plainly required that to be done as the plaintiff showed that a substantial wrong or miscarriage of justice occurred. Specifically, the Court held that both the defence and the trial judge failed to treat the self-represented plaintiff fairly in: (1) preparation, content, delivery and use of a so-called joint trial brief; (2) the defence’s treatment of expert evidence; (3) the defence’s use of information about the plaintiff’s AB settlement; and (4) lack of fairness and assistance from the trial judge and counsel.