Transcrip of the tort trial(Edited edition)

asSUPERIOR COURT OF JUSTICE

 

ARIF SAHINBAY and DILEK SAHINBAY

 

Plaintiffs 

RICARDO DA SILVA AND ISILDA DA SILVA

 

Defendants 

* * * * * * * *

P R O C E E D I N G S A T   T R I A L

BEFORE THE HONOURABLE MR. JUSTICE T. LEDERER

AND A JURY on Monday, November 17, 2014, at TORONTO, Ontario

 

 

  • * * * * * * *
APPEARANCES:
A. Sahinbay        Self-Represented
A. Drimer Counsel for I. Da Silva
and R. Da Silva
  • * * * * * * *

 

MONDAY, NOVEMBER 17, 2014 

 

THE COURT:  Okay good morning everybody.

  1. DRIMER:  Good morning Your Honour. THE COURT:  Counsel sorry you are?

5

  1. DRIMER:  Alan Drimer for the Defendents. THE COURT:  Mr. Drimer who do you spell your name?
  2. DRIMER:  D-R-I-M-E-R. THE COURT:  D-R-I-M-E-R?

10

  1. DRIMER:  Yes.

THE COURT:  Okay, you are Mr. Sahinbay?

ARIF SAHINBAY:  Yes sir I’m representing myself. THE COURT:  Yup so Mr. Sahinbay come up to the lectern I want to talk to you for a few minutes.

15

ARIF SAHINBAY:  Okay.

THE COURT:  You have every right to come here and represent yourself so there’s no problem with that.  But if you come here to do this, then there is some responsibilities that come

20

with it.  You need to learn how this process works.  It can change the process for you, this is a courtroom and there is certain rules that govern what we do here.  So you need to do your best…

25

ARIF SAHINBAY:  Sure.

THE COURT:  …to understand what’s happening, to understand what the limitations of a courtroom are and to understand what’s necessary for you to prove your case.  Do you understand?

ARIF SAHINBAY:  Yes I do.

THE COURT:  All right that is particularly complicated where there’s a jury.  We want to make sure that the evidence that’s given to a jury is proper evidence.  We want to be sure

5

that they make their decision based on the evidence, not based upon how they feel about the people in the room.  Not based upon what people may say that’s not evidence.  So you need to be careful in what you say because if you say the

10

wrong thing, Mr. Drimer will be up and he’ll be asking me to do what’s called a mistrial and you can all go home and you’ll have to start all over again.  If in any sense the jury gets some impression that’s wrong or contrary to the law

15

it will just stop, do you understand?

ARIF SAHINBAY:  Sure I do.

THE COURT:  All right, okay first of all I just want to clarify one thing with both of you.  This has to be finished this week I’m going to

20

be out of the country next week.  So there really is no room to maneuver on this.  So I need every assurance I can get Mr. Drimer I’m going to have to look to you more for this than Mr. Sahinbay because you’ve got more experience

25

and understanding of what’s about to happen.  I need to know that this can get done in five days, understanding that it’s actually four and a half days I have a bunch of medical appointments.  It happens even judges have to go a doctor periodically, so I’m going to two of them on Thursday morning.  It’s just something of some long standing so I need to know that this can get done in four and a half days? MR. DRIMER:  Your Honour the defence is calling

5

three witnesses.  All three are scheduled for Tuesday and Wednesday.  So the defence hopes to be in a position to rest by Wednesday afternoon. THE COURT:  So you think that Mr. Sahinbay will be able to conclude his case today?

10

  1. DRIMER:  I understand that Mr. Sahinbay is not calling any witnesses.

THE COURT:  Well I’m going to get to that because I’ve heard that as well and I just want to work my way up to it and I don’t want to get

15

to it too quickly.  So that’s the theory that you’re operating on and why you’ve told me you think you can get your evidence in two days?

  1. DRIMER:  Yes. THE COURT:  All right the problem I’m having Mr.

20

Sahinbay is this.  Are you intending to call any witnesses?

ARIF SAHINBAY:  No.

THE COURT:  Are you intending to give evidence yourself?

25

ARIF SAHINBAY:  Yes.

THE COURT:  All right, so the only evidence that we’re going to have will be your evidence on your side of this case if I can put it that way?

ARIF SAHINBAY:  Sure I have a book, I already provided one copy so I would like to give you the same one.  So there is information about the case, insurance reports, M.R.I. reports… THE COURT:  So we have a book of documents? ARIF SAHINBAY:  Yes.

5

THE COURT:  That’s not unusual here and do you know what he’s talking about?

  1. DRIMER:  Yes Mr. Sahinbay has provided us with what he called an Exhibit book… THE COURT:  Right.

10

  1. DRIMER:  …and I advised him that we’re going to be objecting to the admission of that into evidence given that it contains medical reports and he’s not calling the authors of such reports.

15

THE COURT:  I was a little bit afraid that this is where we were going here.  You remember what I just said to you Mr. Sahinbay we have certain rules about how we do this?  So I want to make sure that you’re not trying to do something

20

that’s outside of these rules.  So you can come and give evidence as to what happened, about the facts.

ARIF SAHINBAY:  Okay.

THE COURT:  You can give evidence about the pain

25

that you suffered since, but you can’t give us the evidence of other people.  You can’t – just a minute – give us evidence of what other people saw and typically if you’re going to give us expert evidence and let’s just be careful about this Mr. Drimer, the rules do allow for a medical report to simply be filed and the witness not to be called.  You can call the witness yourself or cross-examine if you wish.  Mr. Sahinbay technically has a right to file a

5

report and not call the witness typically.  So what’s happening here?  If he’s got medical reports and he wants to file them or rely on them what’s wrong with that?

  1. DRIMER:  The issue is that the experts are

10

not going to be available as I understand it.

THE COURT:  Do you want to cross-examine them? MR. DRIMER:  Right he has – I would want to cross-examine them and he’s not put forward a notice of intention.  The documents that he’s

15

intending are on file with the Court have not been properly served nor has he given me any sort of indication that he intends to rely on them.

THE COURT:  Well just in order to not to waste a

20

whole time and I understand that Mr. Sahinbay is here on his own, is there some room to maneuver here?  I mean you’ll have to tell me what you’re instructed to do, not what your advice has been, but you’re going to do here.  So are you going

25

to insist on these rights – because we’re not going to be able to proceed, it’s pretty simply.  We’re not going to be able to go ahead here with some trial that Mr. Sahinbay is clearly unprepared for on some technical failure to understand the rules.

  1. DRIMER:  I, I…

THE COURT:  What’s going to happen I suspect is that I’m going to explain that you can’t what he wants to do, the next thing that’s going to

5

happen is he’s going to say I want to adjourn it and the thing that’s likely to happen after that (I’d say likely because I haven’t heard from you yet I don’t know how many times this has been up for trial or any of that history), but the next

10

thing I’m going to say is he gets a chance to – you know we don’t roll over people here, we give them a chance to make the rules work.  So if there’s something that can be done here to delay this for six months or whatever it takes, you

15

know we can go do it again.  So understanding that the parameters that I have a responsibility to try and get this done if we can do it without prejudicing your client.  I mean that’s sort of obvious.  Is there some way to make this work?

20

  1. DRIMER:  I appreciate it Your Honour.  With respect to the documents in the Exhibit Book and I’ve already advised Mr. Sahinbay of the x-rays, the C.T. scans, the M.R.I’s we’re not going to take issue with pursuant to the business records

25

exception in the Evidence Act. However any medical reports that he’s relying we’ve advised him and he’s also been advised at our pre-trial conference that that’s not going to be – that could be an issue and I let him know right then and there that we’re not going to be consenting to those being filed with the Court without having an opportunity to cross-examine on it. THE COURT:  If we could get the rules here? I just want to go too quickly here.  You’ve got a

5

problem Mr. Sahinbay and I gather from what Mr. Drimer’s been saying you’ve been told about this problem before, which makes me a whole lot less sympathetic to the problem, but you’re in danger right now of being in a situation where you

10

can’t prove your case according to our rules because you don’t have the right people here because you haven’t done the right things to properly prepare…

ARIF SAHINBAY:  May I say?

15

THE COURT:  Yeah, but I just in a minute okay… ARIF SAHINBAY:  Okay.

THE COURT:  …just give me a second?  Okay what do you want to say Mr. Sahinbay?

ARIF SAHINBAY:  Okay I wanted to say Mr. Drimer

20

has provided me with one of the trial – pretrial documents.

THE OCURT:  I beg your pardon?

ARIF SAHINBAY:  This is a pre-trial memorandum. That’s what he brought and he gave it to me.  So

25

in this pre-trial memorandum these doctors that who he’s going to call here as a witness… THE COURT:  That he’s going to call, not that you’re going to call?

ARIF SAHINBAY:  Right.

THE COURT:  Right.

ARIF SAHINBAY:  But the doctors reports I’ve already read all of them so they are mentioning about other doctors reports.  It’s like a – my the 2010 I saw one doctor…

5

THE COURT:  Just give me a second.  Sorry pardon me Mr. Sahinbay.

ARIF SAHINBAY:   Yes okay those specialists are talking about the doctor that I saw before from the insurance side again…

10

THE COURT:  Yes.

ARIF SAHINBAY:  …but not the insurance, the other insurance which is benefits side.  Information from a doctor – so they’re relying on their reports but unfortunately they didn’t

15

put their reports in this book, but I have the…

THE COURT:  But just – the point that Mr. Drimer’s making is first of all Mr. Drimer doesn’t have to call any evidence.  If you don’t prove your case he’s going to not call any

20

evidence.  He’s just going to say he didn’t prove his case that’s the end of it.   Right Mr.

Drimer?

  1. DRIMER:  Yes.

THE COURT:  All right, so you – the fact that

25

there are a bunch of reports around here isn’t the answer to the problem.  The answer to the problem is there’s certain rules before we allow expert evidence to come in.  Mr. Drimer’s completely within his rights to say I want cross-examine these people and before I crossexamine them they have to be here and before I do that I want to get the reports which they have prepared properly admitted into evidence.   You can’t put them into evidence just by saying

5

well I went to the doctor and here’s his report.  That’s not good enough, but I gather you been told that…

  1. DRIMER:  Yes.

THE COURT:  …before now?  So the problem now is

10

what are we going to do?  I want to get the rules I want to make absolutely sure so let’s just stop and I want to talk to you about something else.  And Mr. Drimer will correct me if I get this wrong because it’s a fairly

15

technical question.  It used to be and I’m thinking probably more than 30 years ago now, that you could come to court after being in a car accident and injured and sue for your general damages, your suffering and the Court

20

would listen and maybe you’d win and maybe you wouldn’t, but 30 years ago the law changed and for 30 approximately and for 30 years since people have been struggling with exactly how to do this because if you make it too easy for

25

people to sue for damages then insurance costs too much, there’s a whole sort of bigger problem.  So there are limits today on how we deal with pain and suffering.  So I’m going to give you exact words so just give me a second?

In order to get damages now you have to have sustained either a permanent serious disfigurement (with just looking at you isn’t a problem here) or permanent serious impairment of

5

an important physical, mental or psychological function.  It would almost be impossible to prove that in the absence of a doctor’s report or something saying something like that’s happened.  If you don’t have that, you’re going

10

to get nothing, that’s the way the law works for pain and suffering.  That’s the first thing, so if you got a problem with just looking at that.

Have you got a threshold issue here?

  1. DRIMER:  We do and we have motion materials

15

to prepare for the threshold…

THE COURT:  I beg your pardon?

  1. DRIMER: …we prepared threshold motion materials.

THE COURT:  So Mr. Drimer’s getting ready to say

20

that no matter what’s happened you shouldn’t get anything for your pain and suffering and I don’t know whether he’s right or he’s wrong till I hear the case.  I don’t know, but it’s a very common problem in the modern law.  Number two, I

25

assume you’ve already got some money from some insurance company over this?

ARIF SAHINBAY:  No.

THE COURT: Did you get – you haven’t gotten a

penny from anybody about anything?  Did he not have a status claim here?

  1. DRIMER:  He did have a status claim against Unica and I understand it went to arbitration very recently and there hasn’t been a determination yet.

5

THE COURT:  I see okay.  So whatever money you get from that arbitration you’ll have to deduct from what you get here that’s the first thing.  The second thing is do you have any invoices or bills that you paid that you’re claiming that

10

you want re-paid here?

ARIF SAHINBAY:  No I don’t have.

THE COURT:  Okay well then you’ve got no claim.  You may have a real problem with your pain and suffering.  If you don’t have any invoices

15

you’ve got no claim for the costs that you’ve spent because you don’t have any invoices to show me what you spent.  Secondly, in your statement of claim and I don’t know – I know that you had a lawyer when the claim was

20

produced – there’s a claim for loss of income.

Are you saying that you lost income here?

ARIF SAHINBAY:  For future yes.

THE COURT:  I beg your pardon? ARIF SAHINBAY:  For future yes.

25

THE COURT:  No, no I’m not talking about the future I’m talking about the future I’m talking about the past.  Have you lost income in the past since this accident occurred?

ARIF SAHINBAY:   No.

THE COURT:  All right well then you don’t have any claim for that.  You say you’ve got a claim for future loss of income?  It would be very, very unusual it’s not impossible I suppose, but it would be unusual for you to come here and

5

succeed on a claim for future loss of income when you haven’t had any past loss of income.  I don’t know how you’re going to do that and I certainly don’t know how you’re going to do it without some doctor explaining that you’re going

10

to be seriously impaired for some reason in the future in the way that you haven’t been so far.  This accident happened four years ago.  So your proposition is that I was injured in a way that

I’ve been able to work for four years, but

15

somehow I won’t be able to work in the future.  I think that’s – I’m going to stick my neck out here a little bit here and tell you I think that’s virtually impossible, but if you want to try you have your rights and I could be wrong.

20

The other thing you could theoretically be asking for and I think your claim does is for the cost of some future care – you’re going to have a problem in the future and you might need a nurse to help you, are you claiming for that?

25

ARIF SAHINBAY:  Ah on benefits side yes because health report has been filled up…

THE COURT:  I’m sorry and I apologize, one of the doctors I’m going to see shortly is for my hearing I’m getting old.

ARIF SAHINBAY:  Sorry cannot…

THE COURT:  …so you’re going to have to speak a little louder.

ARIF SAHINBAY:  Okay the impairment report that has been filled up, part one of my docket.

5

THE COURT:  Yeah.

ARIF SAHINBAY:  So this is a tech C.A.T. issue and so it’s permanent damage and it affects all my future…

THE COURT:  Well if you can’t get the medical –

10

is that one of the reports you’re objecting to Mr. Drimer?

  1. DRIMER:  I don’t know if he put the tech C.A.T. reports in as exhibits?

ARIF SAHINBAY:  Yes.

15

  1. DRIMER:  Yes he did then yes.

THE COURT:  All right well then that’s one of the reports we’re going to have a problem with because if you can’t get in – if Mr. Drimer’s correct, they’ll be no proof, be nothing.  Well

20

what I have done…

  1. DRIMER:  There might be a housekeeping as well?

THE COURT:  Housekeeping that’s what I’m forgetting.  You also claim in your Statement of

25

Claim for future housekeeping, people who are seriously injured can’t do the things they used to do maybe they can’t do the laundry anymore because their back hurts that kind of thing.

They’ll make a claim for future – you usually have an expert here to explain to us what that’s going to cost.  Are you asking for that too?

ARIF SAHINBAY:  Yes.

THE COURT:  All right well have you got an expert to explain to me what you used to do and

5

what you do in the future and why – again if you haven’t had these problems for the first four years, it’s exceedingly unlikely that you’ll be able to prove this for the future, but if you want to try you can try.

10

ARIF SAHINBAY:  Sure, there are five facts.

THE COURT:  Pardon me?

ARIF SAHINBAY:  There are five facts.

THE COURT:  Five facts?

ARIF SAHINBAY:  Five facts.

15

THE COURT:  Yeah which are?

ARIF SAHINBAY:  One of them is accident happened I’m not guilty – I wasn’t guilty.  Second, police report.  Third ambulance report.  Fourth emergency hospital report, so you’re not going

20

to accept all of them and then…

THE COURT:  Well I don’t know what I’m going to accept, it depends on the position of Mr.

Drimer…

ARIF SAHINBAY:  …and fifth is…

25

THE COURT:  One of the questions I want to make sure I ask Mr. Drimer and I’m going to after I finish this is why could liability could possibly be an issue it’s a rear-end collision but we’ll get to that.  Okay.

ARIF SAHINBAY:  Fifth one is three M.R.I.

reports.  One of them is my… THE COURT:  What kind?

ARIF SAHINBAY:  M.R.I… THE COURT:  M.R.I. reports yup okay.

5

ARIF SAHINBAY: …one of them for my brain it shows damages.  One of them for my left shoulder, one of them for my lower back and one x-ray shows an angle of my right foot there are some damages.  So I would like to provide this –

10

these are my proof…

THE COURT:  Well then we’re back to the medical report problem, so let’s – it seems to me that the following is the case.  You have every right to be here, but someday maybe today will be the

15

day we have to figure that out.  There’s going to be a trial about this I guess if you insist on it.  I’m going to tell you this, I think your chances of succeeding here at all are very small.  You don’t have what you need, certainly

20

not today to prove this case and I gather you’ve been told that, so I mean my inclination at the moment I want to talk some more to Mr. Drimer is that this should just be adjourned but he may say to me I don’t want to do that I want a

25

trial.  My client has a right too he’s going to say.  So I’m not really sure what we’re going to do or how we’re going to deal with this.

I want to talk to Mr. Drimer for a moment so you – so is there anything else you want to say to me about all of this?

ARIF SAHINBAY:  Will you accept my M.R.I. reports?

THE OCURT:  I don’t think so, not without a

5

doctor to explain what they are.  They don’t mean anything to me.  I’m not a doctor.  I can’t read them.  You need a doctor to read them that’s the problem.

ARIF SAHINBAY:  I will make – I will let the

10

doctor who read his – he’s going to call the  doctor so I give them to him and he will explain.

THE COURT:  Well no, no. It doesn’t quite work that way.  Have your doctors looked at the

15

M.R.I.?

  1. DRIMER:  Um…

ARIF SAHINBAY:  Yes.

THE COURT:  Not you, just one thing sorry Mr. Drimer.  One thing I want to say to you Mr.

20

Sahinbay, you know it’s my job as best as I can to see that the rules are followed number one as I’ve already told you.  It’s also my job to see that you get a fair hearing.  In order for that to work, you need to recognize the process and

25

there are a couple of things about the process.  One of them is me and not me as a person, but because of the fact that I’m the Judge that it’s the position that I hold.

When I talk you’re going to have to not talk because I’m not going to argue with you and I’m not going to talk over you and I’m not going to argue with you.  Your job is to listen to me and to pay attention to what I say.  The second

5

thing is that I owe Mr. Drimer exactly the same courtesy as he does to me.  So when Mr. Drimer’s talking and when I’m talking to him it’s not for you to interrupt, you’ll get your chance do you understand?

10

ARIF SAHINBAY:  I do.

THE COURT:  All right, okay Mr. Drimer sorry what were you going to say?

  1. DRIMER:  Thank you any of the standard reports that would have pre-dated the date that

15

Mr. Sahinbay was examined by my experts, they would’ve had in their possession to review. THE COURT:  Are there more recent ones than that?

  1. DRIMER:  There would’ve been later in 2013

20

and earlier in 2014 that they have not been provided with any new medical information to review.

THE COURT:  All right Mr. Sahinbay just sit down for a second okay?

25

  1. SAHINBAY:  Sure.

THE COURT:  First of all, why is the liability an issue here?

  1. DRIMER:  Liability is an issue because of

the evidence that my client gave at his Examination for Discovery to the effect that there was an issue with Mr. Sahinbay applying his brake when the traffic light had not yet turned to amber from green and it created an emergency situation for him to have to respond

5

  1. I, I…

THE COURT:  That’s pretty weak?

  1. DRIMER:  …I, I appreciate that, there’s another factor as well and that is my clients took a photograph of the rear of Mr. Sahinbay’s

10

vehicle immediately after the impact at the scene and I need to call him to be able to get that photograph into evidence with respect to its…

THE COURT:  Showing what, very little damage?

15

  1. DRIMER:  Very little damage yes.

THE COURT:  Well that’s actually not a liability issue, in so much as it reflects on could he be injured the way he says he’s going to tell me given the minor nature of the collision is that

20

what we’re talking about? MR. DRIMER:  Fair enough.

THE COURT:  Well can we – all right well I mean you have a bunch of things you can do here.  Let me make a point before you respond okay.  There

25

are a bunch of things you can do here.  At some level it depends on what you do, what you’re instructed to do and what you may be obliged to because of what your client says, I understand all that, but it’s going to demonstrate whether we can get anything done.    If you’re going to insist on your rights over the doctors, I’m reticent to go ahead with the trial because going ahead with the trial I know is going to end up nowhere.  Mr. Sahinbay can’t prove his

5

case just by his own evidence.  So the first thing is there has to be some leeway here to allow this to proceed I think.  Now leeway’s around the medical reports and whether you’re going to let them in and how we’re going to deal

10

with them with a jury who can’t understand them unless there’s somebody here to explain them.  Now maybe that your doctors can help us with that, he seems to think that they can.

15

I’m not asking you to answer right now, I’m just – that seems to me is the first issue.  How I guess it’s sort of the primary issue without some give here I’m not quite sure what to do in terms of proceeding, I mean what’s the point of

20

it?  I guess the second thing I should say to you is you’ll have to evaluate what I’ve said for yourself, I could be completely wrong what do I know you know I read the trial brief and you get to talk to Mr. Sahinbay and you get some

25

understanding based on experience about what’s likely to happen here.  So there’s a judgment call for you to make about you know the risks of going with the kind of leeway that I’m talking about against holding this up and having a full trial and where’s the cost benefit analysis for one of a better terminology and it’s only a loose terminology get you to in this matter because I’m not sure what the point would be of putting it off?  I mean there is two things on

5

here in a sense – there’s two contentions.

One is he’s got some rights about trying to prove his case.  There is the likelihood or not likelihood of his ability to do it anyway which

10

is a judgment you need to make before we go very much further with this.  You understand – well I know you understand what I’m saying.  So I want to look at this rule and I want you to think for five minutes about what to do.  I don’t know if

15

there’s anybody here you need to talk to?

There’s a guy in a suit back there just behind – I guess he’s probably with your office, but anyway.

  1. DRIMER:  I’ve had discussions with my client

20

at length about this issue… THE COURT:  Okay.

  1. DRIMER: …in preparation for today, so I do – I am operating under instructions today with respect to.

25

THE COURT:  Well tell me where you’re at?

  1. DRIMER: The instructions are not to consent to the admission of the Exhibit Book in its entirety.  There are – there might be some leeway with respect to the C.T. scan, M.R.I. scan, x-ray reports…

THE COURT:  When you say “not in its entirety”, what specifically are we taking out?  I haven’t seen it I’m not sure whether I should.  Is there any objection to my seeing this book?

5

  1. DRIMER:  I don’t have an issue with you seeing it.

THE COURT:  Okay, so I can I have a look at it?  Is there a way in which I can – I mean I don’t want to be unfair to Mr. Sahinbay here, is there

10

a way in which I can adjourn this, but not have it come on again until it’s ready or alternatively just – I mean I guess Mr. Sahinbay the issue is this.  I’ll just put this – Mr.

Sahinbay?

15

  1. SAHINBAY:  Yes sorry?

THE COURT:  Thanks, if you don’t want to make any changes, if you’re not prepared to call doctors.  If you’re not prepared to do anything more, than I should have the trial and what

20

happens, happens.  But you’ve got a big problem.  I don’t honestly don’t think you can succeed this way.  Not because you don’t have a case, but because you haven’t complied with the formalities of doing it.  Let me just – I want

25

to make sure I get this right with respect to – have you got the rules here?

  1. DRIMER:  No I don’t have a copy…

THE COURT:  Just give me a second here,

everybody just sit down for a minute okay?  Mr. Drimer I’m forgetting the rule.  Where is the rule that talks about the proposition that it’s the report or the witness, but not both?

  1. DRIMER:  I believe it’s in the Evidence Act. THE COURT:  I think you’re right.  Okay you know

5

what I’m going to adjourn for ten minutes.  I’m going to go upstairs and make sure I get this right and then I’m going to come back and talk about it again and I’m going to take this with me if that’s okay with you?

10

  1. DRIMER:  Yes I’ve actually if assists Your Honour, I flagged the scan reports that I would certainly be prepared to…

THE COURT:  Are these the ones you’re going to object to?

15

  1. DRIMER:  No this is what I would be prepared to consider allowing into evidence.  These are just x-ray, M.R.I. and C.T….

THE COURT:  Did you mark that copy?

  1. DRIMER:  No all I did was put flags on the

20

pages of the lab reports.

THE COURT:  I’m going to trade you okay.  These are the ones that are before your doctor saw him? MR. DRIMER:  That’s correct.

25

THE COURT:  All right I apologize I meant to look this up before I came down because I thought it might be a problem and I just ran out of time.  So just give me ten minutes.  Mr.

Sahinbay I want to make sure we treat you properly.  Okay so I’ll be back in a moment.

R E C E S S

5

…U P O N   R E S U M I N G

THE COURT:  Okay I believe that somebody will have to stand up when I’m talking maybe Mr. Drimer you can do it ‘cause you’re the lawyer.

10

I believe that what we’re looking for here is Section 52 of the Evidence Act.  It talks really about the doctors for the sake of this or people in the health professions.  The report obtained by or prepared by for a party to an action and

15

signed by a practitioner and any other report of the practitioner that relates to the action are with leave of the Court and after at least ten days’ notice has been given to all other parties, admissible in evidence in the action.

20

So you’ve had ten days notice haven’t you?

  1. DRIMER:  Yes we haven’t been served with a Section 52 Notice of Intention, but we did receive a copy of Mr. Sahinbay’s exhibit… THE COURT:  Are you going to object to the ten

25

day notice are you?

  1. DRIMER:  No.

THE COURT:  All right, unless otherwise ordered by the Court a party to an action is entitled at the time that notice is given under sub-section (2) to a copy of the report together with any other report of the practitioner that relates to the action.  You’ve got copies? MR. DRIMER:  I do.

THE COURT:  You’re not going to object on that

5

basis?

  1. DRIMER:  No.

THE COURT:  All right, except by leave of the Court presiding at the trial a practitioner who signs report with respect to a party shall not

10

give evidence at the trial unless the report is given to all other parties in accordance with sub-section (2).  You’re not going to object to that?

  1. DRIMER:  No.

15

THE COURT:  All right, sub-section 5, if a practitioner is required to give evidence in person in action and the Court is of the opinion the evidence would’ve been produced as effectively by way of a report, the Court may

20

order the party that required the attendance of the practitioner to pay as cost therefore such sum as the Court considers appropriate.  Your problem is you want to cross-examine the guy? MR. DRIMER:  That’s right.

25

THE COURT:  Or an assortment of them whoever they are?  So you’re not prepared – you’re happy to have him file the report.  The problem is you then want to cross-examine?

  1. DRIMER:  Correct Your Honour.

THE COURT:  All right and you can’t do that

‘cause he hasn’t arranged for them to be here.  I guess the question is could you have arranged for them to be – or let me put this to you differently Mr. Drimer.  I’m not suggesting you

5

should’ve done this for today, but if this were to be adjourned I’m going to talk about what we can do in a minute.  It would be theoretically within your hands, given that he’s selfrepresented to supeona these people wouldn’t it?

10

  1. DRIMER:  I would think that it would have to deliver summons to these experts… THE COURT:  Right.
  2. DRIMER:  …Your Honour…

THE COURT:  I could force this – I mean bluntly

15

I could force the issue by just adjourning it and saying somebody will have to get this ready.  I could throw it into a scheduling in court and say one of two things is to happen.  Either Mr. – you have to be put in a position to be able

20

defend the case.  Mr. Sahinbay has to have the position where it can be proven.  Somebody’s going to have to arrange for these people to be here.  Until somebody arranges for it, you can go – I’ll send it to scheduling court, but I

25

would say no one’s going to get a trial date for this until someone says the people will be there.  I don’t care who.  So he never gets his trial unless he does it, but you never get rid of the file unless you do it.  I mean it seems to me that is probably what I should be doing here because otherwise I’m wasting a jury’s time knowing this case can’t be proven and I’m frankly to my way of thinking I’m embarrassing the process.

5

  1. DRIMER:  I can’t disagree with you Your Honour I would have to seek instructions from my client…

THE COURT:  Well I will give you the chance to seek instructions, but you have to understand

10

you’re instructions and what I do aren’t the same thing I mean.

  1. DRIMER:  Of course, the only issue that perhaps I could seek the Court’s guidance is with respect to the costs of those experts

15

attendance at some point down the road.  Would that be born by the Defence who is my understanding…

THE COURT:  I guess I would be saying that you would have to deal with that at the end of the

20

trial if ultimately he doesn’t succeed, then presumably you’ll get the cost.  I mean this thing says – let me just read it.  What this clause 52.5 really says if you bring somebody to court that didn’t need to be here you pay.  So

25

you’re going to bring him to court, but presumably he will need to – I mean you’re not going to do this foolishly I assume?

  1. DRIMER:  Right.

THE COURT:  Therefore that’s not going to be your problem.  I suspect you’ve got a different kind of problem which is, are you ever going to collect?  Other than, my only other option is to force this on in circumstances that just doesn’t seem to me – and I could give you another trial

5

date, they’re next April, May, June.  I don’t know what good that’s going to do because frankly I don’t think Mr. Sahinbay is going to appreciate fully what’s involved here I’m going to go over it with him, but there’s a doubt –

10

there’s concern in my mind that somebody who’s not trained as a lawyer this is all fairly technical isn’t really going to get it and we’re just going to be – I’m concerned that we’re just going to be back here doing this again sometime

15

next year which is why I kind of like the trial scheduling court idea which is until you’re ready it just doesn’t come.  And your option – I mean I’m trying to figure out whether at some point you have an option to bring a motion for

20

delay or some other thing?  I suppose the question’s going to be you know what is your responsibility in these circumstances?  Presumably you don’t really have a responsibility to summons these people, that’s

25

just your way of getting this dealt with or at least that’s the position I would be putting you in.

  1. DRIMER:  Right, no I share your concerns

Your Honour.  I fear that if the evidence or the Exhibit Book is not put into evidence then it might amount to a trial by ambush, but conversely if it is put into evidence, then we don’t have the right to cross-examine during this week, than we’re in a similar situation.

5

THE COURT:  Now I mean you would have to as I said to you earlier putting it as crassly as I can, there’s a judgment you can make which is you can run the risk of just doing this.  Actually I would say I would have a concern at

10

that point what position am I putting the jury in?  How are they supposed to understand this, unless your doctors are going to say something?

Okay, all right I think I’ve got it.

15

Mr. Sahinbay, you’re going to have to stand up now.  You cannot simply file a doctor’s report and then turn to a jury and say you see the doctor said I was seriously injured.  They’re two problems with it.  First of all, juries

20

aren’t doctors.  They can’t understand and won’t understand we can’t be confident that they’ll understand the severity of an injury without a doctor explaining it to them, that’s why we want doctors to come and give their expert opinions.

25

The second problem is Mr. Drimer’s clients have rights.  Their right is okay you can file the report, but they have a right to question the report.  They can’t question the report if they don’t have the person who wrote it here to defend it.  He’s not here and I’m told you were told about this and the need for this at the pre-trial.  So part of me is actually quite upset with you because this is a waste of time.

5

The problem you have is you can’t just to go through some of these things and Mr. Drimer you’ll correct me if I’m misinterpreting what you’re telling me?  At tab four you have a psychological assessment prepared by something

10

called General Health Diagnostics written by a psychologist, two of them actually, Owen Gittens (ph) and Steve Webney (ph).  They would typically I suppose I don’t know them, they would be recognized as experts here (assuming

15

the rules have been followed) give their expert opinion or just file their report.  I think they do come under 52 and then Mr. Drimer would say okay now I want to cross-examine them.  There’s no one here to cross-examine?  So can’t put that

20

And then if we go to document five (a) you’ve got a letter from Dr. Growl (ph) in which he basically says I’m not sure what to do with this

25

man he needs a psychiatrist to look at him.  I’m not sure what this is, but I’m fairly sure without the doctor being here we can’t have him what did you mean, what did you see, questions from him, so we can’t have that in.

If we go to five 5(b) there’s another letter from Dr. Growl (ph) it’s the same problem.  If we go to number six there’s a very lengthy rural psychological assessment.  This one done by

5

another doctor of psychology, Mr. or Ms. I’m not sure which, Steiner (ph), Dr. Steiner – same problem for Mr. Drimer.  Number seven this you could probably get and I think it’s a medical health record, a business record in affect from

10

the hospital, but Mr. Drimer might want to bring somebody here.  I’m not sure if you would actually with respect to this?  I don’t know what’s your position on that one – do you know

Mr. Drimer off hand?

15

  1. DRIMER:  With respect to hospital records, we’re taking the position that if there’s an opinion, if there’s conclusions that are reached by the doctor…

THE COURT:  I don’t know if there are opinions

20

in this?  Let’s go to tab – same tab seven 7B.  If you go to tab eight, there’s an occupational therapy service.  This is a very lengthy report, it’s over a 100 pages.  It refers to other people like Dr. Growl (ph) in it and other

25

evidence from other people which maybe questioned, I mean certainly there’s going want to be some cross-examination where all that comes from if not an objection if its hearsay.

You’re going to have a problem with that.

The same thing with the letter to – are these hospital records to Ms. Secoloff (ph) at tab nine?

  1. DRIMER:  No it’s an expert at Sunnybrook –

5

it’s an expert at Sunnybrook.

THE COURT:  Looks like a report to me?

  1. DRIMER:  Yes.

THE COURT: So anyway if you go to tab 10 the last thing here is something that was done by

10

the insurance company.  This is the status claim I think isn’t it?

  1. DRIMER:  Yes.

THE COURT:  So there isn’t really anything here.

There’s almost nothing in this book that you can

15

get admitted into evidence without somebody here to respond to it and you don’t have anybody here with respect to any of this stuff do you? ARIF SAHINBAY:  I don’t have, but their doctors are enough for me to…

20

THE COURT:  Yeah but no their doctors are not enough.  Mr. Drimer has a right to cross-examine the people who wrote the reports.  He can have his doctors come and say I read them and we think it’s silly, but he doesn’t have to do

25

that.  What he can do and what I gather he’s asking to do – do you want to rely on your doctors have they read all these reports?

  1. DRIMER:  They have.

THE COURT:  Have you got a psychologist?

  1. DRIMER:  I have a psychiatrist and I’ve got a physiatrist.  The only exception is they haven’t read the last tab, which is the catastrophic impairment reports.

THE COURT:  Well could we do this –

5

understanding the problem we’re in, could we do this trial on the basis of – you’d have to have

– there could be no non-suit for this to work.  He’d file the reports.  There’s nothing stopping your doctors from criticizing them.  We’re going

10

to need someone to explain what’s going on.  He’d have the reports he could talk about them.  You’d have the evidence of people here I think we can all guess at what’s likely to happen.  We might be wrong and we can proceed and I mean you

15

can and I don’t think it’s very fair you have Mr. Sahinbay, but if he’s insisting I don’t know if he is yet perceive to make that determination but you’d have to as I said to you earlier, there’s some stuff you would have to give up

20

here, are you prepared to do that?

  1. DRIMER:  The only concern and it’s a grave concern that I have is that there’s certain portions of the report including the history taking session that I would need to cross-

25

examine the experts who authored the report on and my own experts could not properly gauge the history that was given by Mr. Sahinbay when he met with those doctors for the first time.

THE COURT:  Okay well I think this is what’s going to happen here.  I think you should go and get instructions so you can make some submission to me because I don’t think it’s fair otherwise.  Mr. Sahinbay this is what I’m proposing and I’m going to give you some time to think about what

5

you want to do about this okay.

We have a process of scheduling trials you go to a judge and the judge schedules the trial, schedules the trial when it’s ready and not

10

before.  What’s going to happen I think or what I think should happen or could happen is I’m going to adjourn this to the trial scheduling court I’ll pick a day.  Actually you know what, maybe I won’t pick a day, maybe I’ll just

15

adjourn it to the trial scheduling court to be brought on by either party when they are ready for trial.  By ready for trial I mean by when they have made the arrangements for the people necessary to attend to be cross-examined on

20

these reports to attend.  If you never do it, you’ll never ask the trial scheduling court.  If you do do it, I will write this up in such a way that the trial scheduling court will ask the questions, are these people available?  If

25

they’re not, I expect they’ll just adjourn it again.  Are you with me, do you understand Mr. Sahinbay?

ARIF SAHINBAY:  I do understand, but I would

like to say something about it?

THE COURT:  Well just a second I’m going to give you a chance to do that in a minute, I’m going to give you a chance to say something about it.

So do you understand Mr. Drimer? MR. DRIMER:  Yes I do.

5

THE COURT:  All right, so Mr. Drimer wants to speak to his client.  We have to be ought of here by noon, one way or the other.  Either just by putting it over to the afternoon ‘cause somebody has to come in and select a jury and

10

they’re waiting for this to get resolved.  So how long is it going to take you?  Can you get a hold of somebody like now?

  1. DRIMER:  Oh yes.

THE COURT:  All right.  Mr Sahinbay what is it

15

that you want to say?

ARIF SAHINBAY:  I would like to say well um Mr. Drimer is accepting some of the documents which is are the M.R.I reports like three of them and one x-ray report, so these are enough for me,

20

rest garbage no problem. His doctors are enough for me because I have right to cross, crossexamine examine…

THE COURT:  Yes you do.

ARIF SAHINBAY:  …those doctors so this is simple

25

and easy.  I would like to proceed this trial and finish it sir.  So I’m okay I agree with Mr. Drimer we can only accept – we can only get the M.R.I. reports.  So these are enough for me.

  1. DRIMER:  Okay if that’s the case Your Honour, then we’re content to proceed as well.

THE COURT:  Okay certainly I’m prepared to proceed on that basis.  I feel some obligation Mr. Drimer to say a couple of things to Mr. Sahinbay about this okay.  I want to be

5

absolutely clear about what’s happening here.

…unrelated matter spoken to

THE COURT:  I think what we’re going to do is

10

adjourn until 2:15, we’ll select a jury at 2:15, but I want to talk to Mr. Sahinbay.  I have some things that I want to go through.  The reason I want to select the jury now is ‘cause we haven’t really gone through the things that are of

15

concern to me and I want to make sure we’ve organized this properly.  So what I’m going to do is I think adjourn it to 2:15, we’re going to talk a little more, they’ll select a jury and we’ll get started today.

20

  1. DRIMER:  Fine Your Honour.  There’s one other preliminary issue with respect to a statement of Agreed Facts… THE COURT:  Right.
  2. DRIMER:  …that I’ve prepared based on a

25

request to admit and a response to request to admit.

THE COURT:  Yes.

  1. DRIMER:  And I wanted to get some thoughts

perhaps from Mr. Sahinbay as to whether he’d be prepared to introduce that to assist the Court?

THE COURT:  Have you talked to him?

  1. DRIMER: I have not, but I have received…

THE COURT:  Well talk to him between now and 2:15.  I mean we’ve got a difficulty here which

5

is you can’t and I can’t push Mr. Sahinbay beyond what’s reasonable, we have to have some consideration for the position we’re in here.

  1. DRIMER:  Yes.

THE COURT: …for himself that he’s in but

10

nonetheless.  Maybe what we’ll do is come back at two o’clock.  I expect the courtroom will be free then.

…talking about jury selection that is coming in that is

15

unrelated to this matter

THE COURT:  Everybody okay with two o’clock?

  1. DRIMER:  Yes.

THE COURT:  Okay so I don’t want to rush this I

20

think – I think I’m going to say this to you Mr. Sahinbay I want you to think about this over lunch.  Okay we’re going to come back at two o’clock there’s another – we use this courtroom almost exclusively to select juries.  So every

25

jury that gets selected is here and then we go to another courtroom to actually do the trial.  So there’s somebody waiting to select a jury for a five week trial.  We’ve taken much longer with this than we should have because of the peculiar circumstance we’re in.  So I’m going to adjourn now to let that jury get selected.  We’re going to come back at two o’clock, here at two o’clock.  We’re going to adjourn until two o’clock, we’re going to come back I want to talk

5

to you some more, some other questions and than if we’re going to proceed this way we’ll select a jury and we’ll start the trial over in the other building probably we’ll start the trial by 3:15 something like that, 3:15, 3:30.  I suspect

10

we’ll finish Mr. Sahinbay today nonetheless just as you said or close to it and we’ll proceed with your evidence tomorrow and then we’ll see where we go.

15

Now the one thing that you might do Mr. Drimer and one of the other things we’ll talk about is questions for the jury.  There’s a concept that Mr. Sahinbay won’t be familiar with and I think it would be a useful thing for you to – I think

20

probably the best thing for you to do quite frankly is prepare the questions you think are going to be suitable, give them to him.  Explain to him what they are and give them to me and we’ll talk about them at some point over the

25

course of the next day or so.

  1. DRIMER:  I’ve actually prepared a draft already, but I haven’t shared with Mr. Sahinbay.

THE COURT:  Well you should at least give him

the opportunity…

  1. DRIMER:  Sure.

THE COURT:  …of understanding what we’re talking about and how this works.  Mr. Sahinbay this isn’t like on television where the jury says guilty or not guilty.  This isn’t a criminal

5

trial.  We look at the individual case decide what the questions are that arise from that actual case and then we create some questions that the jury is supposed to answer.  So in this case it’s probably going to be something like

10

was any part of this accident the fault of the guy behind – your fault and that may be because of this issue about – well I think you should think about liability and just where we’re going with that issue and then there will be some

15

questions about your injuries that will tell us where this is going to go and we’ll go from there.  Do you understand Mr… ARIF SAHINBAY:  Yes I do.

THE COURT:  All right.  The other thing I want

20

to say to you is this.  You can make the choice you’ve made, we’re happy to proceed with the trial.  I think we can do it on that basis.  I do feel obliged to say to you that the decisions you’ve made are decisions that will make it much

25

more difficult for you to prove your case.

I think you’ve got a difficult case anyway at the moment, but that’s maybe because I haven’t been able to read these reports I just don’t know.  Of course it’s a problem sometimes when people move ahead too quickly or without the advice of a lawyer or without thinking it through completely because they run risks they shouldn’t run.  I don’t know if that’s what

5

you’re doing?  But I do feel obliged to you to say to you that if you proceed in this way without calling these doctors and making them available to Mr. Drimer to cross-examine and therefore not allowing their evidence to be

10

admitted, you’re making it much harder for you to prove your case and I want you to think about that.  I don’t want you to answer the question now, when we come back I’m going to ask you given what I’ve said, given the difficulties

15

that we’ve talked about this morning with respect to all of your evidence. With respect to the doctors, with respect to income loss, with respect to everything else that – income loss, housekeeping…

20

  1. DRIMER:  Future care costs.

THE COURT:  …future care costs, all of which you’re going to have difficulty with because you haven’t missed any work.  I mean that’s the hard fact here.  If you still want to proceed on the

25

basis that we’ve talked about, then we’ll proceed.  But you have to understand that you are taking a risk, it will be harder for you to prove your case.  Do you understand?

ARIF SAHINBAY:  Yes I do.

THE COURT:  All right, Mr. Drimer I’m going to put you in the position of just saying I’m obliged to say those things.  I’m going to hope that you don’t object to them if you do there’s not much I can do about it now.

5

  1. DRIMER:  I don’t object Your Honour. THE COURT:  Okay, so I’ll see you both at two o’clock.

R E C E S S

10

…U P O N   R E S U M I N G

THE COURT:  Okay just give me one second here.

15

So Mr. Sahinbay have you thought about this anymore?

ARIF SAHINBAY:  Yes.

THE COURT:  You just want to proceed? ARIF SAHINBAY:  Yes please.

20

THE COURT:  Without any of those reports?

ARIF SAHINBAY:  Without any of those reports.

THE COURT:  You understand it will make your case much more difficult to prove, it’s already a difficult case?

25

ARIF SAHINBAY:  It’s not in my opinion, it’s not, it’s a very simple case.

THE COURT:  Well okay Mr. Sahinbay I’m just going to say one more time ‘cause you’re not trained a lawyer.  I spent quite a few years as a lawyer so I’m just going to say again.  It’s just going to make this a much more difficult case in my view, but if you want to proceed, then I assume Mr. Drimer will be prepared to proceed at this point in this way?

5

  1. DRIMER:  Yes, that’s right.

THE COURT:  All right, so you want to proceed?

ARIF SAHINBAY:  Yes I do.

THE COURT:  All right okay, so there are a few more things I want to talk about and then we’re

10

going to select a jury and then we’re going across the street to start the trial.  Okay Mr. Drimer just remind me again am I mispronouncing your name yet?

  1. DRIMER:  It’s Drimer.

15

THE COURT:  What?

  1. DRIMER:  Drimer.

THE COURT:  I’m sorry Mr. Drimer I apologize.

  1. DRIMER:  Thank you. THE COURT:  Is liability a issue here?

20

  1. DRIMER:  It’s not.  It’s not it’s more so the photograph of the damage that’s our intention for bringing our insured in.

THE COURT:  Okay. MR. DRIMER:  Yes.

25

THE COURT:  Do you understand what just happened Mr. Sahinbay?

ARIF SAHINBAY:  Yes I do.

THE COURT:  Well I’m going to explain it to you

just in case you don’t okay.  In any trial like this one, particularly those that result from a car accident, there are usually two questions.  The first question, whose fault was the accident, because people only pay damages if they are at fault.  So if in this case you were

5

at fault, then you wouldn’t be able to get any damages no matter how seriously injured you were in the course of this trial.  There’s another way you might get some, but you’ve already had an arbitration as I understand with respect to

10

that.

In this case, what Mr. Drimer has just said is they’re not contesting the fact that this accident is the fault of the other guy.  They’re

15

not contesting it because we generally speaking recognize that if there’s a rear-end collision, if you get hit from behind, it’s got to be the fault of the person in the back because they’re the only ones who can see what’s happening.  So

20

we don’t need to worry about that anymore.  All we need to worry about now is were there any injuries that you can prove to the jury as a result of this accident?  Now I do want to warn you about one thing that is still an issue with

25

respect to the accident.  One of the things that Mr. Drimer’s going to say I think is this wasn’t a very serious accident and the result of that means he’s going to say (maybe he’s right maybe he’s wrong I don’t know) that whatever injuries occurred can’t have been that serious. Other than that, it’s really just going to be about the injuries…

  1. DRIMER: Correct. THE COURT:  …right?  Do you understand?

5

ARIF SAHINBAY:  Yes I do.

THE COURT:  All right.  Now you’ve also made a claim on behalf of your wife under the Family Law Act, do you know anything about that? ARIF SAHINBAY:  One of the lawyer prepared that

10

statement of claim and… THE COURT:  Yes.

ARIF SAHINBAY:  …I don’t know exactly what it is?

THE COURT:  Well are you still intending to seek

15

those damages?  What happens there and Mr. Drimer will correct me if I’m wrong or he believes me to be wrong so I don’t misstate it for you.  But some years ago (this wasn’t always the case) it was recognized that if somebody is

20

injured other people may also suffer and they may suffer the loss of friendship.  They may lose the loss of comfort.  They may have to give up their job or make less money at work or become pre-occupied with looking after the

25

injured party.  So there is some assessment made with respect to that under something called the Family Law Act, which is why your wife is sued here.  So we have to have some information from your wife I think or somebody about what’s happened to her in respect to all of this or you don’t have a claim, it won’t be proven.  So if your wife’s not here it’s going to be difficult for you to make that claim.  And do you want to pursue that claim or not?

5

ARIF SAHINBAY:  Yes I do.

THE COURT:  Is your wife going to come?

ARIF SAHINBAY:  Well I can make her come sure… THE COURT:  Well it’s not a question can you make her come.

10

ARIF SAHINBAY:  …as a witness yes.

THE COURT:  Well we might not get to your case today then Mr. Drimer I think that’s what that means, but we will – I think Mr. Drimer we’re going to have to have the wife here with the

15

Family Law Act claim that I can see?

  1. DRIMER:  I tend to agree Your Honour.

THE COURT:  Well so you think about whether you want your wife to come and give evidence as part of that claim?

20

ARIF SAHINBAY:  Sure.

THE COURT:  All right, okay, all right. So I’m going to give you something now – we’re going to select a jury next, we’re going to do that now.  Well I just want to go through this with you one

25

more time.  If you want to prove general damages (that is pain and suffering) you can come and tell us the pain you’ve suffered, but typically you need doctors to help you with that, you’ve made the decision you’ve made.  But you’re going to have some difficult with it.  You’ve also sued typically you would for special damages.  You don’t have any invoices or something to demonstrate what money you’ve paid out for these.  Special damages are where you’ve

5

actually paid somebody as a result of the injuries that you’ve suffered.  If you don’t have an invoice or some proof of paying it, you won’t be able to get such damages do you understand?

10

ARIF SAHINBAY:  Yes I do.

THE COURT:  Do you have invoices of any kind?

ARIF SAHINBAY:  No I don’t.

THE COURT:  All right, loss of income typically people bring their tax returns or what they were

15

paid explaining what they’ve earned in the future, what they haven’t earned as a result.  I understand from you you haven’t lost any income as a result of these injuries so far you may in the future you say?

20

ARIF SAHINBAY:  Well on this was an accident I could have stopped working.

THE COURT:  Well you’re unemployed right now right? ARIF SAHINBAY:  Yes I am.

25

THE COURT:  Were you employed at the time of the accident?

ARIF SAHINBAY:  No I wasn’t.

THE COURT:  When were you last employed?

ARIF SAHINBAY:  Two thousand seven.

THE COURT:  So you hadn’t worked for three years at the time of the accident?

ARIF SAHINBAY:  Yes I had.

THE COURT:  Why did you not work for those three years?

5

ARIF SAHINBAY:  Because of major depression disorder.

THE COURT:  Major what?

ARIF SAHINBAY:  Major depression.

THE COURT:  Depression so you had some

10

psychiatric issues?

ARIF SAHINBAY:  I was working, but the depression hit so I decided to stop working and get the proper treatment ah…

THE COURT:  Well you’re going to have some

15

difficulty with all that again if you don’t have a psychiatrist give some evidence which you’re not going to have I gather.  Do you understand?

ARIF SAHINBAY:  Yes I do understand sir. THE COURT:  You still want to proceed?

20

ARIF SAHINBAY:  Sure I do.

THE COURT:  Okay, okay, all right well that’s income loss.  Housekeeping you’re going to have to talk about – prove whether or not you’re unable to do the chores that you used to do that

25

sort of thing around the house.  Have I covered everything?

  1. DRIMER:  And future care costs?

THE COURT:  Well right and then the allegation

that you suggest that at some time in the future you’re going to need care and you’re going to have to pay for that?

ARIF SAHINBAY:  Yes.

THE COURT:  You’ll need some – usually again we have an expert who proves that, but I gather you

5

don’t have anybody that’s going to do that?

ARIF SAHINBAY:  No I don’t.

THE COURT:  All right, so it strikes me that what we’re left with here is some claim for future income and some claim for general

10

damages.  There’s nothing else is there?  You don’t have invoices, you weren’t working?  You haven’t worked, I guess you could try to prove that you would’ve been working, so I guess you would have income loss past and future that’s

15

all you’ve really got is that right, do you want me to go through it again?

ARIF SAHINBAY:  Yes.

THE COURT:  Okay general damages for your pain and suffering you want.  You say you might’ve

20

gone back to work, but for this you want some lost income?  Past and future.  You don’t have any – are you going to want future care costs as well?  You’re going to have to have somebody to prove that, I don’t think you’ve got anybody – I

25

tell you what we’ll discuss this at the end of your case what’s left okay? ARIF SAHINBAY:  No problem.

THE COURT:  I think Mr. Drimer that’s the way to

go at this?

  1. DRIMER:  Yes.

THE COURT:  All right okay.

  1. DRIMER:  One other thing Your Honour if I may assist?  I had an opportunity to show the statement of Agreed Facts to Mr. Sahinbay…

5

THE COURT:  Yes.

  1. DRIMER:  …over the break.  There were three items that he wanted to have removed from it… THE COURT:  Yes.
  2. DRIMER: …so I’ll have a revised copy

10

available for the Court tomorrow.

THE COURT:  All right okay so now I want to move to the item of selecting the jury.  So you’re going to listen to me very carefully.  Have you got a copy for him? I don’t think Mr. Drimer’s

15

going to need a copy particularly, but Mr. Sahinbay will.  Okay so I’m going to discuss with you what these pieces of paper say to explain to you what’s going to happen because Mr. Sahinbay if you say the wrong thing, we’ll

20

have to stop, we’ll have to send everybody out of the room, we’ll have to start all over again tomorrow because there won’t be enough people left if we don’t get this right the first time today, do you understand?

25

ARIF SAHINBAY:  I do.

THE COURT:  We’ve got 50 or 60 people in this room when we start this all right?

ARIF SAHINBAY:  Sure.

THE COURT:  So you don’t get to do very much when we do this, but you do have some rights and you do get to do a few things so you need to listen carefully.  You don’t get to ask the jury any questions.  You don’t really get to speak to them at all.  What’s going to happen is that

5

these 50 or 60 people will come in and I have some things that I want to say to them to explain to them what’s going to happen and to explain to them their role in this trial if we proceed to trial.  I’m going to introduce you.

10

I’m going to introduce Mr. Drimer.

I’m going to say a few things about the trial because I want to make sure that anybody who might know something about it, might’ve been in

15

the area on the day this happened or may have spoken to somebody was there, I want to make sure they can identify it and don’t start to conduct the trial because those kinds of people shouldn’t been here and are not properly jurors

20

okay.  After I finish it will probably take me about ten to 15 minutes to say what I have to say to then okay.  After that, this lady in front of me is going to be given a drum (like a lottery drum) or a bingo drum and she’s going to

25

have in that drum the names of all the 50 to 60 people that in the back of the room and she’s going to start calling out those names one by one as she pulls them out.  Those people will get up and some of them will say well I can’t be a juror and they’re going to explain to me why that is and I’m going to decide whether or not that’s a good enough excuse or reason to dismiss them and if I think it is I will. If I think it isn’t I won’t.  Some people won’t have any

5

objection or reason why they can’t be a juror and they’ll simply agree and they’re going to sit down in this row of blue chairs here until we have six, we only need six because this is a civil trial, all right?

10

When all six are here, you and Mr. Drimer get to play really your only role in this part of the exercise.  If you don’t want somebody to be a witness, not because you get to ask them any

15

questions you just look at them and for whatever reason you think you’d prefer they were not on the jury you will have the right to say well I don’t want number one, number two or number three.  You’ll say that about one person.  Then

20

Mr. Drimer will say that about one or not.  Two and you get four chances and we’ll replace each one all right.  You get four chances to say no to people and then it doesn’t matter anymore.  If you don’t want to say no, if you’re happy

25

with the people that are there you don’t have to say no just say yes, do you understand?

ARIF SAHINBAY:  I do.

THE COURT:  Now when that’s all over, and again

this lady in the front’s going to do a few things.  She’s going to have them all swear to do their jobs properly and I’m going to say a few more things I think, but basically we’re going to have one of these court officers is then going to take them across the street to

5

where the trial’s actually going to take place and then I’m going to talk to you Mr. Drimer for about two minutes and then we’re going to go all over and meet there in about a half an hour and start the trial.  The important thing here is

10

that you not say anything to these jurors about this case.  If you do we’ll have to stop and start all over again.  You’re only job is to say I’m happy with the six jurors or I would prefer to see which number you want changed until we’ve

15

given everybody four chances to do that, to object, do you understand?

ARIF SAHINBAY:  Yes I do.

THE COURT:  All right so we’re going to go step by step Madam Registrar very slowly here to make

20

sure that everything works the way it should particularly because Mr. Sahinbay won’t have the experience.  I take it Mr. Drimer this isn’t new to you?

  1. DRIMER:  No I’ve been through the process

25

thank you.

THE COURT:  All right okay, so let’s bring them in.  You sit down now Mr. Sahinbay.

…THE COURT ADDRESSES POTENTIAL JURORS

…SIX JURORS ARE SELECTED AND SWORN

…THE COURT RELEASES THE JURY PANEL (2:45 p.m.)

R E C E S S

5

…U P O N  R E S U M I N G

THE COURT:  Okay Mr. Sahinbay did you speak to

10

your wife?

ARIF SAHINBAY:  No I didn’t, I, I changed my mind that I’m not going to call her.

THE COURT:  You’re not going to call her?

ARIF SAHINBAY:  No I’m not.

15

THE COURT:  Okay so you understand what that means what I described to you is a family…

ARIF SAHINBAY:  I understanding

THE COURT:  …that’s gone okay.  So Mr. Drimer that means we will need – well let’s see how we

20

do today.  Assuming we finish for reasons that I don’t want to go into for court staffing reasons, I’m going to want to adjourn today at four thirty.  So it may be with life being the way it is that we’ll just get the openings done

25

anyway, that’s probably more ambitious, but a more realistic aim for today, but let’s see how we do.

  1. DRIMER:  Thank you.

THE COURT:  All right let’s bring them.

  5 …JURY PANEL ENTERS THE COURTROOM…COURT ADDRESSES THE JURY…OPENING ADDRESS BY ARIF SAHINBAY…OPENING ADDRESS BY MR. DRIMER (3:37 p.m.)
…JURY RETIRES (4:07 p.m.)

THE COURT:  You should have your people here – I mean it’s very difficult to predict and very

10

difficult for Mr. Sahinbay to predict, it could be I think it’s going to be difficult for you to be longer than an hour I could of course be wrong, but I’m guessing just from watching this and you’re opening was going to be a half an

15

hour and then it turned out to be much shorter, which is not unusual or surprising particularly, but just make that point by way of saying it’s been unpredictable what’s going to happen and I don’t want to – this is already a bit of a knee

20

jerk so I’d like to have it go smoothly tomorrow and not be waiting for a half an hour after his evidence for somebody to show up here.  So I don’t suppose having Mr. Da Silva here is much of a problem?

25

  1. DRIMER:  Mr. Da Silva had actually asked if he could come at three and I’ve already spoken with him and I’ve asked him to just come over.  He works up north and I asked him to come down even over his lunch break.  Dr. Wyndowe is scheduled to be here for 10:00 a.m.

THE COURT:  Can we start with Dr. Wyndowe rather than with…

  1. DRIMER:  Yes.

THE COURT:  …all right well then let’s do that,

5

but let’s be optimistic for a moment only for the purpose of making sure we don’t have a lot of blank time tomorrow not because I will expect this will happen.  If we were to start at ten as I expect we do and if we were to finish Mr.

10

Sahinbay in an hour and a half or even let’s say an hour just to be truly optimistic.  We would then be at eleven o’clock, then we’re going to have the doctor.  How long will you be in direct examination with the doctor?

15

  1. DRIMER:  Forty five minutes to an hour.

THE COURT:  All right so we’re now we’re at noon.  We’re going to have a break somewhere in there so now we’re at 12:15. Mr. Sahinbay you don’t know how long you’re going to be in cross-

20

examination do you?

ARIF SAHINBAY:  I don’t know it depends on… THE COURT:  It depends what he says?

ARIF SAHINBAY:  …the speech for sure.

THE COURT:  My worry is we could get to lunch

25

before Mr. Da Silva shows up and if we have to wait for three hours for a ten minute witness this is not going to be a good thing?

  1. DRIMER:  Right.

THE COURT:  So you know whatever you can do get him here?

  1. DRIMER:  We will.

THE COURT:  We could be wrong I mean he could be here until four o’clock I have no idea, but if it gets a bit silly I might just say to you

5

bring him on Wednesday morning… MR. DRIMER:  Sure.

THE COURT:  …and we’ll do it then, but I’d rather of course get as much done tomorrow as we can.  If we just have the doctor for Wednesday

10

you know I could charge the jury with a little bit of luck just before lunch or immediately after lunch.  Which would be a very nice way to get this – that would give them two or three hours to start on Wednesday and at that point we

15

might ask them to come in later on Thursday or tell them to come and wait.  My problem is that I have a medical appointment and you’ve all had doctor’s appointments when you get one you hold onto to it and I’m holding on to these they are

20

actually specialists so I…

COURT REGISTRAR:  We can ask the jury to come in later in the day?

THE COURT:  Well if they’re deliberating and it looks like they’re going to use up the morning

25

deliberating, they might as well be here.  It’s the deliberating part that’s bothering me.  On the other hand if they’ve already had two hours…

COURT REGISTAR:  If you can get your charge done

on Wednesday then it won’t matter if you’re here unless questions arise.

THE OCURT:  Well or if they come in at ten, they finish at 10:30 and then they’ve got to twiddle their thumbs till I get here I don’t think that’s a good idea either.  We’ll have to work

5

it out. I mean I just can’t figure it out until I see where we’re at.

  1. DRIMER:  And Dr. Liao’s only available at one o’clock on Wednesday.  She’s not available in the morning she’s a treating doctor as well

10

that was the issue.

THE COURT:  So we might not be here Wednesday morning either?  So we’re not going to charge them on that basis we’ll be lucky to charge them on Wednesday because what time is she going to

15

be here?

  1. DRIMER:  One o’clock.

THE COURT:  So I suppose we could have an early lunch which we can do.  We start at one, three… COURT REGISTRAR:  It sounds like we’re going to

20

end up doing the charge on Thursday?

THE COURT:  It sounds like it.

COURT REGISTRAR:  Yeah. THE COURT:  It sounds…

  1. DRIMER:  I’m sorry…

25

THE COURT:  No you go ahead.

  1. DRIMER:  …I suspect that Dr. Liao will be shorter, she’s a physiatrist and this case in my estimation it’s more about…

THE COURT:  Okay I mean I didn’t know about Wednesday morning I wish I did because I’m going to sound like I’m not sure what’s happening when I tell them tomorrow morning – we won’t be here Wednesday morning either.  It also doesn’t look like we’re terribly dedicated between Wednesday

5

morning and Thursday morning, I’m too happy about this.  Are you sure you can’t get her here?

  1. DRIMER:  I will try her again.

THE COURT:  You know what do me this courtesy,

10

if she can’t come, she can’t come.  But find out if you can get her here Wednesday morning I really think it’s important for us, it might be difficult for her.

  1. DRIMER:  Okay.

15

THE COURT:  Okay are you with me Mr. Sahinbay?

Do you understand what’s happening here?

ARIF SAHINBAY:  Yes I, I do.

THE COURT:  All right so I’m going to see you tomorrow, you’re going to be ready to start your

20

evidence and when you’re finished we’ll see where we are.

  1. DRIMER:  Your Honour would you like our materials for the threshold motion at this point or would you like to wait until the conclusion

25

of the trial?

THE COURT:  Well maybe we could just talk – first of all do you have questions for anyone, when are we going to do that?

  1. DRIMER:  I do, I’ve prepared some draft questions.

THE OCURT:  Have you given them to Mr. Sahinbay yet?

  1. DRIMER:  I have not no.  There a little bit marked up.

5

THE COURT:  A lot how many are there?

  1. DRIMER:  I’m sorry?

THE COURT:  How many are there?

  1. DRIMER:  There are ten. THE COURT:  Ten?

10

  1. DRIMER:  Yes, the first five are with respect to liability so chances are there isn’t going to be able to be taken care and then it’s just a matter of what amounts do you assess under the various heads of damage.  I have a

15

seatbelt question.  Contributory negligence.

Mitigation.

THE COURT:  Is there any suggestion that Mr. Sahinbay wasn’t wearing a seat belt?

  1. DRIMER:  We have no independent information

20

and he doesn’t have a recollection of the accident.

ARIF SAHINBAY:  There’s a police report that says… MR. DRIMER:  Yeah.

25

ARIF SAHINBAY:  Yeah the police report says I, I was and also the ambulance report.

THE COURT:  Says what?

ARIF SAHINBAY:  Um seatbelt was on.

THE COURT:  Was on or not on?

ARIF SAHINBAY:  On.

THE COURT:  well then what’s the issue?  I mean it sounds to me as if we’re going to decide these questions at the end of the evidence because there’s an awful lot of them.  At least

5

the end of his evidence if not your evidence because we don’t know yet what he’s proved and I’ve said to him I hope he understands by now that proving the case is kind of an important part of this.  If there’s no evidence for

10

example special damages takes up and sounds like it might be the case here, I’m not asking any questions about it.

  1. DRIMER: Right.

THE COURT:  Well you know what I think maybe

15

what the wiser thing to do here is set them aside, let’s wait until his case is in and then we’ll start talking.

  1. DRIMER:  Okay.

THE COURT:  All right, okay, what else do I need

20

to do?  Okay please see if you can get her here – what about getting her – I know you said she can’t be here until Wednesday, but just trying what about trying to get her here late in the day tomorrow?

25

  1. DRIMER:  We can try that.

THE COURT:  See what you can do.  I really am nervous now we’re just not going to be working hard enough to make this process look sensible to anybody.

  1. DRIMER:  I’ll certainly do my best.

THE COURT: I just can’t cancel this appointment

I mean I’ve been waiting for this… MR. DRIMER:  I understand. THE COURT:  All right, thank you very much.  Mr.

5

Sahinbay we can’t start without you.  Make sure you’re here please before ten o’clock okay?

  1. SAHINBAY:  I will.

THE COURT:  Mr. Drimer I assume I don’t need to say that to you?  Oh sorry you wanted to know

10

about the threshold?

  1. DRIMER:  Yes.

THE COURT:  Maybe we should talk about that for a minute I’m sorry.  I apologize.  You remember earlier today Mr. Sahinbay before we selected

15

the jury I had a discussion with you in which I pointed out to you that under the law now you don’t just get paid for whatever pain and suffering you suffered.  There’s some limitations before an award of that kind can be

20

made and we have a quite complicated process (I believe it’s a complicated process) for resolving these kinds of difficulties.

So for example, when the jury is deliberating,

25

we won’t yet know what they’re going to do, but we need or we usually begin the process of trying to determine what to do about these limitations at that time.  And what will happen then is Mr. Drimer is going to say (at least I believe that’s what he’s telling me) he’s going to say to me even if you get an award of general damages here, you should none the less get nothing.  He’s going to say you should get nothing because you haven’t passed the test that

5

allows you to get general damages at all.  And remember I said to you that test is earlier you have to be shown to have sustained serious disfigurement (that’s one possibility) or to be shown to have suffered what’s called a permanent

10

serious impairment of an important physical, mental or psychological function.  And Mr. Drimer’s going to make some argument based on the evidence and the law and there are cases that deal with this issue, I assume you’re going

15

to produce some of those?

  1. DRIMER:  Yes.

THE COURT:   In which Mr. Drimer’s going to say doesn’t matter what the jury does based on the evidence, you the judge (I) should make a

20

determination that Mr. Sahinbay has not met the test and regardless of what the jury does, should get no general damages.  Typically what happens is after that you will tell me why he’s wrong and I will not say anything about it until

25

after the jury comes back because if the jury let’s say (I mean this can happen, it happened at the last jury trial I did of this kind) it’s possible the jury won’t award you any general damages in which case it doesn’t matter.  I don’t have to deal with the issue and typically we don’t ask judges to do things which aren’t necessary because such things are said the word is “moot” meaningless.

5

So you need to be ready for that and what Mr. Drimer’s doing is what lawyers very often do, he’s saying to me look let’s get ready for that now and not be trying to do it when the jury starts its deliberations.  So you have you given

10

him copies of your material yet?

  1. DRIMER:  I’ve left the materials here. THE COURT:  All right, so give it to Mr. and okay have you got a copy for me?
  2. DRIMER:  I do.

15

THE COURT:  All right.  Now I’m going to tell you Mr. Sahinbay, I’m going to repeat to you that this is a complicated question and if you look at the second of the books that Mr. Drimer has given you, it’s got Moving Parties Factum

20

Schedule B on it.  Okay do you see that one?

ARIF SAHINBAY:  Yes factum, factum ah… THE COURT:  For example I want you to go I’m just going to show you a few things that you need to think about Mr. Drimer if you don’t like

25

this you better tell me soon okay?

  1. DRIMER:  Yes.

THE COURT:  What you should do is turn with me to the second page.  You see the heading NonPecuniary Loss and then the number five below it?  Do you see that?

ARIF SAHINBAY:  Yes.

THE COURT:  I’m going to just read it with you.

You’re going to read along with me? ARIF SAHINBAY:  Sure.

5

THE COURT:  Ready?

ARIF SAHINBAY:  Yes.

THE COURT:  “Despite any other act and subject to sub-section 6” and see immediately below the six and below that 6.1 do you see those two

10

sections?

ARIF SAHINBAY:  Yes.

THE COURT:  Okay, “…subject to sub-section 6 and 6.1”, the two immediately below, “the owner of an automobile” that’s you in this case, “the

15

occupants of an automobile” it’s also you “and any person present at the incident are not liable in an action in Ontario for damages”.  That’s actually Mr. Da Silva “are non-pecuniary loss including damages for non-pecuniary loss

20

under clause 61(2)(3) of the Family Law Act” (that’s where your wife came in and we’re not so concerned about that anymore) “from bodily injury or death arising directly or indirectly from the use or operation of an automobile

25

unless as a result of the use or operation of the automobile, the injured person has died or has sustained” (and this is where the test comes in that I’ve been telling you about) “a permanent serious disfigurement or permanent psychological impairment of an important physical, mental or psychological function”.

That’s the test that Mr. Drimer is preparing to say that you haven’t met.  So you should be

5

aware of that section.  Are you with me?

ARIF SAHINBAY:  Yes I am.

THE COURT:  All right secondly, you should go to tab two and this is a regulation.  So this is not a piece of legislation exactly.  What

10

happens is that some statutes like the Insurance Act (like what we were just looking at) have a power that allows the cabinet or really technically it’s the Lieutenant Governor, the

Queen, to make regulations which help us

15

understand what the statute actually means.  You don’t need to go to the legislature for that.  That’s what this is.  So this is for your purposes, this is the law just as the Insurance Act is the law, do you understand?

20

ARIF SAHINBAY:  No.

THE COURT:  All right, so in our law there are a couple of ways in which the law gets developed.  One is the judges can make the law by the decisions that they make.

25

ARIF SAHINBAY:  Yes.

THE COURT:  That’s not as common as it once was, but it does happen.  Typically our law comes from the Legislature, either from the Federal Parliament in Ottawa or from the Provincial Parliament here in Toronto.  We are here concerned about legislation that has been passed by the provincial legislature, do you understand so far? ARIF SAHINBAY:  Yes.

5

THE COURT:  The Insurance Act which is referred to at tab one – remember we were just looking at it?  Just open up tab one again, do you see where it says at the top of the page Insurance Act?  See that?

10

ARIF SAHINBAY:  Yes.

THE COURT:  So this section which has the test in it is a section from the Insurance Act.  This is the law because it’s in the Insurance Act, okay?  The Insurance Act also allows for the

15

Lieutenant Governor, it’s technically the Queen really it’s Cabinet to make regulations that help us understand what this law is.  So if you go to tab two, you see it says Regulation 381 (0.3) of the Insurance Act?  Do you see that?

20

So this is empowered by the Insurance Act and gives us some more information that applies to this test.  Are you with me?

ARIF SAHINBAY:  Yes.

THE COURT:  It is the law just like the

25

Insurance Act is the law, do you understand now? ARIF SAHINBAY:  Yes.

THE COURT:  All right, so for example if you go to Section 4.1, do you see that just at the bottom of the page?

ARIF SAHINBAY:  Mm hmm.

THE COURT:  Four point one for the purposes of Section 267.5 of the Act (that was the Section we were just reading)… ARIF SAHINBAY:  Yes.

5

THE COURT:  …”permanent serious impairment of an important physical, mental or psychological function means impairment of a person that meets the criteria set out in Section 4.2”.  So what it is telling you is that the test which is set

10

out – remember the test permanent serious impairment of an important physical, mental or psychological function?

ARIF SAHINBAY:  Yes.

THE COURT:  This Section 4.2 immediately below

15

tells you or helps explain what that is.  I’m not going to read that to you, but you should read it tonight?

ARIF SAHINBAY:  Yes. THE COURT:  Do you understand?

20

ARIF SAHINBAY:  Yes I do.

THE COURT:  Go over the page now to the bottom of the next page you see it says “evidence adduced to prove permanent serious impairment or an important physical, mental or psychological

25

function”, do you see that?

ARIF SAHINBAY:  Yes.

THE COURT:  Here you have an explanation of what that evidence is supposed to say.  You better read that.  You may have a problem here as I’ve been trying to tell you because you don’t have the proper doctors to come you read this and see with how what you want to do fits into it.  Do you understand?

ARIF SAHINBAY:  Yes, their doctors reports are

5

enough for me to, to…

THE COURT:  Well you don’t have them anymore.

Well you say it is…

ARIF SAHINBAY:  Their doctors…

THE COURT:  …well you said that over and over

10

again.  You read this and make sure… ARIF SAHINBAY:  Sure.

THE COURT:  …how you’re going to make it fit.  So that’s why this is here and that’s what I expect Mr. Drimer is going to argue or attempt

15

to at the end of the day.  You know what, what Mr. Sahinbay has demonstrated here is not something that demonstrates that kind of impairment and I expect he’ll also say there isn’t the proper evidence.  So he’s going to say

20

you don’t get anything even if the jury gives you something because you haven’t proven the test according to the law.  Do you understand now? ARIF SAHINBAY:  Yes.

25

THE COURT:  You better read this stuff and understand what it means.  The only other thing I can tell you is that if you want to understand more clearly what Mr. Drimer is going to say, this first small document which is called factum, do you see that?

ARIF SAHINBAY:  Yes.

THE COURT:  He’s going to have – you better read this, this is going to tell you the argument he’s going to make, that’s what he’s written

5

down here.  Typically if you had a lawyer I’d be asking that lawyer to give me a responding factum.  I’m not going to do that here because I think it would be difficult for you to do.  So we’re going to waive the rule on that one?

10

  1. DRIMER:  Yes.

THE COURT:  Okay, the other book is a series of cases that Mr. Drimer thinks will help me understand how other judges have dealt with this problem in similar situations, or situations

15

which he’s going to relate to what’s happened here.  If you want to know what he’s going to say about each of these cases, go to the argument the factum and what you’ll see is if you go to the first page, you see at the bottom

20

it says “Part Three – The Law?

ARIF SAHINBAY:  Yes.

THE COURT:  All right, so if you read that part you go over the page what you’ll see for example

– go to paragraph eight.  You see Mr. Drimer has

25

written out what he – part of what he says the law is, “the present case is governed by Ontario Regulation 381.03” we just looked at that regulation do you remember?

ARIF SAHINBAY:  Yes.

THE COURT:  And it applies to accidents that occur on or after October 1st, 2003, that’s certainly this one. “Prior to the implementation of Bill 198 of the Insurance Act” which is something you don’t need to worry about here,

5

it’s something that put in the last set of amendments and that’s all that Mr. Drimer is arguing from.  “The Insurance Act has undergone several amendments, particularly in respect of threshold”, threshold is the test here that

10

we’ve been talking about.

ARIF SAHINBAY:  Yes.

THE COURT:  Did you meet the test?  Did you meet the threshold?  “The intention of the legislature in creating a threshold is restrict

15

toward claims by limiting the right to sue for non-pecuniary damages arises from motor vehicle accidents”.  Which is what I’ve been telling you, if you don’t meet the test, then you don’t have the right to sue.  And the cases that he’s

20

listed below tell you Savarin (ph) is a case he’s going to rely on to make that point.  Okay if you go over the page you’ll see under the next paragraph, Myer vs. Bright (ph).  That’s another case that he’s going to use to prove the

25

points that he’s made in paragraph nine and the same in paragraph ten where you have Omed vs. Challenger (ph).  But for all these cases, they’ll be in this third book.  Mr. Sahinbay just look at me so you can see what book I’m talking about, the thicker of the three books.

ARIF SAHINBAY:  Yes big one, yes.

THE COURT:  Okay so you can find Myer vs. Bright

(ph) for example, it’s tab two the second case.  Okay?  I would suggest that you get to work on

5

this now.  This is going to come on pretty quickly okay?

ARIF SAHINBAY:  Why did I receive it now?  Why didn’t I receive it ten days ago?

THE COURT:  Because at the beginning of the

10

trial because this is typically when we get this.  We know this is going to happen, it’s part of how these trials are run and because if I ask Mr. Drimer he’ll tell me well I wanted to understand the case I mean I have to get to

15

trial before I know exactly what’s going to happen and whether I’m actually going to question this.  It is possible there are cases where the lawyers don’t bother to challenge the threshold, where it’s clear that the threshold

20

is met.  That happens.  This case isn’t one of them okay.  So when we get to it if you need more time, we’ll have to think about that then.  I’m encouraging you to do this now so that you’re ready at the time.  Do you understand?

25

ARIF SAHINBAY:  No.

THE COURT:  What do you mean, why do you not understand that?

ARIF SAHINBAY:  I mean I don’t understand the

part that I, I’m getting this very late.

THE COURT:  You’re not getting it late.  If you were a lawyer you would know that this is generally given now.  This isn’t late.  This is the problem in not having a lawyer and have so easily gone on to do this on your own.

5

ARIF SAHINBAY:  Unfortunately I’m here by myself yes.

THE COURT:  Yeah so…

ARIF SAHINBAY:  I don’t have a lawyer.

THE COURT:  …you’re going to have to work with

10

us now and do your best to catch up on this.  This is not unusual and it’s not late.  It would’ve been late if he had given it to you the moment he was going to start arguing it, that would be late, this isn’t.  So you get at this

15

and do the best you can.  I’ve tried to help you by explaining how this works to you, I hope you’ve listened and taking it in?  And if I need to do it again ‘cause I will.

ARIF SAHINBAY:   No problem sir I have nothing

20

to lose, so I’m here…

THE COURT:  You do have something to lose, everybody has something to lose?

ARIF SAHINBAY:  I don’t have any – no nothing left.

25

THE COURT:  Well has anybody talked to you about costs or explained to you how you can lose over the issue of costs?

ARIF SAHINBAY:  They, they already yes.

THE COURT:  Well you can lose.

ARIF SAHINBAY:  Yes.

THE COURT:  One of the things that Mr. Drimer’s going to do when this is over, if you don’t win – if you win you’ll have trouble getting costs because costs are generally for lawyers.  The

5

rules would allow you to get costs, but it’s very rare.  So I’m telling you now if you haven’t heard this before.  If you are not successful and I’ve told you that there are difficulties with what you’re trying to do here.

10

Mr. Drimer is likely to say okay now I want my costs and typically the winner gets costs, not always I’ll have to think about it.  I might have some things to say about Mr. Drimer if we ever get there, but you could lose because he

15

could get an award of costs against you and he could start asking you to start paying.  So don’t say that you can’t lose you can.

ARIF SAHINBAY:  Have you made your decision sir? THE COURT:  No first of all there’s no decision

20

for me to make, that’s the jury’s decision and secondly, what I’m worried is that I need you to do your best to understand what’s happening here.  I am trying to do my best to be fair to you in circumstances where you are disadvantaged

25

by not having – you don’t have to have one, remember the first thing I said to you.  You’re under a responsibility to understand what we’re doing here.  That’s what this discussion’s all about.  I have no idea what’s going to happen here because we haven’t started the evidence yet.

ARIF SAHINBAY:  I’m depending on the law, so I’m trusting the Canadian law, so I’m not trusting you, I’m not trusting him or anyone else.  I’m

5

not relying on you.  So I’m just relying on the Canadian law so I hope it’s going to be protecting me so that’s all.

THE COURT:  All right you need to understand that trials are at the best of times difficult

10

to predict and jury’s are difficult to predict because they just like you they are fresh to this, that’s why we bring them here.  We want the community to make the judgment, not judges.

So you need to understand this is important, you

15

can lose here and you can have to pay costs.  It’s possible, you should know that. I’m not saying it will happen, I have no idea, but it could happen.  It could happen to anybody in any trial in any circumstance.  Okay do you

20

understand?

ARIF SAHINBAY:  Yes I do understand that. THE COURT:  All right. Mr. Drimer you know I really want this to be fair and right so I’m going to do something with some trepidation.

25

I’m going to give Mr. Sahinbay one more chance to think about whether he really wants to proceed with this because I think it’s the fair thing to do.  He may not, it doesn’t sound like he does, but I just I don’t want this to be misused and I don’t want him not to get his proper day in court, the day in court that he wants.  So Mr. Sahinbay remember earlier I asked you do you want an adjournment? ARIF SAHINBAY:  No I would like to proceed sir.

5

THE COURT:  You still want to even after everything we’ve just talked about?

ARIF SAHINBAY:  Yes.

THE COURT:  Okay, I’ll see you tomorrow morning.  Anything else?

10

ARIF SAHINBAY:  Thank you very much.

THE COURT:  Mr. Drimer do you have anything to say that I…

  1. DRIMER:  No I’ll have the relied statement of agreed facts for court tomorrow.

15

THE COURT:  Okay and just let’s put the questions aside, we’ll get to them… MR. DRIMER:  Yes.

THE COURT:  …it sounds like we’re going to have a break somewhere along the way to deal with

20

them.  I think it’s too early basically.  I do want to say one other thing to you and I’m going to say it to Mr. Sahinbay as well.  It won’t mean very much to either of you but the nature of this trial is such that an hour and a half

25

long or hour long typical charge for me doesn’t seem sensible.  I think the jury would wonder what I was doing.  So I have started the business of trying to cut back the general format to something much more skeletal and you’re going to want to look at it because you’ll have more familiarity than Mr. Sahinbay and I’m going to want him to look at it so he understands what I’m going to say so he has that chance. So I’m not sure how we’re going to work

5

that in, but I’ve started that process already and I’ll do some work on it probably tomorrow morning.

  1. DRIMER:  Thank you. THE COURT:  Okay.

10

ARIF SAHINBAY:  Thank you.

THE COURT:  All right.

* * * * * * * * * *

15

20

25

FORM 2 

 

Certificate of Transcript 

Evidence Act, subsection 5(2)  

I Tammy Irvine, certify that this document

is a true and accurate transcript of the

5

duplicate recording of Arif Sahinbay, Dilek Sahinbay vs. Ricardo Da Silva and Isilda Da Silva in the Superior Court of Justice held at Toronto, Ontario on November 17, 2014, taken from Recording No. 4899-701-20141117- 0151709-10-LEDERET, which has been certified in Form 1.

10

April 5, 2015         Tammy Irvine (NOT ORIGINALLY SIGNED)

……………..  ………………, Court Reporter

(Date)              (Authorized Person)  

15

Legend

(sic) – Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – Indicates preceding word has been spelled phonetically.

20

 

 

 

 

 

 

 

25 Photocopies of this transcript are not certified and have not been paid for unless they bear the original signature of Tammy Irvine, and accordingly are in direct violation of the Ontario 

Regulation 587/91, Courts of Justice Act, January 1, 1990

SUPERIOR COURT OF JUSTICE

5 B E T W E E N:

ANIF SAHINBAY and DILEK SAHINBAY

Plaintiffs

10 – and –

RICARDO DA SILVA and ISILDA DA SILVA

Defendants

15

P R O C E E D I N G S   A T   T R I A L

20 BEFORE THE HONOURABLE MR. JUSTICE T. LEDERER

AND a JURY on NOVEMBER 18, 2104 at TORONTO, Ontario.

25APPEARANCES:
A. Sahinbay Self-Represented
A. Drimer Counsel for R. Da Silva
and I. Da Silva

TUESDAY, NOVEMBER 18, 2014 (10:04 a.m.)

THE COURT:  Good morning, everybody.

  1. DRIMER:  Good morning, Your Honour.

5 ARIF SAHINBAY:  Good morning.

THE COURT:  Mr. Sahinbay, are you ready to go?

ARIF SAHINBAY:  Yes, I am.  Before I would like to – before I start, I would like to file these MRI reports.

10 THE COURT:  Okay.  Well, we should only do that

when the jury is here.

ARIF SAHINBAY:  Okay.

THE COURT:  The jury should see everything that we do.  Are you going to have any objection to that?

15 MR. DRIMER:  As long as it’s just the report and no

covering letter from a doctor then I don’t have any issue with it.  Yes, this is fine.

THE COURT:  Okay.  So there will be no problem with that, but wait until the jury comes in.  Okay?

20 ARIF SAHINBAY:  Sure.  No problem.

THE COURT:  That’s the first thing.  The second thing I wanted – something just occurred to me, Mr. Sahinbay, that you may want to think about and I will ask you this in front of the jury because,

25 again, I think the jury should see the whole

process.  If you had a lawyer here, typically the lawyer would now be saying, “I want an order excluding witnesses.”  In other words, all of the witnesses who are going to come later in the trial would be asked to leave the room and the reason a lawyer would normally ask for that is because most people want witnesses to give their evidence.  They don’t want their evidence to be changed by what they hear in the trial.  They won’t want people to shape their evidence by what happens in the trial.

5 So usually the person in your position would have

asked me by now, I think, for an order excluding witnesses.  So it’s up to you whether you want such an order?  I just repeat again, and I suspect Mr.

Drimer will acknowledge this, typically this would

10 happen.  So I’m going to ask you whether you want

such an order when the jury’s here so they can see the process and you tell me what you want.  And if you want an order, the Registrar has something she needs to do to tell everybody and we post something

15 on the door to tell people and all that sort of

stuff.  So I need you to think about that and to give me your answer when the jury is here.  Do you understand?

ARIF SAHINBAY:  Yes, I understand.

20 THE COURT:  Do you want to think about it for a

moment?  Do you want to speak to anybody about it? ARIF SAHINBAY:  No.  I – well, I – it – it doesn’t matter for me.  It’s not…

THE COURT:  Well, I’m just going to you again,

25 typically, people would ask for it.  If you don’t

want it, that’s fine.  But typically, people would want such a thing.

ARIF SAHINBAY:  Okay.  Then I want too.

THE COURT:  Well, Mr. Drimer?

  1. DRIMER:  Yes, I’m fine with that, Your Honour. THE COURT:  All right.  Okay so again, I’d like to do it when the jury comes in so I can explain to them what’s happening just as I’ve explained it to you.  So when we get to it, you tell me what you want and then we’ll do it.  Okay?

ARIF SAHINBAY:  No problem.

5 THE COURT:  All right, doctors, second doctor?

Where are we?

  1. DRIMER:  Unfortunately, she’s not able to change her schedule for today or tomorrow.  She’s doing O.H.I.P. appointments.

10 THE COURT:  Do you need her?

  1. DRIMER:  I do.  Yes, I need hear.  And she’s – she’s speaking at a conference in Burlington tomorrow morning.  As soon as she’s done, she’s going to come right over here.  So I initially

15 estimated 1:00.  She said she will try to be here

for 12:00 and I do not expect to be very long with her.

THE COURT:  She’s your last witness the way we’re doing this?

20 MR. DRIMER:  Yes.

THE COURT:  So I’ve been asked whether I would take on another matter on Thursday and I’ve said I don’t think I can, but I would speak to them.  So can I just play this out?  If we finish – everybody else

25 can – I mean, if today goes longer than we

presently plan, we could still get – we could come back tomorrow and finish today.  So we could, by noon tomorrow assuming – let’s just play this out from there – we would have everything else done but that one doctor?

  1. DRIMER:  Yes.

THE COURT:  So we could call her at noon.  You could and Mr. Sahinbay could do his – you could both do your submissions immediately after lunch.  I could charge them and still maybe get to this by   5 tomorrow if she gets here by noon.

  1. DRIMER:  Yes.

THE COURT:  Okay.  So Mr. Sahinbay, I just want to make sure I’ve explained this to you properly.  Just wait.  We’ll talk about that, but let me just

10 talk about this first and get this one thing done.  In order to plan this out properly, one of my concerns is that we don’t give the jury the sense that we’re wasting their time or taking advantage of them and that’s why I said yesterday I’m worried

15 about adjourning for Wednesday morning and

adjourning for Thursday morning.  It just looks like we’re not really paying enough attention to the trial, letting other things govern it.  So I’m anxious, if we can – only if we can, to try and get 20 to the point where this will be done tomorrow or at

least where the jury will be ready to start its deliberations tomorrow.  So what I’m planning to do is – what I’m hoping will happen, we’ll just have to see – things don’t work always the way we hope.

25 That we’re going to do your evidence now.

Hopefully we’ll finish it by lunch.  Then we’re going to do the ten minute witness immediately, maybe even before lunch if we’re lucky.  Then we’ll do the other doctor and maybe we’ll start.  We may get really lucky here and we may not.  But we’ll get all of that done, I hope, today.

Then what we do is adjourn until noon tomorrow with the hope that the doctor would be here, do the other doctor by lunch.  We might sit a bit later because we’re starting late into the lunch hour and

5 then plan out the rest of the day.  Mr. Sahinbay,

does that sound about right to you?  Do you understand what we’re…

ARIF SAHINBAY:  Yes, I do.

THE COURT:  All right.  Now, that book that you

10 were holding up.  What did you want to tell me

about?

ARIF SAHINBAY:  Well…

THE COURT:  That’s the cases from yesterday?

ARIF SAHINBAY:  Yeah, this will takes… 15 THE COURT:  The threshold material.

ARIF SAHINBAY:  …time too, so I just want to let you know because in summation I will talk about this right?  So do you want me to talk about it…

THE COURT:  No, no.  You don’t talk about that in

20 your submissions to the jury.  That’s something

that you do later.  That’s a completely different matter.  That’s a matter only for me.

ARIF SAHINBAY:  Oh, I see.

THE COURT:  Not for the jury.  The threshold – as I

25 said to you, there’s a – just to remind you of what I said, in order to get – the jury will consider whether you should get any damages in their minds for pain and suffering.

ARIF SAHINBAY:  No problem.

THE COURT:  The problem is, that there is the test that there is the test you need to meet.  Even if they give it to you, you may not get it because it’s still left to me to decide whether you’ve met the test that we discussed yesterday in the Insurance Act, serious disfigurement or permanent loss of one of the principal functions that are

5 outlined in the Act and regulations.  So when the

jury’s off deciding it, you’re going to make submissions to me about whether that test has been met.  Frankly, if I say the test has not been met, it doesn’t actually matter very much what the jury

10 does, but we have this complicated system which I

tried to explain to you yesterday…

ARIF SAHINBAY:  Yes.

THE COURT:  …because of the way the laws evolved about general damages.  But that’s not a question

15 for the jury.  In fact, we don’t want the jury to

know about it because we don’t want the jury’s decision to in any way be influenced by that idea.  We want their decision to be their decision based on what they hear in Court.  So it would be wrong 20 for you even to mention it to them.

Once the jury has gone out to decide their case, we will then discuss that.  We can’t discuss it before then because I need all of the evidence to make the

25 decision I need to make.

ARIF SAHINBAY:  Sure.

THE COURT:  So while we’d be tempted maybe to do it tomorrow morning, we really can’t.  We have to have the last evidence in.  So as soon as the jury goes out to decide its deliberations, then we’ll turn our minds to that and I won’t be making any decision about it until after the jury has made its decision because it may not be necessary for me to do so, depending on what they do.  Do you understand?

ARIF SAHINBAY:  Mm hmm, I understand, yes.

5 THE COURT:  All right.

ARIF SAHINBAY:  I’m ready, so I just want to let you know that.

THE COURT:  Well, it does occur to me that – don’t forget, the way this is working out, if we

10 accomplish what we’re trying to today you’ll have a

couple of hours tomorrow morning when you could work on this and think about it.

ARIF SAHINBAY:  I already did, so it’s not – basic rules or different…

15 THE COURT:  All right.  If you’re confident, then

that’s great.  The only other thing I should say to you that I’m going to mention the jury, remember I had asked them about sitting late.  It doesn’t like that’s going to be necessary, but I did get a note

20 from one of them that she has work that she goes to

each night at 6:00 p.m.  Well, I say she.  I don’t actually know who it is.  So I’m just going to announce to the jury that we will on no account be sitting past 5:00 to give whoever that is the

25 comfort of knowing that they’re not at risk.  Okay.

ARIF SAHINBAY:  Okay.

THE COURT:  All right.  What did I just say I’m going to do with the jury?  I’m going to do excluding witnesses and then we’re going to start.  All right.  I’m also going to just explain to them what we expect to happen today so they’re prepared because they don’t yet know that Wednesday morning’s a problem so I should tell them that.  You know what we could tomorrow?  We could meet tomorrow morning at 11:00 to talk about the jury charge, maybe I could have something for you by

5 then, and the questions.  Maybe we’d do that.  Do

you understand what I’m saying, Mr.?  Maybe we’ll meet tomorrow, the three of us will meet here in Court tomorrow at 11:00 to discuss the questions for the jury and I might review with you my Jury

10 Charge so that you can begin to get the idea of

what I might say to the jury at the end.

ARIF SAHINBAY:  Sure.

THE COURT:  Okay?

ARIF SAHINBAY:  No problem.  All right.

15

… JURY ENTERS (10:35 a.m.)

20 THE COURT:  Good morning.  So I am not sure whether

we have a full day today for you or not?  I’m going to explain to you the timing and how we think this is all going to develop.  Before I do that, I wanted to – I mentioned to you yesterday the

25 possibility that I might need to ask you to sit a

bit later than usual and asked you whether or not any of you had any concerns and to just give me a note.  So I just wanted to give you the following assurance.  First of all, the way things are working out I don’t think there’s going to be any need to sit late but, in any event, we won’t be sitting past five o’clock so that if you have any concerns about later in the day, I hope that meets any concerns that you do have.

Insofar as where I think this is going to go or how

5 this is going to develop over the course of the

day, I expect today that we’re going to hear the evidence from Mr. Sahinbay.  We’re going to start with that in just a few minutes.  He’s only going to be calling one witness, which is himself in this

10 case.  Once that’s done, we’re going to turn to the

witnesses for the defence.  We’re going to hear from Mr. Da Silva, I’m told that will be quite brief, and then there will be two doctors.  We’ll hear the first doctor today.  Mr. Drimer has

15 informed me quite late in the day yesterday that,

as matters have transpired, the second doctor isn’t available today which is going to cause us some problem.  In fact, she’s not available until tomorrow, we think probably around noon.

20 MR. DRIMER:  Yes.

THE COURT:  So we’re going to probably not do very much until noon.  We’ll probably tell you not to come until noon, depending on whether we get through everybody else today.  Mr. Sahinbay, Mr.

25 Drimer and I will still be making use of the time.  There’s some things we need to do to prepare for the end of the trial which don’t involve the jury, and so we’ll be meeting in the morning to get all of that underway in the hopes that the following things will happen.

If we get to the end of the first doctor today, as I suspect we will, we will hear the second doctor at noon or as soon as she gets here.  She will probably be a little bit shorter, as I understand

5 it than…

  1. DRIMER:  Yes.

THE COURT:  …than the evidence you’re going to hear today from the first doctor and we’d probably sit into the lunch hour to try and get her finished so

10 that all the evidence is in.  We’d take a later

lunch.  I’ll consider the possibility if I might ask you to take a shorter lunch so that we can move immediately into the submissions, first from Mr. Sahinbay – no, actually it will be the reverse –

15 first from Mr. Drimer, then from Mr. Sahinbay and

then I’ll have a jury address and my hope still is that we’ll get you into deliberations by tomorrow afternoon.  We’ll just have to see, but that’s the goal and I’ll let you know over the course of the 20 day whether I think we can still meet it.

The goal for today would simply be to get through the evidence of the first doctor.  If we don’t finish that, that doctor is available tomorrow

25 morning and we’d just continue it at the time.  At

the moment, we hope we won’t have to call him.  We’ll just have to see how it all works out.  So that’s the schedule that I’m working towards.  My plans mess up just about as often as they work out, but we’ll see how it works.

Now, Mr. Sahinbay, there’s one thing I need to discuss with you before we start.  I want to indicate to you and I want to indicate to the jury that typically, but not always – typically in a

5 circumstance like this, the person in your

position, particularly in they were represented by a lawyer, would be asking me now whether or not we should have an order excluding witnesses?  That is to say that anybody who’s going to be a witness

10 later in the trial should be told that they can’t

sit now.  We do this, or lawyers generally ask for this, because they want the evidence they get from each witness to be evidence of that witness.  They don’t want it to be shaped by what they may have

15 heard somebody else say in the course of the trial.  We want their evidence unchanged, un-amended, not in any way responsive to what somebody else has said.  So I don’t know whether you want such an order, but if you do this would be the time to ask

20 for it?

ARIF SAHINBAY:  Yes, I would like to get that order, sir.

THE COURT:  All right.  So Mr. Drimer, I’m going to assume you have no objection?

25 MR. DRIMER:  No objection, Your Honour.

THE COURT:  All right so Madam Registrar? COURT REGISTRAR:  By direction of His Honour, all witnesses in this case are to be excluded from the courtroom until called.  While waiting to be called, you will not attempt to communicate in any way with any witness who has previously testified in this case.  If you are being called as a witness, you will leave the courtroom at this time and be available to come to the courtroom when required.  Would counsel ensure that their respective witnesses leave the courtroom?  Thank

5 you.

THE COURT:  Okay.  And just to be clear, we will be posting something on the door Mr. Sahinbay, so that anybody who comes now, in particular the witnesses of Mr. Drimer, they’ll see the notice and know that

10 they’re not to come into the courtroom while it’s

in – I know, Mr. Drimer, when you see them you’ll know that the order’s been made?

  1. DRIMER:  Yes.

THE COURT:  All right.  Okay, anything else before

15 we start?

ARIF SAHINBAY:  Yes.  I would like to file these MRI reports?

THE COURT:  Well, what we’re going to do is you come.  We’re going to ask you to be sworn in or to

20 affirm.

ARIF SAHINBAY:  Sure.

THE COURT:  Then that’s really going to be part of your evidence.  So once you start, at the appropriate time in your evidence, if you want to 25 do it right at the beginning that’s fine, you can

ask that these reports be filed and exhibited.

And, Mr. Drimer, you’ve seen these reports?

  1. DRIMER:  I’ve seen them, yes, Your Honour. THE COURT:  I take it you’re not going to have any objection?
  2. DRIMER:  No objection.

THE COURT:  All right.  So what we’ll do then is – but I think you shouldn’t do it now.  You should do it as part of your evidence and then they become the evidence, or become part of the evidence of the

5 trial.

ARIF SAHINBAY:  Well, I would like to talk about this too so that…

THE COURT:  Well, you do that as part of your evidence.

10 ARIF SAHINBAY:  No problem so can I…

THE COURT:  No, you should come up here now.

ARIF SAHINBAY:  Okay.

THE COURT:   Bring them with you.

ARIF SAHINBAY:  No problem.

15

ARIF SAHINBAY: AFFIRMED 

 

EVIDENCE INCHIEF: 

 

20 THE COURT:  You can sit down, Mr. Sahinbay, if you

want.  It’s up to you. A.  Yes, okay.

THE COURT:  And just to remind you, the microphone does not amplify your voice in the room.  It’s

25 really for the reporter to take down, so you need

to speak loud enough so all the jurors can hear you.

  1. No problem.

THE COURT:  And I’m going to remind the jurors to what I said yesterday, that in the absence of somebody asking questions, that one of the things that the questions do is to shape the evidence so you can see the organization.  In this case, you should listen very carefully to what Mr. Sahinbay says because we won’t have that interruption and that organization, as you and I both listen to what   5 he’s going to say.  Okay, Mr. Sahinbay.

  1. Okay.  Now do I get permission to…

THE COURT:  Yes.  You have some reports that you want to file, which again, Mr…

  1. I already gave it to him.  So – one copy and

10 this copy is for the jurors.

THE COURT:  All right.  These have been stapled together.  Can we just exhibit them as one document?

  1. DRIMER:  I take no issue with that, Your

15 Honour.

THE COURT:  All right.  So let’s make – Madam Registrar?

COURT REGISTRAR:  Exhibit 1.

20

EXHIBIT 1M.R.I. REPORTSProduced and Marked 

THE COURT:  Do you have a second copy?

25 A.  Yes I do.

THE COURT:   If there’s a copy for me, then I can make notes on them and the registrar will have a copy to be exhibited formally.

COURT REGISTRAR:  There’s an extra copy for you.

THE COURT:  You take this one.  I’ll take that one.

Okay.

  1. Your Honour, and the jurors, I would like to start my – my speech now.  I would like to start from 2006.  In 2006 I was a truck driver.  I was driving trucks all over the States and Canada.  So

5 I start feeling depression in 2006 and I kept

working and I let the – my doctor know that sickness.  So they prescribed me some medication and I keep working by taking those medication.

Unfortunately, it didn’t go well.  My depression

10 was getting worse.  So that’s why, because of this

depression, I had trouble with the Manitoba and North, North Dakota border – border patrol (American side).  I had some kind of argument with them.  So just because of this – this depression

15 that I’m blaming because otherwise I wouldn’t have

got that kind of argument.

THE COURT:  Sorry, I missed that.  You had an argument with who?

  1. With border patrol.

20 THE COURT:  Border patrol.

  1. Yeah border, American side.  So because of this depression that I feel that I wound up in that argument with them.  Otherwise, I wouldn’t – I wouldn’t have done that.  So what happened is they

25 put me in a cell, put handcuff on my hands.  Then

after two hours, they released me.  They couldn’t find anything.  Then I decided to give some break for, for working and get the proper treatment.  By the time I keep crossing border, I keep working and I told my psych – I told my family doctor to send me to psychiatrist for my depression.  And I explained the situation, and I explained him what happened.

So this is a serious issue, so I would like to deal

5 with this sickness.  This depression comes before

my work.  So that’s why I um I stopped working and I start getting treatment from psychiatrist and I was taking pills and some therapies.  I was getting better.

10

In 2007 until 2008/2009, because my psychiatrist told me that it takes some time so that’s why he put me on all these O.D.S.P., because of my income loss.  So I have family to care of.  I have family

15 to care of and, unfortunately, welfare is not

enough.  So that’s why he put me on O.D.S.P. and O.D.S.P.’s a little better amount of money, so I could take care of my family and I could pay my rent and expenses.  I got that treatment until

20 2010.

I was thinking about, even I told to my psychiatrist at that time before the accident.  I said I was going to start working.  Well, I was

25 working when I was in depressed, so now if I’m a

lot better that I can start get back to work and because I was making good money.  So he said okay and then I start looking for a job.  I found a couple.  I was looking for a, a unionized job for my security.  So paving companies mostly, the construction because I can drive dump truck and I can operate um Bobcat.  I can operate spreader, other machines.  So I have knowledge about the interlocking to construction.

So, unfortunately April the time that that season

5 starts and I was going to start working April 9th.

I was travelling southbound with my two friends on Dufferin Street.  I was going to drop them off at the – at the workplace and we were at the coffee shop on Dufferin and Wilson.  So I was travelling

10 southbound and I saw the red light and I stop it.  As soon as I stop it, then it’s blank.  I don’t remember what happened?  They told me that – they told me that somebody hit my car from the behind.

  1. DRIMER:  Excuse me, Your Honour.  Hearsay.

15 Objection to the evidence of…

THE COURT:  Okay Mr. Sahinbay, what Mr. Drimer is saying is that, “Somebody told me I was hit from behind,” is hearsay evidence because it’s not what – and he’s objecting on that basis.  I’m not going

20 to allow the objection for this reason.  I think in

the context of this case, the idea that it was a rear-end collision is accepted.  It’s not really a controversial proposition.  When it’s not controversial, we would typically allow hearsay

25 evidence.  All I’m saying to you is you don’t need

to worry about his objection.  I’m not recognizing it.

  1. A. No problem, thank you very much.

THE COURT:  You go ahead.

  1. Yes and also, I read this – this from the police report later on, ambulance report and emergency report and two people who were travelling with me, they told me that too.  But – they got injured, but they didn’t have that much damages, so they didn’t go further and go to hospital. They took me hospital and I was told I stayed eight  5 hours and also this is already on the hospital

report.  So I stayed there eight hours.  They got – they got um CT scan, which is for my head, skull.  It’s about x-ray.  It’s just like x-rays.  CT scan is just like x-ray, but it takes your skull

10 fracture, if there is any fracture there.  It

doesn’t relate to anything about – it doesn’t show the brain actually.  So it was clear.  That’s what I found out, and I saw the reports too.  Then they released me.

15

After three months, next three months, I was blacked out.  I don’t remember anything.  My wife told me that unfortunately I was losing myself, pee and poo, in the middle of the apartment.

20 THE COURT:  I’m sorry, can you say that again?  I

just didn’t get that?

  1. I was peeing and poo – pee and poo… THE COURT:  Yes.
  2. …in the middle of the apartment, that

25 unfortunately I wasn’t myself.

  1. DRIMER:  Excuse me, Your Honour.  I object to that as well.  It’s evidence that his wife told him. THE COURT:  Do you know what, Mr. Drimer?  I think we’re going to have to have a little bit more latitude here to allow this to happen.  I’m fairly sure the jury will appreciate the nature of the difficulties that you’re raising and I’m pretty sure I do.  In the end, this evidence can be admitted understanding that the jury will consider its source and apply their judgment as to what

5 weight it should given, whether it should be

believed, what kind of impact it’s going to have.  So I’m going to allow these answers.  I think I’m going to leave it to you to make submissions about this at the end, if you need to do so.  I think

10 that in these circumstances, being overly technical

on these objections is going to make this more difficult and not really get us very far.  I’m not suggesting you shouldn’t make them if you’re concerned again, but as a general proposition I’m

15 inclined to give leeway here.  I think it’s

appropriate.

  1. DRIMER:  Thank you, Your Honour.

THE COURT:  Okay.  Again, Mr. Sahinbay, what has happened, there has been an objection because this

20 is something your wife told you that happened…

  1. Yes

THE COURT:  …but I’ve told Mr. Drimer that I’m not particularly concerned about it.  I can’t remember,

I may have said this to you earlier.  If I didn’t,

25 I should just explain to the jury now that

traditionally in our law we didn’t allow hearsay evidence at all.  But in the last, I have to think probably 10 or 15 years we’ve relaxed our view on this.  We acknowledge that hearsay evidence may be reliable, that we need to make that judgment in each case as to whether or not, in the circumstances, we think that it can be accepted or not.  In this case, because it’s the nature of a recollection arising from a narrative that Mr. Sahinbay is giving, it seems to me that I should leave this evidence to be heard by you, recognizing

5 or asking you to recognize its source and to

consider that when you decide what credibility or what import to give to it.

I’m going to ask Mr. Drimer, if he wants to, to say

10 something about that in his submissions.  I think

that’s the better place to do this, rather than to keep interrupting what’s really the story, a narrative that Mr. Sahinbay wants to explain to you and which I think he should be able to explain to 15 you.   Mr. Drimer, do you understand?

  1. DRIMER:  Yes, Your Honour, I do.

THE COURT:  Okay, Mr. Sahinbay.

  1. Thank you, Your Honour.  I would like to – I would like to also tell you this.  I was totally 20 lost for three months and I start getting better

after three months, but still there is – there’s no memory of first year of the accident at all.  I don’t have any memory.  I don’t remember anything.

Approximately after one year of – from the

25 accident.

Now, I’ve been suffering since from the accident, and you already have these MRI reports.  These are my evidence that’s where my um damage is.  One of them is brain MRI.  It show, it shows the first one, there are three first, white matter, right great then left.  So…

THE COURT:  All right.  Let’s just be clear.  You’ve given us three of these reports.  I just want to be sure the jury knows which one you’re talking about.  So has it got a date or something   5 on it that would tell us which one you’re talking

about?

  1. The brain one, MRI brain, it says St. Joseph’s Health Centre, Toronto page 005.

THE COURT:  Is this the one that says towards the

10 top “Requested by Dr. Marek J. Gawel and has 1:37

a.m. head?”

  1. That’s right.

THE COURT:  All right.  Do each of you have that one.  In my particular section, it’s the one at the 15 top.  All right.  You go ahead, Mr. Sahinbay.

  1. Okay.  This is Professor Gawel.  Professor Gawel is a neurologist.  He’s the one who – who has been taking care of me.  So Professor Gawel send me to MRI and at the end I got this result, and he

20 explained me that this – this is there are three,

four small white spots front of my brain.  So I ask him if it is fixable?  He said, no, it’s not fixable, it is permanent damage.  So…

  1. DRIMER:  Your Honour, I’m sorry, I have to

25 object to that.  It’s something that was told to

him by an expert neurologist who could have been here to give evidence.

THE COURT:  Okay.  I’m going to have to take a step back and talk to you about a different kind of evidence, which is something you’re going to learn about as we proceed further into the trial.  We give experts, people whose expertise in a particular area, a very special privilege in our law in the giving of evidence.  Most people when they come here are restricted to giving evidence as to the facts.  People who are qualified as experts

5 we allow to give evidence which is opinion

evidence.  Now, we do that because we accept that there are things which people with this kind of specialized knowledge can know that the rest of us can’t know and that we need that help in deciding a

10 variety of issues that may come up in a courtroom.  One of the most common expertise that we look to is medical expertise.  That wouldn’t, I suspect, surprise any of you.  So you’re going to discover, when the first of the doctors comes, that the first

15 bit of evidence that’s led, I expect, from Mr.

Drimer will be evidence as to the expertise, experience, educational background, work experience of the doctor and Mr. Drimer is going to ask me to recognize that he’s an expert in a particular area

20 so that the Court will afford him that privilege to

give opinion evidence.

So the problem with what has just happened is that

Mr. Sahinbay has now told you what a doctor has

25 told him, but that evidence is in effect an

opinion.  It’s medical opinion and that’s a little different than something your wife told you happened or something that people told you happened in the car accident.  That is a problem because Mr. Drimer can’t cross-examine that doctor as to the basis of his opinion and so we can’t really look to this in quite the same way.  Nonetheless, Mr.

Drimer, again because of the unusual circumstance that we’re in, I’m going to allow the evidence because I don’t want Mr. Sahinbay to be handicapped but, when we come to my address, I’m going to talk

5 to them specifically about expert evidence again

and repeat what I’ve just said to address this problem, understanding that the jury will understand what I have said and take that into account when they weigh this evidence.  I think

10 it’s the better, fair, more appropriate way to deal

with it in this situation.  So I hope I’ve explained that to you and I hope you understand that what I’m really doing now is creating another little job for you do when we come to consider this 15 evidence, which is you’ll have to think about what Mr. Sahinbay has said, understand that it is the opinion of a doctor and think about the handicap Mr. Drimer’s at because we’ll never be able to know what the doctor would have said if questioned on it 20 and to take that into account when you consider how

important this is in your decision.  All right?

All right, Mr. Sahinbay do you understand?

A:  Yes, I do.

THE COURT:  All right, so again, I’m going to allow

25 to give this evidence, but I do want you to

understand that there are, as I’ve said there would be – there are some problems associated with this that we’re going to have to deal with as we proceed.

  1. I understand.  Thank you, Your Honour.

THE COURT:  Okay.  Way you go.

  1. Okay.  Can I recount the impression side at the bottom of the page, the last paragraph?  It says there are three hyphen four tiny of increased signal in the frontal periventricular white matter,

5 right greater than left…

COURT REPORTER:  Sorry, Your Honour, can I… A.  I’m sorry.

THE COURT:  Yes.  You’re going to – we’re now into something that’s quite technical, so you’re going

10 to have to read this very slowly…

  1. Sure.

THE COURT:  …or the reporter won’t get it.  Just show me, where were you reading from? A.  From the last paragraph.

15 THE COURT:  There are three hyphen four?

  1. Yes, three…

THE COURT:  Why don’t I read it, just because I’ve got the microphone right next to me and I can do it a little bit more slow in a way that I know that

20 she will understand me.  You follow along with me

and let me see if I’m reading this correctly.  Okay?

“There are three-four tiny non-specific foci of

25 increased signal in the frontal periventricular

white matter right greater than left, which are likely of little clinical significance.  There is no evidence of acute or chronic intra or extraaxial hemorrhage or brain contusion.”

Madam Reporter, I’ll give you this later.  Okay?

Did I read that correctly, Mr… A.  Yes, Your Honour.

THE COURT:  Is that what you wanted read? A.  Yes.

THE COURT:  All right, okay.

  1. So little clinical significance.  This part is

5 important because this part shows that the damage

is – is damage, like the injuries.  This part shows that…

THE COURT:  You know, I think you’re going to have to be careful about this.  I think you’re going to

10 have leave this to the jury to read for themselves. A.  No problem.

THE COURT:  We are going to have a doctor come later.  I don’t know whether it’s Mr. Drimer’s intention to put this to him to explain this, but I 15 think we can cross the line here.  You’ve put it to

them. They can read it.  They have as much ability to understand what this says as you do, no more, no less, I would assume.  So I don’t think that putting your interpretation on what is really a

20 matter of expertise is very helpful here.  You got

the evidence in by reading it to them.  I think that’s as far as you can reasonably go.

  1. Sure.  Thank you, sir.  Um because of this, Dr. Gawel decided to send me another scan, which is

25 SPECT scan.  They’re called SPECT scan.  SPECT scan

is – I would like to explain you.  It’s just injection, they inject you with a blue, a blue liquid on your body and they are watching if the blue flow with the blood on the – the part of the damage, damaged part.  So this is what the SPECT scan means.  If there is no injuries there is no

SPECT scan.  So it comes by – after, after – after

the injuries.  So that SPECT scan shows that there is injury.  So however, the SPECT scan, thanks God, came clear so…

  1. DRIMER:  Excuse me, Your Honour.  I don’t have

5 a copy of the SPECT scan that Mr. Sahinbay is

referring to.  I don’t know if the jury does either?

THE COURT:  Is that one of these three reports? A.  No, SPECT scan is – is different.

10 THE COURT:  Okay.  Well, do you have a copy of it? A.  Yes, I do have.

THE COURT:  Have you seen this before, Mr. Drimer? MR. DRIMER:  If it’s in Mr. Sahinbay’s exhibit book then I would have seen it.

15 A.  Yes.

THE COURT:  Well, let me just say this.  If I’ve understood Mr. Sahinbay correctly, he said that the scan was taken and that it was clear, meaning it didn’t show anything.

20 A.  Yes.

THE COURT:  If that’s the case, do we need anything more?  I mean, what he’s really saying is that whatever injuries he’s asserting or alleging were caused by this accident, the SPECT scan didn’t show 25 anything because it was clear.  Is that right?

  1. Yes, that’s right.

THE COURT:  Do you need anything more than that? MR. DRIMER:  No, that’s fine, Your Honour thank you. THE COURT:  All right.  So I think what this is, in effect, is part of the narrative, part of the history, part of Mr. Sahinbay’s explanation of what happened to him, but it’s not something that contributes to their being an injury because it didn’t show anything.

  1. DRIMER:  Thank you.

5 THE COURT:  Have I got that right?

  1. That’s right.

THE COURT:  Okay.  So I think we’ll just leave that and not press the matter any further. A.  Sure.

10 THE COURT:  Okay.

  1. Okay, so I would like to come to the result of this MRI, how it is affecting me since the accident.  First of all, I have problem on my left side, left full of my body.  It starts from the

15 head to the – to the – my left shoulder all the way

going down there’s numbness.  Numbness on my face, the left side.  I have double vision issue.  I’ve seen the doctor for that.  Because of this I have balance problem.  I cannot manage the edge of the

20 curbs, so mostly I’m hitting the curbs because I

cannot manage how high it is.  This is – this is all about the balance.  I cannot balance.  The other problem is mostly when I’m going down stairs, so this is – this is the dangerous spot because I

25 fall.  I fell down once because of this – this

issue.  So the balance and this one gives me headache.  It became chronic now.  I’m just keeping – keep taking pills for this.

And my brain stops sometimes, I forgot what to say.  If there’s new stuff, I have to read over two, three times, four times, five times to be able to understand.  This affects my concentration and focus also.  My left ear is hearing less.

I have taste problem.  I cannot taste like before

5 the accident.  I cannot taste the food very well.  There’s always some weird taste in my mouth, sour taste.  It’s like a medicine taste.  So that’s why it affects my taste ability.  Smells reduced.  Smelling is reduced, so I cannot smell properly.

10 Like, I can’t smell.  It has been reduced, so.

Also, the insurance doctor – I was going to talk about the insurance brain doctor told me that it might be because of this injury.  I might have –

15 they call it a syndrome.  What syndrome is called,

now I forgot the name?  Okay.  It doesn’t matter.  So yes, these are – these are what I, I, I remember so far.  Because of this injury, head injury and brain injury, these are where I’m suffering from.

20 Here I would like to come to Dr. Prutis-Misterska, Krystyna.  She is Ph.D. also.

THE COURT:  And what’s the piece of paper you’re looking at or relying on?

  1. The last page is disc bulge L4, L5.  The last

25 of the page it says, “Source of disc L4, L5.”

THE COURT:  This is the page, of the ones that we’ve given you, members of the jury, which has at the top St. Joseph’s Health Centre Diagnostic Imaging Consultation.  Right? A.  Yes, that’s right.

THE COURT:  Okay.  Do you each have that?  All right.

  1. This is – this is for my lower back.  Unfortunately, I have problem on my lower back.  I was offered to get injection for this and I refused it because it’s a – there’s a risk especially if it

5 it’s back, so that’s why I refused to get that

injection.  And this shows and proves that I have lower back damage and it gives me a really hard time.  Sometimes I cannot sleep because of this.  It gives pain on my legs.  I sit long, I stand

10 long, I walk long it bother me.  It gives me pain.  So this is how it is affecting me.  And also, because of this, sometimes I cannot stand from the bed in the morning.  I cannot get up because of this pain.  It happens.

15

Come to the other one.  This is for my left shoulder.  It is mild supra – at the last page, last bottom of the page, Impression:  “Impression, no evidence of rotator – rotator cuff tear.  There 20 is mild supra and intraspinatus tendinopathy.”

THE COURT:  Sorry.  Where are you reading from?  I apologize?

  1. The last here…

THE COURT:  All right.  Members of the jury, so

25 just we’re clear, I don’t know if you were

following or if you lost your place as I did, it’s the word “impression” on the second page of this document.  Can I just repeat it, Mr. Sahinbay, to make sure I’ve got the right part?  “No evidence of rotator cuff tear.  There is mild supra and intraspinatus tendinopathy.”  Have I got that right?

  1. That’s right.

THE COURT:  That’s what you were reading? A.  Yes.

THE COURT:  Okay.

5 A.  This one is all about my left shoulder.  Because of the impact there is swelling inside – the impact, because of the accident.  So that’s what Dr. Prutis told me and she gave me three injections, cortisone.  Ah it worked for a week.

10 The pain came back.  Then she – she told me to –

there’s nothing much that I could – she could do.  She told me that I had to go to pain management, pain clinic, pain management clinic or something like that.  So that’s what she told me and this one

15 stays with me also, so I’m – I’m suffering because

of this on my left shoulder.  Sometimes I can’t sleep because of this left shoulder issue because there’s so much pain comes.  When it comes, it bothers me and it wakes me up too.

20

And the last page is again Dr. Prutis.  This is xray, x-ray of my right foot of the ankle. THE COURT:  Mr. Sahinbay, I’m going to interrupt you again.

25 A.  Yes.

THE COURT:  …I’m doing this because if anybody ever wants a transcription of this and wants to read it, they’ll need to know what we’re talking about and just this – when you refer to this page or the last page, it doesn’t necessarily identify for the reader what we’re talking about.  So I’m just going to say this is the page, if I understand it correctly, which is headed Northwest Imaging Associates.  Have I got that right? A.  That’s right.

THE COURT:  Okay you go ahead then.

5 A.  “Right ankle, there is a small bony density

adjacent to the tail is laterally.  In the absence of soft tissue swelling in the area, this is most likely due to old trauma.”  This one three – two, three years after the accident I, I had this x-ray.

10 “A separated bony density at the tip of the medial

malleolus which could also be due to old trauma.  So there are no active fractures could be seen at the ankle, so no other significant abnormalities.”  There’s no fractures, but this ankle I have an

15 issue with this ankle.  As you see, it’s – there is

a problem there.  And I don’t know if – if I need surgery for this or not.  Probably surgery doesn’t have – surgery doesn’t have because Dr. Prutis didn’t send me any – any hospital to get the

20 surgery for this issue.  And I’m carrying this,

like the other ones with all my life.  These are – these are, it looks like, permanent damage and I have to live with them.  That’s what it looks like.

I didn’t get a cure so far after four years, four

25 and a half years.

So this is all I want to say.  Um thanks for listening, and these are the evidence that I’ve got.  These are MRI reports and unfortunately, I cannot call or I couldn’t call any doctors because I’m not familiar with the Court.  I don’t know how to invite the – how to call the doctor to the Court here to, to testify.  So that’s why…

  1. DRIMER:  Your Honour.  Sorry, Your Honour.

THE COURT:  Well, you know what, I think, Mr.

5 Sahinbay, this – it’s okay, Mr. Drimer.  I don’t

think that it’s appropriate for you to be explaining to the jury about why people aren’t here, are here.  I believe the record would show that you have been given – it has been explained to 10 you what’s generally expected here.

ARIF SAHINBAY:  Yes.

THE COURT:  It has been explained to you that it would have been better if these doctors were here and you’ve been given some opportunity to bring

15 them here, if you wanted to.  You’ve made some

decisions about how to proceed.  That having happened, I don’t think you can now start trying to excuse that.  You’ve had your options.  You decided to proceed.  We’re going to deal with this matter

20 as it now comes to the jury and not speculate about

how it might have happened in some other – do you understand?

ARIF SAHINBAY:  Sure.  No problem.  Thank you very much.  Sorry.  Sorry about that.  Okay.  This is

25 all I can say.  Thank you very much.  I appreciate

  1. THE COURT:  You stay.  Mr. Drimer is going to ask you some questions.A.  Oh sorry.

THE COURT:  I know you know about cross-examination because you mentioned it to me.

ARIF SAHINBAY:  Right yes.

THE COURT:  Mr. Drimer, so just so we can have some idea and I need to think about the jury having a break and that sort of stuff.  So how long do you think you’re going to be?

5 MR. DRIMER:  I’m anticipating about half an hour, Your Honour.

THE COURT:  Well, then let’s proceed.

  1. DRIMER:  Thank you.

10

CROSSEXAMINATION BY MR. DRIMER: 

  1. Mr. Sahinbay, I understand that you started having the symptoms of depression around the time that your first child was born in February or March

15 of 2007, is that correct?

  1. End of 2006.
  2. The end of 2006?  And was your family doctor at the time Dr. Mazzotta that you saw for the initial symptoms?

20 A.  Yes.

  1. And when you saw Dr. Mazzotta in February of 2007, did you tell Dr. Mazzotta that you had a 15 year history of anger, anxiety and depression? A.  No.

25 Q.  Did you report to Dr. Mazzotta at that time

that you had episodes of physical and verbal aggression and thoughts of harming others? A.  No.

  1. Did you report to Dr. Mazzotta at that time of 30 having reduced concentration and appetite?
  2. No.
  3. Okay did you report to Dr. Mazzotta at that time of having suicidal thoughts? A.  No.
  4. Did Dr. Mazzotta provide you with any

5 strategies or advice on how to best reduce your

stress and anxiety at that time?

  1. Ah yes he pres – he gave me prescription, ah the pills.
  2. Did he discuss with you a referral for anger

10 management counselling?

  1. Ah not until – not until ah the incident happened at the border.  Then I told – I – I told him the situation.  Then he decided to send me to a specialist, a psychiatrist.

15 Q.  Now, at some point before the accident you’ve

already indicated you started to take medication for depression?

  1. That’s right.
  2. And do you recall when it was that you started

20 taking that medication?

  1. I am not sure, but I was working that time.
  2. Okay.
  3. I was keep – I, I was still driving truck.
  4. And do you recall how many different types of

25 medication was prescribed to you?

  1. I really don’t remember.
  2. Okay and the medication was prescribed to for depression specifically.  Did it make you drowsy or affect your concentration or your reflexes at all? A.  No.  No, it didn’t.
  3. Did the medication that you were taking prevent you from driving a truck?
  4. No, not that one.  I mean, yes, well, some – somehow.  Like, sometimes it affects, but usually I was taking these pills before I, I sleep so it doesn’t bother me daytime while I – I’m driving.

5 Q.  Okay now, I understand that with respect to

this incident at the Manitoba and North Dakota border, that that occurred in Jan – sorry July of 2007, is that correct? A.  I guess so.

10 Q.  Okay.  And you were interrogated by a U.S.

Border Patrol officer? A.  That’s right.

  1. And you were put into a cell for two and a half hours?

15 A.  Approximately.

  1. And your entry pass was taken away?
  2. Yes, taken away.
  3. Okay as a result of that experience, were you upset?

20 A.  I was sad.

  1. Sad.  You were humiliated by that experience?
  2. At the beginning, yes.
  3. And you started…

THE COURT:  I’m sorry.  I’m sorry.  Say that again?

25 A.  At the beginning, yes I was feeling that.

  1. DRIMER:  Q.  And you started to avoid crossing the U.S. border after that incident?
  2. No.  I kept crossing border about two, three more times, maybe four.
  3. After that – we’ll call it the border incident.  After the border incident, did you start to develop post-traumatic stress symptoms? A.  No.

5 Q.  So you – after the border incident, you did not

develop a significant sleeping difficulty? A.  No.

  1. You did not develop increased anger and irritability?

10 A.  Not because of that border issue.  Not because

of that border.

  1. Suspiciousness and hyper-vigilance, especially with authority figures? A.  No.

15 Q.  And you stopped working altogether as a truck

driver in November of 2007, is that correct? A.  I think so.  I’m not sure.

  1. Okay, now, at some point your family doctor, you already indicated, referred you to a

20 psychiatrist, correct?

  1. That’s right.
  2. My understanding is that it was um Dr. Mazzotta who referred you to the St. Joseph’s Health Centre’s Mental Health program for a psychiatric 25 consultation in February of 2008, correct?
  3. Yes.  I guess so, yeah.
  4. Okay.

THE COURT:  In February, did you say?

  1. DRIMER:  February of 2008.  Q.  Now at the time of that, that psychiatric assessment in February of 2008, I understand that you saw a Dr. Dimou, D-I-MO-U, is that correct?
  2. Dimou is – he’sa – he wasn’t psychiatrist.  He was just a psychologist.

5 Q.  Okay.  But he was present during that initial

assessment with you?

  1. A couple of times.
  2. And at the time of the initial psychiatric assessment in February of 2008 were you complaining

10 of poor sleep?

  1. Because of depression, yes.
  2. Were you complaining of a lack of interest in things?
  3. Yes, that’s right.

15 Q.  Low self-esteem?

  1. Yes.
  2. Feelings of guilt?
  3. No.
  4. Lack of energy?

20 A.  Yes.

  1. Irritability?
  2. Yes.
  3. And fluctuating mood?
  4. What does it mean?

25 Q.  You would have high moods, low moods?

  1. Oh, yes.
  2. Mood swings.  You had a second psychiatric evaluation or assessment, this time with a Dr.

Siva-Subramaniam? A.  Yes.

  1. S-I-V-A S-U-B-R-A-M-A-N-I-A-M.

THE COURT:  You’re going to have to do that one again.

  1. DRIMER:  Sorry, Your Honour. S-I-V-A S-U-B-RA…

5 THE COURT:  Sorry, B as in Bob?

  1. DRIMER:  B as in Bob.

THE COURT:  S-U-B? MR. DRIMER:  S-U-B-R-A-M-A-N, like Norman, -I-A-M, like Michael.  Q.  Now at the time of the

10 psychiatric evaluation with Dr. Siva Subramaniam in April of 2008, were you still complaining of poor energy?

  1. Yes.
  2. And were you still complaining of having 15 problems with focus and concentration?
  3. Yes.
  4. Were you concerned at that time, so April of 2008 that you could become enraged and lash out physically at others?

20 A.  No.

  1. Did Dr. Siva Subramaniam tell you in April of

2008 that you might be predisposed to the development of major depression by virtue of your family history?

25 A.  My family history?

  1. Yes did Dr. Siva Subramaniam tell you that because of your family history of excessive alcohol use by your father, that you might be predisposed to the development of major depression? A.  I don’t remember.
  2. You went back to see Dr. Mazzotta, your family doctor, in May of 2008?
  3. Probably.
  4. At that time do you recall still reporting having significant anger issues?
  5. Ah because of depression, yes.

5 Q.  Including preferring to fight someone to

resolve conflicts, as is done in your country. A.  No.  No.

  1. Did you tell…

THE COURT:  Can you read that one again?

10 MR. DRIMER:  Yes.  “Preferring to fight someone to

resolve conflicts as is done in your country.” A.  No.

  1. DRIMER:  Q.  Did you tell Dr. Mazzotta in May

15 of 2008 that the legal system in Canada is not the

best way to resolve conflicts? A.  No.

  1. You went back to see Dr. Mazzotta in October of

2008 and at that time did you report to Dr.

20 Mazzotta feeling agitated, easily angered and

impulsive?

  1. I don’t remember.
  2. Did you report having difficulty concentrating and staying in one place?

25 A.  Ah probably.

  1. Again, we’re October of 2008 now.
  2. I don’t remember yeah so.
  3. Now, we’re in December of 2008.  You go back for another consultation with Dr. Siva Subramaniam.

THE COURT:  Sorry, what month are we in?

  1. DRIMER:  We’re at December of 2008, Your Honour.

THE COURT:  Thank you.

  1. DRIMER: Q.  At that time, did you report to Dr.

Siva Subramaniam the psychiatrist, that you

5 continued to struggle with a depressed and

irritable mood and anger? A.  Yes.

  1. Did you report to him that you were concerned that you may strike out when in conflict?

10 A.  I don’t remember.

  1. Did you report having disturbed sleep, diminished energy and impaired concentration? A.  Probably, but I don’t remember.
  2. Now, in the three to six months before the

15 accident happened in April of 2010, did you feel

that your depression was getting better, was it getting worse or was it staying about the same? A.  My depression was getting better.

  1. And you reported that to your doctors?

20 A.  Yes and I told him that I was going to start

working.

  1. Did you – do you recall seeing Dr. Siva

Subramaniam on March 22nd, 2010 for another psychiatric assessment?

25 A.  Probably.

  1. Okay that’s 18 days before this car accident.
  2. Okay.
  3. Right.  Now at that visit, did you report to

Dr. Siva Subramaniam that you were having continued irritability and episodes of depression that would plague you for up to four days in a row? A.  Ah I don’t remember.

  1. Okay.  At that assessment with Dr. Siva

Subramaniam, again we’re 18 days before the car accident, did Dr. Siva Subramaniam double your dosage of the anti-depressant medication Prozac

5 from 20 milligrams to 40 milligrams daily? A.  That I don’t remember either.

  1. You continued taking your prescription medication for depression up to the time of the car accident, correct?

10 A.  Yes, I was.

  1. On a daily basis?
  2. Daily basis, yes.
  3. And you continue to take these medications currently?

15 A.  Yes.

  1. Was there ever a period of time from when you first started taking this prescription medication that you have stopped altogether taking the depression medication?

20 A.  I don’t understand?

  1. From when you first started taking the medication for depression in 2006 or 2007, was there a period of time up to present that you stopped altogether taking the medication for

25 depression?

  1. No, I haven’t stopped but it – it has been changed, the medication has been changed.  He has tried many – many of the different ones.
  2. Now, you indicated that you started looking for work to get back to work before the car accident, correct? A.  Yes.
  3. Okay and um if you felt – you felt presumably that you were – you had the ability to resume driving a truck at that time before the car accident happened?

5 A.  Yes.  Even when I was depressed, I was still

working so the reason that I, I stopped working to get treatment.  Otherwise, the depression is affecting me, but not that much.

  1. Now, the fact of the matter is you didn’t start

10 looking for work and didn’t start working before

this car accident because you were still undergoing treatment for your depression and you were still taking medication.  Isn’t that actually the case?

  1. I was – season starts on end of the April,

15 April, March, the season for the paving and this

type of construction work, so I didn’t have a chance to start working because of the accident.

  1. Okay.  But the question is not that you didn’t start working necessarily, but you didn’t even 20 start looking for work before the car accident

because you were still undergoing treatment for your depression, isn’t that correct? A.  No, it’s not correct.

  1. DRIMER:  Okay Your Honour, I’d like to refer to

25 the evidence given by Mr. Sahinbay at his

examination for discovery at this time.

THE COURT:  Just a minute.  Just a minute.

  1. DRIMER:  I’ve made copies of the transcripts. THE COURT:  Just give me a second please? First of all, you have the copies?
  2. DRIMER:  I do.

THE COURT:  All right.  Just before you do this, I think I need to explain to the jury and to Mr. Sahinbay what’s about to happen.  Many years ago, people would come to trial without really knowing

5 what was going to happen.  They were surprised.  We

used to refer to trial by ambush.  We don’t like that.  We don’t think that it’s the best way to get the proper and legal result and so over the years we’ve developed a means by which information is

10 exchanged prior to trial so that people are not

surprised by the case they have to meet, so that people can properly prepare to bring forward whatever evidence they need to respond, whatever arguments will give their position the strongest

15 they can.  One of the things we do is that we call

for parties to be – the terminology is examined for discovery.  Each party goes to what’s called a special examiner.  It’s not a courtroom.  A special examiner gives them an oath or asks them to affirm

20 to tell the truth, so what they say is given under

oath as it would be in Court, and a lawyer on the other side asks questions that are relevant to the case to find out what the case is and what the evidence is.

25

The importance of what’s now about to happen is that when somebody says something at their examination for discovery and is asked the same question at trial, we look and we expect the answer to be the same.  If it isn’t, then we need to know why it isn’t.  So I’m not exactly sure what’s going to happen, because I don’t know what the transcripts say but I’m guessing that Mr. Drimer is going to read something from it and ask Mr. Sahinbay to comment on it in relation to what he has just said.  Have I got this more or less right?

5 MR. DRIMER:  Correct Your Honour.

THE COURT:  And it’s Mr. Sahinbay’s chance to explain, assuming for the moment and I am assuming because I don’t know, that he said something different then that he is now to explain what that

10 difference is.  We will have to consider that as

part of his evidence here, part of both what he said then, what he said now is in evidence and his explanation is in evidence and you’ll have to piece together what you accept and what you believe and

15 what you understand to represent the truth.  Do you

understand, Mr. Sahinbay? A.  Yes, I do.

THE COURT:  That’s fine.  So why don’t you give him the transcript and let’s – you’re going to hear, I

20 expect, from Mr. Drimer some pro forma questions

that are asked to establish the background to all of this, the things that I’ve just said to you to this point to make sure.  I think you should maybe explain Mr. Drimer, why some of this has been

25 redacted.  I’m not quite sure I’ve seen it this way

before?

  1. DRIMER:  Yes, there are various portions of the transcripts that on different issues that were canvassed at Mr. Sahinbay’s examination for discovery that I may or may not want to rely on for this trial.  The one portion that I am relying on is with respect to the issue of his ability to work and his attempts to look for work prior to the motor vehicle accident occurring.  The portions that are blacked out or redacted, do not have – are not touching on that issue.  I will take you to the  5 pages and the references that refer specifically to

that issue.  I just don’t want to introduce different areas of evidence that are not on point at this time.

THE COURT:  All right.  Do you understand, Mr.

10 Sahinbay?

  1. Yes, I do.

THE COURT:  Well, the issue that we’re addressing here, I gather, is your willingness, desire, whatever it is that you did with respect to the

15 question of returning to work in and about the time

of the accident.  Okay Mr. Drimer.

  1. DRIMER:  Thank you, Your Honour.  Q.  So Mr.

Sahinbay, you attended on March 30th of 2012 at the

20 office of an official examiner with a lawyer to

answer questions under oath at what we call an examination for discovery.  Do you recall that? A.  Yes, I do.

  1. Okay.  And I’m going to be reading into

25 evidence now some of the questions and answers that

were asked of you and that you gave back in March of 2012 and I’ve made copies of those portions of the transcript for His Honour and for the jury as well.

  1. Okay.
  2. I’d like to take you to page 29 and it’s question 171 of the transcript.  Do you have that, sir?
  3. One seven one, yes.

5 Q.  Yes.  Thank you.  So the question reads, “Okay.

Do you remember why you stopped working?”  Answer,

“Yes, on my own volition I quit working.”

Question, “Well, why would you do that?”  Answer,

“I had depression treatment and with that sort of 10 treatment, it is not safe.  It’s rather dangerous

to drive because this treatment medication was affecting my reflexes so for that reason.”  Now I take you to page 34 of the transcript.

THE COURT:  Well, just a second.  The convention is

15 were you asked those questions?  Do you recall

being asked that question?  The one that Mr. Drimer just read to you?

  1. There is not – no – not much difference that I see here.

20 THE COURT:  Well, just a second.  That’s a judgment

somebody will make.  But right for the moment, do you recall being asked that question and giving that answer? A.  In 2012?

25 THE COURT:  Yes.

  1. No, I don’t.

THE COURT:  Do you recall that – Mr. Drimer, I’m going to pick it up just to see if we can – do you recall that on that day you were asked to swear to tell the truth?

  1. Yes, I do – I do remember.

THE COURT:  All right.  And do you have any reason to believe that the person who took down what you said would take it down or took it down in any way that does not fairly represent what you said at

5 that time?

  1. I don’t think so.

THE COURT:  All right.  Okay, Mr. Drimer.

  1. DRIMER:  Thank you, Your Honour.  Q.  If I can

10 take you to page 34, question 200, please.  Do you

have that, sir? A.  Yes.

  1. The question reads, “Okay.  This is during the whole time that you’re depressed and you can’t

15 work?”  Answer, “Yes.”  Question, “Well, why can’t

you work then?”  Answer, “When I was in depression I was working for a while, then I tried again to work, but the stress was overwhelming me.  It was too much.  I couldn’t go on.”  Question, “The

20 stress of what, of working?”  Answer, “It was the

negative effect of this depression.  I was taking medication.  This medication was dozing me off.  I felt dozy and also affecting my reflexes, affecting my concentration.  Therefore, it created a

25 dangerous condition for me to work or continue to

work.  I didn’t want to kill anybody on the road.”  Answer, “Do you recall being asked those questions”?

  1. Yes, I – now I remember, yes.
  2. Okay and you gave those answers?
  3. Yes, I did.
  4. Thank you.  Page 38, question 213, please.  Do you have that, sir? A.  Yes.
  5. Question, “So let’s be clear.  After you

5 stopped driving a truck, did you try and find any

other type of job?”  Answer, “No, because I was under the treatment.”  Do you recall being asked that question?

  1. I don’t, but this is right now, sir.

10 Q.  Thank you.  And then page 41, question 221.  Question, “Okay.  Can you explain to me why you didn’t look for any other type of employment during that time?”  Answer, “Because I was still under the treatment, going through a treatment and also

15 taking medications and also that again getting a

job would worsen my condition again.”  Question, “So just so I understand it, are you saying that you couldn’t work because you were taking medication for your depression and the side effects

20 of the medication?”  Answer, “This is only one of

them.  There are also other aspects of this depression.”  Do you recall giving that evidence, sir, at the examination for discovery?

  1. No, I don’t recall but this is the right

25 answer.

  1. Thank you.  Page 43, question 224 please.  Question, “Okay.  So my question is this.  Would the side effects alone, the drowsiness that this medication caused – would that alone prevent him from doing any work?  We know that it would prevent him from driving a truck.  My question is, would it prevent him from doing any type of work?”  Answer, “When you are in depression and depressed, you normally need to establish good rapport with your co-workers, with people so I was not capable of doing that so I didn’t want to harm anybody.”  Do

5 you recall giving that evidence, sir?

  1. No, I don’t remember, but this is the right answer, yes.
  2. Thank you.  And the last one is page 49, question 248.  Question, “But you wouldn’t be able

10 to drive a truck as long as you were on the

medication, right?”  Answer, “It was only the effect or side effects of this medication, but it was the reflex problem along with coordination problem and the stress of the job and I wanted to 15 quit this job because of my own willingness or my

own volition.”  Again, sir, do you recall giving that answer at the examination for discovery? A.  No, I don’t recall, but this is the right answer again.

20 Q.  Thank you.

THE COURT:  I’m sorry, Mr. Drimer, what page was that on, the last one? MR. DRIMER:  That was… A.  Page 49.

25 MR. DRIMER:  …page 49, question 248 Your Honour.   THE COURT:  You know what the problem is?  I don’t have page 49.  I go from page 45 to 56.  Does anybody else have that problem?  No.  Okay.  Apparently I have the only copy that has got that problem.

  1. DRIMER:  I apologize, Your Honour.  I can give you another copy of it.

THE COURT:  All right and what question was it?

Sorry, I just want to get this right. MR. DRIMER:  The one isn’t – doesn’t have any markings on it.

5 THE COURT:  At all?

  1. DRIMER:  Sorry, question 248.

THE COURT:  Okay.

  1. DRIMER:  Thank you.

THE COURT:  All right.  Okay, Mr. Drimer, go ahead.

10

  1. DRIMER: Thank you.  Q.  Sir, were you able to drive a car before the accident while you were on your medication for depression?  A.  Yes, I was.

15 Q.  And did you, in fact, use your car to take any

lengthy road trips before the car accident? A.  These are finished?

  1. Pardon?  Yes.
  2. Oh, okay.  What was the question?

20 Q.  Did you drive your car on any lengthy road

trips prior to the car accident when you were taking your medication for depression? A.  Yes, I was.

  1. Okay.  Where did you go?

25 A.  New York City.

  1. When was that?
  2. It was, I remember, before the accident.  That summer I guess before – what was that?  Like 2009 maybe – 2009 summertime.
  3. And notwithstanding the side effects of the medication that we’ve now heard about, the dizziness or sorry, the reflex issues, the drowsiness, you were able to drive a car for that distance? A.  Yes.
  4. Was anybody with you in the car?

5 A.  Yes.

  1. Who was with you?
  2. My wife and my children.
  3. Now sir, prior to the car accident you declared bankruptcy, correct?

10 A.  Ah because of not working, yes.  Because I

stopped working for a long time, so… Q.  And when was that?

  1. I don’t remember.
  2. And that caused increased stress in your life 15 at that time as well.  Would that be correct?
  3. No, because I had to – it wasn’t – it was maybe $10,000.00 or something, little amount, but I couldn’t afford to pay so – and I wasn’t working.

That’s why I had to declare bankruptcy.

20 Q.  Okay.  Were you an active member of the Turkish

community in Toronto prior to the car accident?

  1. No, I was very busy working so I had a couple of friends.  That’s it.
  2. How often did you see your friends prior to the

25 car accident?

  1. Prior to car accident, almost every day.
  2. Okay.  Do you recall telling your psychiatrist,

Dr. Siva Subramaniam, before the car accident that you had one friend that you saw once per month before the accident and that you actually spent most of your time on the computer or watching television?

  1. I might say that, but I don’t remember.  I – I had friends that I – I was seeing.
  2. Sir, were you able to contribute your share of the housekeeping, the chores around the house prior

5 to the car accident?

  1. Yes, I was helping my wife with everything else.
  2. Tell me, what sorts of things were you doing in the house?

10 A.  Yeah, I was taking care of the baby.  She was

little at that time.  Changing diapers, feeding, cooking, cleaning house.   Q.  How much?

  1. Almost equally I was sharing the house, of

15 course.

  1. How often were you doing the housekeeping chores prior to the car accident?
  2. Every day.  Every day work.  This is every day works.

20 Q.  Do you recall telling Dr. Siva Subramaniam

before the car accident that you did not feel like helping out with the household tasks?

  1. I don’t remember, but I might have because of the depression.

25 Q.  Earlier you told the jury that you applied for O.D.S.P.?

  1. Yes.
  2. Before the car accident?
  3. Before – long before the car accident.
  4. And O.D.S.P. is the Ontario Support Disability Program?
  5. That’s right.
  6. Okay and what is your understanding of what those benefits relate to?
  7. It was – it was my idea of my psychiatrist, so he told me that it’s better because the treatment

5 takes a little long.  These kind of treatment takes

a little long.  So I wasn’t – like, I was – I was going to get better, like until I get better I wasn’t thinking about get back to work.

  1. So you don’t recall when it was that you first

10 applied for O.D.S.P.?

  1. I don’t remember, but it was denied.  It was denied.  They denied me.
  2. And then it was appealed and then…
  3. I did appeal…

15 Q.  …and then the appeal was allowed?

  1. …and then they changed their minds, so they accept me.
  2. And your psychiatrist, Dr. Siva Subramanian, supported your application for O.D.S.P.?

20 A.  That’s right, yes.

  1. And the reason why he supported it is on the basis that you represented a risk to your coworkers and superiors given your irritability? A.  No.

25 Q.  Is that correct?

  1. No, not because of – I don’t even remember such a thing.
  2. Okay you, you received a letter from O.D.S.P. advising that you were approved for benefits in May of 2009.  Does that sound… A.  Probably.  Probably.
  3. And O.D.S.P., in the letter, indicated that you were determined to be a person with a disability and that you qualified for the benefits?
  4. Yes, because of depression, major depression

5 so.

  1. You don’t remember anything about the day of the motor vehicle accident, is that correct? A.  No, unfortunately I don’t.
  2. You don’t recall if any part of your body came

10 into contact with the inside of your vehicle in the

car accident, correct?

  1. I don’t understand?
  2. You don’t recall if any part of your body came into contact with the inside of the vehicle in the

15 accident?

  1. No, I don’t.
  2. Okay you don’t recall if you had any pain in your head or your face after the accident? A.  No, I don’t.  I was blacked out.

20 Q.  You don’t remember losing consciousness?

  1. No, I wasn’t unconscious.

THE COURT: I’m sorry.  Is that you were or you were not?

  1. No, I wasn’t unconscious.  That’s what they

25 said, so…

  1. DRIMER:  Q. Who’s they?
  2. My friends in the car with me.  That’s what they said, so they took me to hospital.  That’s what they said.
  3. Did you – have you been back to see Dr. Siva Subramaniam since the car accident?
  4. Yes.
  5. Okay do you recall when the first time was that you went to see him after the car accident?
  6. Before the car accident, my condition was

5 better because that’s why I was seeing him every

three months just to get the prescriptions.  So I didn’t need to see him often.  So probably those days after three months or four months later.

  1. Okay.  So my question was do you recall when it

10 was that you first went to see Dr. Siva Subramaniam

after the car accident?

  1. So before the car accident was March, right?

So put three months, then that time. Q.  Okay.

15 A.  Or four months yes.

  1. When you first saw Dr. Siva Subramaniam after the car accident, did you tell him that you were involved in a car accident? A.  I don’t remember that.

20 Q.  In fact, the first six times that you went to

see Dr. Siva Subramaniam following the accident you did not even mention that you had been involved in a car accident, isn’t that correct?

  1. It’s not correct.  Because six times means is

25 one and a half year.  Every three months – if I see

him every three months it’s impossible.

  1. Do you recall anything that any of your doctors told you in the first three months after the accident?
  2. Anything?  I don’t…
  3. Anything that your doctors told you in the first three months after the accident.  Do you remember any of that? A.  No, nothing.

5 Q.  When was the last time that you saw Dr. Siva

Subramaniam, the most – most recently to present?

  1. Most recently…
  2. Yes.
  3. …is about maybe two months ago.  I don’t

10 remember exactly.

  1. Okay how many times so far this year?  Is it still every three months?
  2. No.  Since the accident I’m seeing him almost every month, sometimes every 15 days.  Because of

15 this accident he is just – he wants to be in more

control.

  1. And you have a new family doctor now, Dr.

Geleff, correct?

  1. Dr. Geleff, yes.  I had family doctor.

20 Q.  And you’ve been to see Dr. Geleff for your –

for you treatment following this car accident, correct?

  1. Yes.  At that time I didn’t have family doctor, so I start seeing him right after the car accident.

25 That’s what they told me and they took me there, my

friends.  That’s how it happened.  Otherwise it’s far from me, so I wouldn’t go that far.

  1. Aside from Dr. Geleff and Dr. Siva Subramaniam, is there anybody that’s currently giving you treatment for your injuries?
  2. What I – what I know, Dr. Sugar.  Dr. Sugar, a chiropractor.  Dr. Prutis.  I see Dr. Gawel, Professor Gawel.
  3. You’re still attending for chiropractic

5 treatments?

  1. It has been cut off by insurance company.  That’s what they told me.
  2. When did you last attend for chiropractic  treatments?

10 A.  I really don’t remember.

  1. Was it – have you received any treatments in the past two years.
  2. Only psychiatrist.
  3. Okay I’m asking specifically about the

15 chiropractic treatments.

  1. No.
  2. You’re still receiving O.D.S.P.?
  3. Yes, I am.
  4. How much do you receive in O.D.S.P. every

20 month?

  1. It’s $1,700.00.
  2. That’s the same amount that you were receiving in O.D.S.P. before the car accident, correct?  It hasn’t changed?

25 A.  It hasn’t changed.

  1. And you’re still getting O.D.S.P. because of your depression?
  2. No, now because of the, the brain injury because I wasn’t on O.D.S.P. for forever.  They didn’t approve me until 65, so – but now it has changed because of this car accident and everything is upside down.  Probably now they put me on permanently.
  3. Okay.  So was there a period of time after the car accident that your O.D.S.P. benefits stopped?

5 A.  Before the car accident?

  1. Before the car accident, did the O.D.S.P…
  2. No.
  3. …benefits stop at all?
  4. No.

10 Q.  Was there a period of time that they stopped

after the car accident? A.  No.

  1. So they’ve been continuous from the time that you first started receiving O.D.S.P. until present?

15 A.  Two years they supposed to review after they

approve me, but in that two years I get – I think I involved in the car accident, so reports already sent there by my doctor, Dr. Siva Subramaniam.

He’s the one who is contact with the O.D.S.P.

20 That’s what I know.

  1. Sir, have you been involved in any further car accidents since the April 2010 accident?
  2. That I really don’t remember.  I know I told you on discovery that I – I might be involved with 25 the car accident, but after that nobody knows that

and maybe I was confusing about this accident, imagination-like. I don’t know.  I really don’t know.  So if you have – I don’t know.  I couldn’t find.

  1. Okay.  In 2011, were you a passenger in a vehicle being driven by your friend Zuper, Z-U-P-E-

R, which rear-ended another vehicle?

  1. Two thousand and eleven?
  2. Yes.
  3. I don’t remember.
  4. Okay.  Do you recall if you were injured in a

5 car accident in 2011?

  1. No.
  2. No, you don’t remember?
  3. No, I don’t remember.
  4. Okay.  You don’t recall being taken by

10 ambulance to a hospital after an accident in 2011? A.  No, I don’t remember exactly.

  1. And you don’t recall having a discussion with your wife about a car accident in 2011? A.  No, I don’t remember.

15 Q.  Okay.  I’m going to have to refer you back to

the transcript of the examination for discovery now, if I could, and specifically page 87 and question 439.  Question, “Okay.  But have you been in any accidents?”  Answer, “I did not cause an

20 accident myself, but last year when I was sitting

in a car with Zuper, Zuper struck a car or was involved in an accident, but nothing happened to me.  I did not cause the accident myself.”  Sir, do you recall being asked that question…

25 A.  Yes, I – yes, I do…

  1. …and giving that answer?
  2. I do recall that.
  3. Nest question, “Okay.  Well, I’m just asking if you’ve been in any accidents or had any falls or anything like that, not whether you caused it.”

Answer, “Yes, there was one.”  Question, “Okay.”  Answer, “Zuper was dropping me off at my house.”  Question, “Okay.  Tell me what happened.”  Answer, “He rear-ended a vehicle.  He hit a big size or large size of Jeep vehicle, J-E-E-P, jeep.”  Then we’re now on page 88 at question 448, “When was

5 it?”  “I don’t remember when exactly it was, but it

was sometime last year, 2011.”  Question, “Did you go to the hospital?”  Answer, “I could not explain myself very much.  They took me, but I didn’t have any injuries.”  Question, “The ambulance took you

10 or…”  Answer, “There was an ambulance, big size,

large size of ambulance and they took me.  I didn’t want to go.  I was in fear because of the previous accident.  I was in shock.  I couldn’t speak.  They took me to the hospital.”  Question, “The ambulance 15 took you to the hospital?”  Answer, “Yes.”  Sir, do

you recall giving those answers at your examination for discovery?

  1. Yes.  Yes, I do recall but I couldn’t find later on any of this – related to this accident, I

20 couldn’t find anything and nobody knows it either,

so I will start blaming myself that maybe I imagine all this.

  1. Thank you, sir.
  2. DRIMER:  Thank you, Your Honour.  Those are my

25 questions in cross-examination.

THE COURT:  Okay.  Give me a second please.  So Mr. Sahinbay, in the normal course of things at this point if you had a lawyer, that lawyer might ask you some questions if he felt or she felt that it was necessary for you to clarify anything which Mr. Drimer raised in cross-examination.  So I want to be very clear before you say anything.  It’s not a time for you to repeat what you said before and it’s not a time for you to introduce any new evidence, but if there’s some question which Mr. Drimer asked you and you don’t feel that you’ve

5 been given an opportunity to fully answer or if

there’s some clarification you want to provide as to what you did say, then this is an opportunity for you to address those kinds of issues.  Okay? A.  Yes.

10 THE COURT:  Do you have anything to say?

  1. No, I don’t.  I don’t have anything to say. THE COURT:  All right.  Well, then your evidence so you can go back…
  2. Thank you very much.

15 THE COURT:  …and sit down at the lawyer’s chair.  So we’re going to take a 15 minute break and then we’re going to come back and we’re going to change now – you’re not going to call any more evidence, as I understand it, are you, Mr. Sahinbay?

20 ARIF SAHINBAY:  No, I’m not.

THE COURT:  All right.  Mr. Drimer, you’re ready to go with your first two witnesses?

  1. DRIMER:  Yes, Your Honour.

THE COURT:  So after we 15 minutes, we’ll come back 25 and we’ll proceed with the two witnesses that Mr. Drimer has available for us today and we’ll see how long that takes and I’ll discuss with you what I expect will happen after that.  All right okay.

… JURY RETIRES (11:35 a.m.)

THE COURT:  We’re going to do Mr. Da Silva first? MR. DRIMER:  It is – Dr. Wyndowe is here.  I don’t see Mr. Da Silva yet, but I’ll take a look outside Your Honour.

5 THE COURT:  All right.  Is it your plan, if he is

here, to do him first?

  1. DRIMER:  Yes.

THE COURT:  My recollection is you said about ten minutes or very brief?

10 MR. DRIMER:  Yes.

THE COURT:  Okay.  And then we’ll go to Dr… MR. DRIMER:  Wyndowe.

THE COURT:  …Wyndowe, and that you think – you said you’d be about an hour or so?

15 MR. DRIMER:  I expect so.  He has got to go through

some of the testing, so…

THE COURT:  I understand.

THE COURT:  Mr. Sahinbay you understand what’s going to happen now.  We’re going to hear either 20 from Dr. Wyndowe or from Mr. Da Silva, we’re not

sure.  Remember that if it’s Mr. Da Silva that really liability has been admitted.  I assume he’s coming because I assume there’s going to be some there’s going to be some discussion about how fast

25 you were going and how fast he was going at the

time.  So you should listen for that and consider what questions you want to ask.

ARIF SAHINBAY:  No problem.

THE COURT:  Then we’ll hear from the doctor and again you’ll have to listen carefully and ask whatever questions you have so long as they’re relevant to…

ARIF SAHINBAY:  No problem.

THE COURT:  …the accident and your injuries and what we’re doing here.  And when that’s over, we’ll have to see what time of day it is.  I’m going to   5 presume that it’s possible that we’ll finish this

before lunch, particularly if we sit a little bit later than the normal lunch break.  So if we get to 1:00 and it looks like this isn’t going to take very long, we might continue through until 1:15 or

10 1:20 just to allow the jury to have a full

afternoon off and not bring them back for ten minutes in the afternoon.  Do you understand, Mr.

Sahinbay?

ARIF SAHINBAY:  Yes, I do.

15 THE COURT:  All right and what we’ll do then is

just talk about what we’re going to do between when we finish and noon tomorrow.  You’re sure we can’t get her here this afternoon?

  1. DRIMER:  I will try again.  I will have my

20 office contact her.

THE COURT:  It looks to me like this afternoon would work and it really would make a tremendous difference.

  1. DRIMER:  She was quite adamant, but I’ll

25 certainly try again.

THE COURT:  You can blame it on me I’m happy that you do that.  All right?

  1. DRIMER:  Thank you, Your Honour. THE COURT:  All right.  So I’ll see you in 15 minutes.  Thanks.  We’ll make it – the way things are now, let’s say five to.  All right?
R E C E S S (11:37 a.m.)
…U P O N  R E S U M I N G          (12:00 p.m.)

5 THE COURT:  Just before we bring them in, Mr. Drimer I don’t think you referred to the opening pages of what you’ve given us here.  I think you started – didn’t you start at page 29?

  1. DRIMER:  I – I did, yes.  There are two other

10 topics that I didn’t need to read in.  I don’t

believe I’m going to need to refer to them. THE COURT:  Well, my problem is I don’t think we should leave those pages with the jury if they didn’t hear them because – do you understand what

15 I’m saying, Mr. Sahinbay?  It’s not appropriate for Mr. Drimer to leave with the jury any part of the transcript that he didn’t read to them because they may read it and draw some conclusion when it has not really been put in evidence by him.  So I think

20 what we should do is ask for those transcripts

back.  I think we should remove the pages that weren’t referred to and I think we should then hold it unless they want to see it because typically we wouldn’t leave the transcript with them anyway.

25 MR. DRIMER:  Absolutely.

THE COURT:  Okay do you understand what I’ve been saying?

ARIF SAHINBAY:  Yes, I do.

THE COURT:  Any problem?

ARIF SAHINBAY:  No, I’m – I’m in agree… THE COURT:  I beg your pardon?

ARIF SAHINBAY:  I’m agreeing.

THE COURT:  Okay.

  1. DRIMER:  They have their…

THE COURT:  Did you take them back?

COURT REGISTRAR:  Just the – there was only one

5 copy.

THE COURT:  I’m going to ask them to give them back when they come back.  We’ll deal with that.  Mr. Sahinbay, we’re going to deal with that when they come back.  The other things is, what’s happening

10 now?

  1. DRIMER:  So both Mr. Da Silva and Dr. Wyndowe are here, so we can bring in Mr. Da Silva first.

THE COURT:  And the other doctor, did you call her?

  1. DRIMER:  Dr. Liao, we left a message with her

15 office.  She was with a patient.

THE COURT:  So we’ll just proceed now and see where we are.  At one o’clock, I’m going to assume, Mr. Sahinbay that at one o’clock you will be crossexamining the doctor. Well maybe not.  If we are,

20 whoever’s up at one o’clock, I’m going to be asking

how much longer will they be and if it’s a short amount of time then we’ll continue on to either the end of the direct examination and then break for lunch or we’ll finish the cross-examination and

25 then break for the day or whatever, depending on

where we are with Dr. Liao.

  1. DRIMER:  Okay.

THE COURT:  Okay?

  1. DRIMER:  All right.

… JURY ENTERS (12:03 p.m.)

THE COURT:  Ladies and gentlemen, just before we start, I’m going to ask you, do you have those copies of the transcript with you?  I’d like to have them returned.  I’ll explain to why in a

5 moment.

JUROR:  It was on the seat, so…

THE COURT:  Of the transcript we’re talking about now.

JUROR:  Yeah, it was on the seat.

10 THE COURT:  Was there only one copy?

JUROR:  There was only one copy.

THE COURT:  Oh I see.  Okay.  I understand.  I’m sorry.  So I’m just going to say this to you.  We’ve taken that back for this reason.  Only those

15 parts of the transcript which have actually been

read to you are evidence and Mr. Drimer didn’t refer to every page that you were given and so we’ve taken it back to have him remove those pages but, more than that, Mr. Drimer has done something

20 fairly unusual by redacting.  It’s actually quite a

smart thing he has done, but typically that doesn’t happen because typically the read-ins are much longer and much more detailed.  So we don’t give the transcripts to the jury to hold on to because 25 we don’t want you reading what wasn’t read.

If you have questions about what was read to you in the course of your deliberations, you would ask those questions.  We would bring you back and they’d be re-read or described to you, depending on the circumstance.  So for the moment, Mr. Drimer is going to remove those pages so we have a copy ready if you want it, but we’re going to hold it back and see whether or not it becomes an issue during the course of the trial.  If it does, we’ll deal with exactly what to do at that time.  All right?

Okay.  So I understand from Mr. Drimer that he has

5 actually now both witnesses available.  First of

all, Mr. Da Silva, who will be quite short, I’m told?

  1. DRIMER:  Yes.

THE COURT:  And then the first of the two doctors.

10 So we’re going to deal with Mr. Da Silva and get to

the doctor.  We’ll just see how far we can get by your usual lunch and then decide what to do.  All right?

  1. DRIMER:  Thank you, Your Honour.  Thank you

15 again, Your Honour, and good morning or good

afternoon, ladies and gentlemen of the jury. THE COURT:  I forgot.  Are you going to make an opening statement now?

  1. DRIMER:  I am.

20 THE COURT:  I didn’t say anything about that.  I

forgot you hadn’t done it.  I apologize for that.

How long are you going to be with this?

  1. DRIMER:  Very brief, five, ten minutes.

THE COURT:  Okay.

25 MR. DRIMER:  Thank you.

OPENING STATEMENT BY MR. DRIMER:

  1. DRIMER:  Again, my name is Alan Drimer and I represent the defendants Da Silva in this matter.  You already heard from Mr. Sahinbay and you’ll recall, from when His Honour spoke to you yesterday, that we’re here today involving a case about a motor vehicle accident that occurred on April 9th of 2010 between two vehicles at the intersection of Dufferin Street and Playfair Avenue in Toronto.

5

My client, Mr. Da Silva, was one of the drivers of the vehicle.  Mr. Sahinbay was in the other vehicle.  This was a rear-end impact and you’ve heard already that liability or responsibility for 10 this accident is not going to be an issue today.

The other issue that is why we’re here at this trial is whether Mr. Sahinbay has suffered injuries as a result of this accident and, if he has, how

15 much are those injuries worth?

Now, the defence is going to present three witnesses.  You’re going to hear first from Mr. Da Silva, the driver of the other vehicle.  You are

20 then going to hear from a psychiatrist, Dr.

Wyndowe, and you’re going to hear from a physiatrist, that’s an expert in physical medicine and rehabilitation, whose name is Dr. Liao.  We’re going to attempt to have Dr. Liao come at some

25 point later on today if at all possible.  If not,

she’s going to come tomorrow and speak to you.  After all of that evidence has been heard, you’re going to have to decide again whether Mr. Sahinbay sustained any injuries as a result of this accident and, if so, how much are they worth in dollar amounts?

Now, in an effort to expediate matters I have prepared, with Mr. Sahinbay, a Statement of Agreed Facts and what that document is is a series of facts that both sides to this lawsuit have admitted

5 to be true.  And I prepared a number of copies of

them and, Your Honour, I would ask that the statement be…

THE COURT:  Well, I haven’t seen this before so I’d like to see it before it’s given to the jury,

10 please.

  1. DRIMER:  Absolutely.  Thank you, Your Honour.

THE COURT:  Just give me a minute.

  1. DRIMER:  Yes.

THE COURT:  Mr. Sahinbay, you’ve obviously seen

15 this?

ARIF SAHINBAY:  I would like to get the copy of this, please?

THE COURT:  Has he seen this?

  1. DRIMER:  Yes.  We discussed it yesterday.

20 THE COURT:  So give him a copy.  If he doesn’t have

a copy, let him have it, please.

ARIF SAHINBAY:  Thank you very much.

THE COURT:  Have you seen this before?

ARIF SAHINBAY:  Yes.

25 THE COURT:  You’ve discussed them with Mr. Drimer?

ARIF SAHINBAY:  Yes.

THE COURT:  You agree that everything that’s said here is true?

ARIF SAHINBAY:  Um yes.

THE COURT:  You understand that by filing this document in this way, Mr. Drimer will have been taken to have proved – you will be taken together to have proved all of the facts that are stated here, there won’t have to be any more evidence about any of the things that are said here for them to be proved?

5 ARIF SAHINBAY:  Well, these are – these are okay. THE COURT:  Do you understand that nothing more will need to be said?  These will be, for the purposes of this trial, established as facts the jury can accept that once we agree and file this

10 document?  Do you understand that?

ARIF SAHINBAY:  I do understand, but there are more things that…

THE COURT:  There may be more, and that’s something you can talk to Mr. Drimer about, but these facts

15 are accepted and proved if we file them now with

the jury.  Do you understand that?

ARIF SAHINBAY:  Yes, I do understand.

THE COURT:  And you agree?

ARIF SAHINBAY:  Yes, I…

20 THE COURT:  All right.  Then do you have copies for

the jury?

  1. DRIMER:  Yes.

THE COURT:  I think probably this should be exhibited as well to put it into evidence.  Mr.

25 Sahinbay, are you listening to me?

ARIF SAHINBAY:  Yes.

THE COURT:  We’re going to exhibit these.  Once this is made an exhibit, it’s evidence.  Do you understand?

ARIF SAHINBAY:  Sure.

THE COURT:  All right.

COURT REGISTRAR:  Exhibit 2.

EXHIBIT 2 Statement of Agreed Facts Produced and Marked 

5 THE COURT:  So members of the jury, we’re going to

make copies of this document so you each have one.  We don’t have that at the moment, but you don’t need this from Mr. Da Silva, do we?

  1. DRIMER:  No, we don’t.

10 THE COURT:  So we’ll proceed.  Once Mr. Da Silva’s

evidence is done, I expect we’ll have copies by then for you.  All right.  So we’re going to make this Exhibit 2…

  1. DRIMER:  Two.

15 THE COURT:  Is that right, Madam Registrar?

COURT REGISTRAR:  Yes, it is.

THE COURT:  Okay.

ARIF SAHINBAY:  Yes.

THE COURT:  Are you ready to proceed?

20 ARIF SAHINBAY:  Yes.

THE COURT:  All right.  Okay.

  1. DRIMER:  Thank you.  Now, ladies and gentlemen of the jury, there are items in the Statement of

Agreed Facts that we’ve already heard about in Mr.

25 Sahinbay’s evidence this morning.  You’ve heard

about when it was that his depression first started prior to the accident.  You’ve heard that he was attending for psychiatric treatments and assessments at the St. Joseph’s Health Centre’s Mental Health Program before the accident.  You heard about what his diagnosis was before the accident and that he was prescribed anti-depressant medication for that, which he was taking.  You’ve heard that he was taking this anti-depressant medication right up to the time of the car accident and that he has continued to take that anti-

5 depressant medication up to today, although it may

have changed.  You’ve heard that the antidepressant medication that he was taking was not actually reduced in dosage prior to the happening of the car accident.  You’ve heard that Mr.

10 Sahinbay applied for and successfully received

Ontario Disability Support Benefits prior to the car accident and, again, those benefits have continued to present.

15 You’ve heard that Mr. Sahinbay has no recollection

of the car accident.  He has no recollection if any part of his body struck anything inside the vehicle in the impact and nor whether he had any pain in his head or in his face in the car accident.  Mr.

20 Sahinbay has not called any witnesses to testify

other than himself.  I’ve already indicated that you will be hearing from two doctors in support of the defence case, as well as Mr. Da Silva who’s going to be coming here in a moment.  So once

25 you’ve considered all that evidence, it’s going to

be your job as a group to determine again whether Mr. Sahinbay sustained any injuries as a result of this car accident and at that point to determine, if so, how to quantify those injuries.

Thank you, ladies and gentleman of the jury and thank you, Your Honour.

THE COURT:  Are you now ready with your first witness?

  1. DRIMER:  I am, Your Honour.  Ricardo Da Silva will be the first witness.

5

RICARDO DA SILVA:  SWORN 

EXAMINATION INCHIEF BY MR. DRIMER: 

10 Q.  Good afternoon, Mr. Da Silva.

  1. Good afternoon.
  2. We’re here today because of a car accident that you were involved in on April 9th of 2010.  Can you please tell the jury briefly and His Honour what

15 happened in that accident, to the best of your

recollection?

  1. Yes.  So on that day I was travelling south on Dufferin Street.  When approaching a light, I suddenly noticed that the car in front of me hit

20 the brakes.  As I noticed him hitting the brakes, I

slammed my brakes right away and with the car next to me and the sidewalk to my right, there was no option of avoiding to – to hit the – the car in front of me.  By the time I hit him, I must have

25 been going between 10 to 20 kilometres an hour as I

did hit the brakes pretty hard.

  1. Thank you.  Now, immediately after the accident happened, do you recall what it was that you did? A.  Yeah.  So immediately after the accident, I took a picture of the vehicle in front of me to keep as evidence to show the damage that I caused to the car to make sure that there was no additional damage caused after the fact.
  2. The – the vehicle that was in front of you, could you describe it?

5 A.  It was a Chevy Cavalier, blue Chevy Cavalier,

four-door.

  1. And you took that with a…
  2. A cell phone.
  3. Okay.  Was the – did the vehicle that you 10 struck appear to be physically damaged?
  4. There was some scratches on the back of the bottom bumper and I think there was a minor crack as well.

THE COURT:  Sorry, a minor?

15 A.  A minor crack.

THE COURT:  A minor crack.

  1. DRIMER:  Q.  Now, I’ve got a copy of the photograph that you’ve indicated that you took at

20 the scene of the accident immediately thereafter.

I’d like to show it to you, Mr. Sahinbay? ARIF SAHINBAY:  Yes.

THE COURT:  And, Your Honour, this – this photograph has already been disclosed to Mr.

25 Sahinbay in an Affidavit of Documents, in a Notice

of Intention with respect to its authenticity and I’d like to, if I could, show this photograph to the witness as well for identification purposes.

THE COURT:  Okay.

  1. DRIMER:  Thank you.

THE COURT:  Mr. Sahinbay, do you have any objections to this photograph?

ARIF SAHINBAY:  I have no objections – objection.

THE COURT:  All right.

  1. DRIMER:  Thank you.
  2. Yes, this is the picture I took.

5 THE COURT:  Sorry can you just say that a bit more

loudly?

  1. Yes, this is the picture that I took after the accident.
  2. DRIMER:  Thank you.  Your Honour, would I be

10 able to offer this photograph as the next exhibit? THE COURT:  Well, I haven’t seen it yet so… MR. DRIMER:  Oh, my apologies.

THE COURT:  …before we do that, can I get a copy of that to look at.

15 MR. DRIMER:  Yes.

THE COURT:  Thank you.  Okay.  So, sorry, you want to exhibit this?

  1. DRIMER:  Please.  I’ve got a copy for the jurors.

20 THE COURT:  Do you have any objection, Mr.

Sahinbay?  We’re going to put this in evidence.  Do you have any objection?

ARIF SAHINBAY:  For this, later – later on I have something to show.

25 THE COURT:  I’m not interested in you…

ARIF SAHINBAY:  Not for this, no.

THE COURT:  Let’s just be careful on what we’re doing here.

ARIF SAHINBAY:  Okay.

THE COURT:  I’m not suggesting anything more than it’s properly being put to the jury.  So you’ve got a copy of the picture that Mr. – I can see it on the table there, that you’ve – right.  You’ve lifted it in your hand.

ARIF SAHINBAY:  Yes.

THE COURT:  And Mr. Drimer wants this to be an

5 exhibit.  As an exhibit, it becomes evidence.

ARIF SAHINBAY:  Yes.

THE COURT:  Do you have any objection to it being put in evidence?

ARIF SAHINBAY:  No, I don’t.

10 THE COURT:  All right.  So let’s that’s…

COURT REGISTRAR:  Exhibit 3.

 

EXHIBIT 3 Photograph of Scene of Accident Taken by Mr. Da Silva Produced and Marked 

15

  1. DRIMER:  Thank you, Your Honour.

THE COURT:  All right.

  1. DRIMER:  Q.  Mr. Da Silva, would you please

20 answer any questions that Mr. Sahinbay may have? A.  Sure.

  1. DRIMER:  Those are my questions.

THE COURT:  Those are your questions?  Okay.  Mr.

Sahinbay, I’m going to – it’s now your turn to

25 cross-examine.

ARIF SAHINBAY:  Sure.

THE COURT:  I do just want to say this to you.  Remember that Mr. Da Silva’s here for a relatively narrow reason.  Nobody’s suggesting that the accident was anything other than his fault.  That’s not the question here.  That has been admitted.

The only question really has to do with what can be

taken from the damage to your car, okay, which is this picture here?

ARIF SAHINBAY:  Okay. THE COURT:  All right.  Off you go.

5

CROSSEXAMINATION BY ARIF SAHINBAY: Q.  Good afternoon.

  1. Good afternoon.

10 ARIF SAHINBAY:  On pre-trial memorandum, top three – page four, five there is a picture of his car after – right after the accident.  I would like to give this to you as evidence.

THE COURT:  All right.  So what you do is take the

15 picture, give it to Mr. Da Silva and ask him

whether or not he has seen this picture before.

ARIF SAHINBAY:  Q.  Have you seen this picture? A.  No.

20 THE COURT:  Just a second.  You go back.  I don’t

want you standing over him like that.

ARIF SAHINBAY:  Sure.

THE COURT:  All right.  Now, Mr. Da Silva, sorry, have you seen this picture before?

25 A.  No.  No, it’s the first time.

THE COURT:  Do you recognize the car in the picture?

  1. It looks like my car, but the picture’s very, very dark but it looks like my car.

THE COURT:  Sorry.  You’re going to have to speak a little louder and a little bit more slowly.

  1. It looks like – it looks like my car, but the picture is very, very dark.  I can’t even make out the plates.

THE COURT:  Mr. Drimer, are we going to accept this

5 as a picture of Mr. Da Silva’s car?  What’s your

position with respect to this photograph? MR. DRIMER:  Okay.  Your Honour, this looks like a series of photographs was taken from an expert report that was not put into evidence in the trial

10 of this matter.

THE COURT:  Go ahead.

  1. DRIMER:  Unless the person who took these photographs and can speak to them and identify them properly has been presented at trial, I’m not in a

15 position to be able to agree to have these admitted

into evidence.

THE COURT:  Okay.  Mr. Sahinbay, there’s a problem here.

ARIF SAHINBAY:  Yes.

20 THE COURT:  The problem is that we can’t just

accept pictures when we don’t know who took them, when we don’t know when they were taken, when we don’t know with certainty what they represent.  In this case, Mr. Da Silva has never seen the picture

25 before so he can’t identify it with any certainty.  He has acknowledged it looks like his car, but the picture’s actually fairly faint, and Mr. Drimer’s not prepared to concede that it’s a picture of his car.  So I don’t have much option here.  I can’t have you ask questions of Mr. Da Silva about this photograph because we don’t really know what it is or what it represents.  We’re only guessing, so I’m

not going to be able to allow you to ask him questions about these pictures.

ARIF SAHINBAY:  This one has been showed to the pre-trial, this picture.

5 THE COURT:  I can’t deal with that.  It’s not been

presented in evidence in a way that allows me to accept it.  I purposely asked Mr. Drimer whether he’s prepared to accept it.  He’s not.  I can’t make him do that.  He has – his client has certain

10 rights too.  One of the rights is to be sure that

evidence that is presented is proper, is reliable and that we can be confident it demonstrates what you say it demonstrates.  We can’t be sure in this case.  So I’m not going to allow you to ask

15 questions of Mr. Da Silva about this picture, and I

assume we’re going to have the same problem with all the pictures in this group.  You can try and see if Mr. Da Silva recognizes them but I’m going to bet he doesn’t.

20

ARIF SAHINBAY:  Q.  Sure could you please turn the page, the second page.  Can you look at the second page, please?

THE COURT:  Have you got a copy for me that I can

25 work from?

ARIF SAHINBAY:  Yeah, sure.

THE COURT:  I don’t have a photograph on the second page.

ARIF SAHINBAY:  No, no photograph.  No photograph.

THE COURT:  Pardon me?

ARIF SAHINBAY:  This is – this has no photographs.

THE COURT:  Well, this is a report.

ARIF SAHINBAY:  It shows vehicle damage, so I would like to ask him if these damages are to what is replacement on the car. THE COURT:  Well…

5 ARIF SAHINBAY:  What happened to his car after the

accident?

THE COURT:  Okay.  So let me just see if I’ve got this right.  Mr. Da Silva, do you see the heading

“Da Silva Mazda?”

10 A.  Yeah.

THE COURT:  All right. Can I take it that you drove a Mazda? A.  Yes.

THE COURT:  Can I take it it was a 2002 Mazda

15 Protégé 5?

  1. Correct.

THE COURT:  Can I take it that – well, you probably don’t know this but does the VIN number – does that look familiar to you in any way?

20 A.  I don’t know the VIN.

THE COURT:  All right, but having said that, at the bottom there’s a list of damages.  “The repair estimate of the vehicle compiled by Massive Auto

Collision Inc. indicated the following in need of

25 replacement of repair.”  Do you see that in the

list that’s below there?

  1. Mm-hmm.  Yeah, I see the list.

THE COURT:  Okay.  So I think what we’re trying to get at here, Mr. Sahinbay, you tell me if I’ve got this wrong, is whether the list of things here represents the damages that occurred to your vehicle as a result of the accident.  So did your car – was there some damage to the right and left headlamp assemblies?  Was it replaced as a result of this?

  1. I wouldn’t know whether the – the body shop

5 fixed it.  I don’t know whether they fixed the

assemblies or not.

THE COURT:  All right.  What about the front bumper cover assembly?  Was it replaced?

  1. What would that refer to exactly?

10 THE COURT:  I’m sorry?

  1. What would the cover assembly mean, like the actual bumper?

THE COURT:  Can you – the only thing I can do is ask you whether you know whether – if you don’t

15 know, you don’t know.

  1. I know my bumper wasn’t changed, no.

THE COURT:  All right.

  1. If it’s – if that’s what it’s referring to, no.

THE COURT:  “Front bumper licence plate bracket

20 replaced.”  Was it replaced?

  1. I think so.

THE COURT:  All right.  Are these the questions you want to ask, Mr…

ARIF SAHINBAY:  Yes.

25 THE COURT:  All right.  “Front grill replacement.”  Was it replaced? A.  Yes.

THE COURT:  Pardon me? A.  Yes.

THE COURT:  Yes.  Hood assembly, was it replaced? A.  I know the hood was replaced.  That – that’s referring to the hood?

THE COURT:  Hood latch, was it replaced? A.  It could have been.

THE COURT:  Okay hood latch support, was it replaced?

5 A.  It might have been as well.

THE COURT:  Okay.  And upper front body tie bar, was it repaired?

  1. I don’t know what that is.

THE COURT:  I beg your pardon?

10 A.  I don’t know what that is.

THE COURT:  Okay, Mr. Sahinbay, you ask whatever questions you want, but at least we’ve established, I think, the basics of what you were going to ask.

ARIF SAHINBAY:  I would like to question his

15 credibility, first of all, because of his answers –

these questions because he doesn’t know…

THE COURT:  I don’t know what you’re going to ask, but making statements about what you’re going to do isn’t really the point.  The point is ask the

20 questions.

ARIF SAHINBAY:  Okay.

THE COURT:  Okay?  If they’re not – I expect Mr. Drimer will be real quickly if he thinks the questions aren’t proper in the circumstances.  If

25 he does that, I’ll be asking you why you think it’s

relevant and then I’ll make a ruling, as I would in the normal course in these circumstances.

ARIF SAHINBAY:  Q.  Sure.  You said you were travelling 20 kilometres per hour, is that true? A.  My estimate is that I would have been travelling probably between 10 and 20, yes.

  1. Estimate or…
  2. Estimate.
  3. You’re not sure?
  4. When I’m hitting the brakes, I don’t know by  5 the time I hit what, what the exact speed is.
  5. Okay.  Because in your discovery you said it’s 10 to 20 kilometres.  I suggest you said 10 to 20 kilometres.  There’s something that’s supposed to be certain here, because of the estimate of the 10 damages.  We need to know what is your speed?

THE COURT:  What is your what, sorry?

ARIF SAHINBAY:  Speed.  Q.  So what’s your speed? THE COURT:  Well, he has told you that he has estimated it at 10 to 20.  If you want to question

15 that, go ahead.  That’s what he has said.  You’re

certainly able to question him, permitted to question him about whether that’s right, wrong or what he remembers, but you’ll have to ask questions of that kind.

20 ARIF SAHINBAY:  Okay.  No problem.  Then I would

like to file another one, police information about the accident and my car, the picture of my car here. THE COURT:  Well, it looks like the same picture

25 that we’ve already…

ARIF SAHINBAY:  Same picture, yes.

THE COURT:  So why don’t we just work from that picture because it’s already in…

ARIF SAHINBAY:  But there’s information, the police report here, police statement.

THE COURT:  Well, what you’ll have to do is put this – you can give it to Mr. Da Silva and ask him if he has ever seen it before.  If he hasn’t seen it before, that’s the end of it.

  1. DRIMER:  Again, Your Honour, these are excerpts taken from a defence engineering report that was

5 not put into evidence, so we will object to having

this… THE COURT:  Well, can I see it, whatever we’re talking about?  What you can do is you can ask him whether the facts that are referred to here are

10 correct.  What you can’t do is put the report to

him and say this is what the report says.  So, for example, you could say to him – Mr. Drimer, if you have an objection to what I’m now going to do, you’ll have to just tell me but I want to see if I 15 can facilitate this a little bit.

  1. DRIMER:  Yes.

THE COURT:  All right.  You could ask him the following kinds of questions.  After the accident, did the police attend?

20 A.  Yes.

THE COURT:  Do you know whether or not the police – do you have a copy of the police report?  Is there a copy anywhere here?

ARIF SAHINBAY:  That’s the – that’s the – that’s

25 the…

THE COURT:  This is not the police report.  There are some statements here that are ascribed to it, but do you have it here?  Okay.  Let’s do it this way.  Can you tell me, sir, am I right that the collision occurred at 11:30 in the morning, do you recall?

  1. I think – yeah, I think that’s right.

THE COURT:  That you were approximately 20 metres north of the intersection of Dufferin and Playfair Avenue in Toronto? A.  Yes.

5 THE COURT:  That it was clear and it was daylight

at the time? A.  Yes.

THE COURT:  You can go through those questions and ask him that, although I will say this to you, Mr. 10 Sahinbay, and I won’t stop you and I don’t think Mr. Drimer’s going to object, I hope he won’t, but in all fairness I don’t really think, given that liability is admitted, that is helpful in any way.   It doesn’t do anything for us that we haven’t

15 already established and accepted as proof, which is

that this accident was caused – and Mr. Da Silva knows this – was caused by his having hit you in the back.

ARIF SAHINBAY:  Okay.  On his discovery he said he

20 was told with the police officer and explained the

situation, how the accident happened.  That’s what you’re…

THE COURT:  Well, you saw how to handle discoveries through what Mr. Drimer did.  So if you want to

25 refer to discovery – Mr. Drimer, first of all,

let’s acknowledge this is a page of some discovery from Mr. Da Silva?

  1. DRIMER:  Yes.

THE COURT:  All right.  You had better let me see this too then.  I better just – pass it up to me, please.  Just give me a second, please.  Well, before you use a discovery, as Mr. Drimer did, you have to ask the questions here.  If you get the same answers as were given by Mr. Da Silva at the time of the discovery, there’s no purpose in referring to the document.  But these questions –

5 well, okay.  Maybe you should just ask him.  So you

might say to him – as a result of this accident, were you charged under the Highway Traffic Act? A.  I got a ticket, yes.

THE COURT:  Did you go to Court to fight those

10 charges?

  1. Yeah.

THE COURT:  What happened in Court?  Were you found guilty?

  1. It got reduced to a failure to avoid collision.

15 THE COURT:  All right.  Were you there by yourself

or did you hire a lawyer for that? A.  Myself.

THE COURT:  All right.  Is there anything more you wanted to ask about this page?

20 ARIF SAHINBAY:  Yes.  I would like to ask him

either he’s lying or police officer is lying on his report because police office says…

THE COURT:  Well, we don’t have the police report here.

25 ARIF SAHINBAY:  I do.

THE COURT:  Well, I don’t know what that is so – I have to say, let’s just stop for a minute, okay?

ARIF SAHINBAY:   The second page…

THE COURT:  Just a second.  Just a second.

ARIF SAHINBAY:  This is a motor vehicle…

THE COURT:    Members of the jury, I’m going to just have a discussion with Mr. Sahinbay about what’s happening here and see if we can get this into a shape that’s right for you to hear the

5 evidence.  So if you wouldn’t mind – remember I had

said to you at the outset there might be moments where I ask you to excuse yourselves while I try and solve these kinds of problems.  I think this is one of those moments.  It’s probably better that I

10 not carry this out in front of you because I’m

going to want to refer to the evidence and you shouldn’t hear it unless the evidence is proper, but I think that’s the best way for me to deal with this and see if we can come up with a process

15 that’s going to work properly.  So if you’d just

excuse us for five minutes and – I don’t think it will take longer than that.

… JURY RETIRES (12:35 p.m.)

20

THE COURT:  Now, Mr. Sahinbay – just, Mr. Drimer, before we get to this.  Mr. Sahinbay, when this happens, typically if you had a lawyer I suspect what would happen is the lawyer would get up and

25 say he doesn’t want Mr. Da Silva to hear what I’m

saying either because I’m going to be discussing the evidence and, as I said to the jury and to you earlier, we want to make sure that what Mr. Da Silva tells us is what Mr. Da Silva remembers, not what he thinks I might be looking for because of some questions I give to you when he’s – if a lawyer were here, he’d be asking me to have Mr. Da Silva go out in the hall for a moment for this conversation.  Do you want him to go out in the hall for a minute?

ARIF SAHINBAY:  Yes, please.

5 THE COURT:  All right.  Mr. Da Silva, if you would

just go and sit out front, we’re just going to be a few minutes.  This won’t take very long, I don’t think.

10 …WITNESS EXITS THE COURTROOM  (12:36 p.m.)

THE COURT:  Mr. Sahinbay, first of all, you’ve got a problem here.  You can’t just put these reports to somebody who has never seen them and say, “Is

15 this true?”  It doesn’t help or, rather, “Is this

what the report says?”  You’re going to ask these questions.  You can ask them.  If he doesn’t know the answer, he doesn’t know.  There’s nothing more you can do.  But I’m going to say this to you as

20 well.  I’m going to ask you what you’re trying to

accomplish here because, as far as I can tell and maybe I just don’t understand, but as far as I can tell, this isn’t getting us anywhere.  It’s not doing anything you need to do.  You’ve already

25 established, Mr. Drimer has already agreed that the

accident is Mr. Da Silva’s fault.  So what the police report says doesn’t matter unless it talks about the nature of the damage to the car or says something about how violent the collision was.  If it deals with that then I think, given what Mr. Drimer’s trying to do, that’s fair game.  But these questions, “Were you charged?” doesn’t do anything because what was he charged addresses is whose fault is this.  He has already said, “It’s my fault,” so you don’t need these questions as far as I can see, unless there’s something I’m missing.

5 You don’t need.

So why don’t you just explain to me, in the absence of the jury and the absence of Mr. Da Silva so they won’t know what you’re doing, what is it you’re 10 trying to accomplish with this witness?

ARIF SAHINBAY:  Sure.  I would like to explain you that unfortunately you didn’t let me file any of the reports…

THE COURT:  Just a second.  Let’s be clear about

15 this.  It’s not that I didn’t let you file them.  It’s that the law doesn’t allow you to file them in the absence of having the witnesses here to be cross-examined.

ARIF SAHINBAY:  So…

20 THE COURT:  I’m not going to have you misrepresent

what I’ve done here.  In my view, and you may not agree, I’ve bent over backwards to be fair to you.  We have bent the Rules to make this work.  So please be careful before you too easily talk about 25 what I’ve done.  Do you understand?

ARIF SAHINBAY:  Yes, I do.

THE COURT:  All right.  So what is it we’re trying to accomplish with this?

ARIF SAHINBAY:  This is the only material that I have.

THE COURT:  Right.

ARIF SAHINBAY:  Unfortunately, and I have to go from here.  It says Police Constable Savino of Toronto Police Service.  Probably this report doesn’t lie.

5 THE COURT:  But what does it matter?  He’s… ARIF SAHINBAY:  The matter is – is this.  The police says 50 kilometres per hour.

THE COURT:  Where does it say that he was going 50 kilometres per hour.

10 ARIF SAHINBAY:  The second page, first paragraph.

THE COURT:  Just a minute.  Okay just a minute.

“The speed of the Da Silva vehicle was approximately 50 kilometres per hour when it rearended…”  Okay.  I got it.  So, what else?

15 ARIF SAHINBAY:  So…

THE COURT:  We’ll talk about how we’re going to do this.  You tell me what else you want to establish.

ARIF SAHINBAY:  Okay.

THE COURT:  What else in here do you want to refer

20 to?

ARIF SAHINBAY:  I would like to refer that the impact of this 50 kilometres and he says 20 kilometres is – is total different – different than, you know, the result of the – of the

25 collision.

THE COURT:  Just a minute.  “As a result of the collision, the Da Silva Mazda sustained severe damage.”

ARIF SAHINBAY:  Damage, yes.

THE COURT:  Okay got it.  What else?  And says my Chevrolet sustained light damage, yes.

THE COURT:  Well, we’ve got that from Mr. Drimer putting the picture to you.

ARIF SAHINBAY:  That’s right.

THE COURT:  Presumably you’re not going to do that

5 because we’ve already got it.  There’s nothing to

be said.

ARIF SAHINBAY:  Yes.

THE COURT:  All right.  What else?

ARIF SAHINBAY:  I would like to also ask him about

10 the – this front grill has been replaced, upper

front body – body tie bar has been replaced. THE COURT:  Why?  What is that going to be do for you?  You’ve already asked him.  He has indicated either…

15 ARIF SAHINBAY:  Because I want to…

THE COURT:  …one of two things, either he doesn’t know or he has agreed with the – nothing else to ask him, I don’t think.

ARIF SAHINBAY:  These are – these shows that

20 impact, just to…

THE COURT:  But you can already argue that.  He said the hood was replaced.  It seems to me if the hood was replaced, you’ve got – he said that.  I don’t think you need to ask him anything more.  He

25 has agreed with that.  So you can make your

argument to the jury…

ARIF SAHINBAY:  So…

THE COURT:  …that this was a serious accident.  I don’t know whether they’ll agree with you, but you could say, “What does it mean when the hood’s replaced?  Doesn’t that mean it was a serious accident?” and they’ll have to decide whether you were right or wrong.  Mr. Drimer’s going to say something totally different.  He’s going to say, I think, what matters is what happened to your car and there wasn’t very much damage, and the jury

5 will decide.

ARIF SAHINBAY:  Okay.

THE COURT:  So we’ve got two things here, the severe damage thing and the 50 kilometres.

Anything else?

10 ARIF SAHINBAY:  These are police reports.

THE COURT:  I bet your pardon?

ARIF SAHINBAY:  These are police – police reports, police say so.

THE COURT:  Yes, I understand.

15 ARIF SAHINBAY:  Okay.  So I would like to file

this.

THE COURT:  No, you’re not going to file it, but we’re going to have Mr. Da Silva talk about it.  I just haven’t figured out how yet.  You can’t file

20 this because nobody – if you’ve got the police

report, we can take that and we’ll file it if you have it.  Do you have the police report here? MR. DRIMER:  We don’t, no.  We’re not arguing liability so…

25 THE COURT:  So what you can do – let me just think

this thing through, okay?  Mr. Drimer, if you object, you’ve got every right to object to this.  What I’m trying to do is get this done in a way that I think is fair to everybody and as best as I can do in these unnecessarily complicated circumstances, it seems to me.  Mr. Da Silva has said, in his view he was going 10 to 20 kilometres.

It appears that there’s a statement in the police report, if we had it, saying that in fact he was going approximately – sorry, I shouldn’t say that in fact, but the police report says that he was

5 going approximately 50 kilometres per hour and

there’s a difference there.

ARIF SAHINBAY:  Yes.

THE COURT:  So are you prepared to accept, for the purposes of this, that the police report says, for

10 whatever it may mean, that the police recorded on

the police report that he was – I don’t think that you can put it any higher than that, that Mr. Da Silva was going approximately 50 kilometres per hour?  I’m not asking you to accept he was, just 15 that that’s what the police report says?

  1. DRIMER:  yes.

THE COURT:  Okay.  So Mr. Sahinbay, there’s two things I want to say to you.  The first thing I want to say is that Mr. Drimer here is really

20 trying to, as best he can do it for the sake – and

remember, he has got a client to represent – is trying to make this simpler for you and he deserves that understanding and credit from me and from you.

ARIF SAHINBAY:  Yes.

25 THE COURT:  So what we’re going to do is you can

say that everybody agrees, and Mr. Drimer will get up and agree that the police report says that he was going 50 kilometres per hour and you can ask him does he have any reason to disagree with that statement and Mr. Da Silva will tell you whether he agrees or whether he doesn’t agree and then you’ll  just have to go on.

ARIF SAHINBAY:  Okay.

THE COURT:  You can argue what the police report says.  Mr. Drimer may have some questions for Mr. Da Silva about that in reply.  He may not.  That’s

5 his business.  Not in reply, I’m sorry in re-

examination.  The second thing is severe damage, Mr. Drimer, in the same vein, are you prepared to accept only that the police report says that the Da Silva vehicle suffered severe damage?

10 MR. DRIMER:  Could I just take a look at that?  I

don’t have a copy.  Thank you.  No, but the – what’s written here.  I don’t see that.  I see that written in the engineering report.  I don’t see that written in the police report.

15 THE COURT:  Well, it has got quotations around it. MR. DRIMER:  Right.  Again, from my recollection of the police report, I don’t recall the words severe or light in there unless that’s one of the codes that’s being translated by the engineer from the

20 M.V.A. report.  I’d – I’d be…

THE COURT:  All right.  So what you can do…

  1. DRIMER:  …I’d be reluctant to…

THE COURT:  What you’re going to have to do, I think, on that basis Mr. Sahinbay, you really can’t

25 ask any questions about the police report and

severe damage because Mr. Drimer’s not prepared to accept that.  He doesn’t remember that.  He thinks it might be a conclusion of the person who prepared this report.  That person’s not here.  However, let me just make the point that you’ve gone through with Mr. – or I have really, on your behalf, gone through with Mr. Da Silva the list of things that were gone wrong with his car.  So you can take what he said.  You can’t repeat what you believe, but what he said.  So for example, he did say the hood was replaced, he did agree with a few things.  And

5 say to the jury, based on that they can accept or

you ask them to find that the damage to the Da Silva vehicle was severe.  So you can already argue that.  Whether you agree with you or not and what Mr. Drimer may say in response is a completely 10 different question.  Are you with me?

ARIF SAHINBAY:  Yes, I am with you.  And I would like to also file…

THE COURT:  Show it to Mr. Drimer.  I don’t know what it is.

15 ARIF SAHINBAY:  Ambulance report, emergency

ambulance report.

  1. DRIMER:  I can’t agree to the ambulance report, Your Honour.  There’s opinion evidence by the ambulance call attendants who attended at the scene

20 with respect to injuries suffered.

THE COURT:  Can I see it, please?  What are we reading here, sorry?  Oh, the assessment?  Is that what we’re looking at? ARIF SAHINBAY:  By standard it states…

25 THE COURT:  Pardon me?

ARIF SAHINBAY:  It says in the middle…

THE COURT:  What is it you want to read to the jury here?

ARIF SAHINBAY:  Fifty kilometres…

THE COURT:  Well, we’ve already talked about the 50 kilometres.  We’re not going there.  You’ve got that from the police report.  You don’t need it any more here.  The ambulance doesn’t know.  It’s only what they were told by people that came later.  They didn’t see the speed.  It doesn’t help you.

It doesn’t add to what’s on the police report, so   5 you’ve got that.  Anything else?

ARIF SAHINBAY:  Yes, so far nothing else.  That’s all.

THE COURT:  I beg your pardon?

ARIF SAHINBAY:  Nothing else.

10 THE COURT:  There’s nothing else you want this for? ARIF SAHINBAY:  No, that’s – that’s fine.  I mean… THE COURT:  All right.  Well, then I don’t think we need this.

ARIF SAHINBAY:  Okay.

15 THE COURT:   All you need to do is do what you –

Mr. Drimer has agreed, the police report says 50.  You can ask him.  You could say to the jury that everybody agrees that the police report says 50 kilometres per hour.  Mr. Drimer, please get up and

20 tell the jury you agree.  And then you can ask this

witness does he have any reason to disbelieve the police officer or that was the police officer’s view, or however you want to put it and we’ll see what Mr. Da Silva says and that will be the 25 evidence.  There’s nothing more we can do.

ARIF SAHINBAY:  No problem.

THE COURT:  Do you understand?

ARIF SAHINBAY:  I’m just trying to get the truth from here so…

THE COURT:  I understand, and as far as the severe is concerned you take what he said about the accident and then you define that any way you want in your submissions to them.  You’ve got what Mr. Da Silva can give you.  I don’t know whether it’s enough or it isn’t enough and I don’t remember exactly what he said at this point.

5 ARIF SAHINBAY:  Okay.

THE COURT:  Just give me a second.  I want to think about it.  Okay.  Anything else?

ARIF SAHINBAY:  Nothing else.

THE COURT:  Mr. Drimer, before I bring them back?

10 MR. DRIMER:  No, Your Honour.

THE COURT:  So we’re clear on this, we’re going to do the 50 kilometres.  We’re not doing another thing about the severe and you don’t need the ambulance report.  How much longer do you think

15 you’ll be before you finish?

ARIF SAHINBAY:  It wouldn’t take too long, five minutes more.

THE COURT:  All right.  So we’re going to finish this witness now.  I think you should take 30

20 seconds and go out and speak to Dr. Wyndowe and ask

whether it makes any difference to him if we just adjourn this until 2:00 and we do him after lunch.  It seems smarter from our point of view.  If it’s going to inconvenience him in some way, let’s find

25 that out before I just – can you do that right now,

just while we’re sitting here? MR. DRIMER:  Yes, Your Honour.

THE COURT:  Just hang on, Mr. Sahinbay, for just one second.

  1. DRIMER:  Dr. Wyndowe is agreeable to come at two o’clock.

THE COURT:  All right.  So what we’re going to do

Mr. Sahinbay, we’re going to finish this evidence.  Then we’re going to adjourn for lunch and we’ve got the afternoon to do the doctor.  Okay?

5 ARIF SAHINBAY:  Sure.

THE COURT:  All right.  Bring him back, please.  Has somebody gone to get him?  And Carlos the jury too.

COURT SERVICES OFFICER:  Yes.

10

…WITNESS RESUMES THE STAND      (12:50 p.m.)

…JURY PRESENT        (12:51 p.m.)

15 THE COURT:  Members of the jury, thank you for your

patience.  I think we’ve cleared this up.  I think we’ll be all right now.  Okay, Mr. Sahinbay, you go ahead.

ARIF SAHINBAY:  Okay.

20 THE COURT:  I should say, Mr. Da Silva, thank you

for your patience as well.   A.  No problem.

THE COURT:  I appreciate it.

ARIF SAHINBAY:  Your Honour, you want me to speak

25 to him about fifty kilometres?

THE COURT:  Well, you ask the question.

ARIF SAHINBAY:  Sure.  Okay. THE COURT:  Let me try and help you out here.

ARIF SAHINBAY:  Thank you.

THE COURT:  So for the purposes of the questions that Mr. Sahinbay is going to ask the parties Mr. Drimer has agreed that the police report which we don’t actually have here makes the statement that the car being driven by Mr. Da Silva was going approximately 50 kilometres per hour.  Is that what the police report says, Mr. Drimer?

5 MR. DRIMER:  It is.

THE COURT:  All right.  So you ask whatever questions you have as a result of that.

CROSSEXAMINATION BY ARIF SAHINBAY–  continued 

10

ARIF SAHINBAY:  Q.  Okay, do you agree with this? A.  The question is was I driving?

  1. No.  Do you agree with the police report, it says 50 kilometres per hour?

15 A.  That I was driving?

  1. Yes.
  2. Yes.
  3. You do agree.  Okay.

THE COURT:  Well, let’s – sorry, I want to be clear 20 that the question was understood here, all right?  So let’s just do it this way.  The police report says that you were going approximately 50 kilometres per hour.

  1. Like as I was driving down the street prior to

25 the accident?

THE COURT:  No.  Fifty kilometres per hour when it rear-ended, when the accident occurred you were going 50 kilometres per hour.  That’s the speed you were going at, the police report says, when you hit Mr. Sahinbay’s car.  Do you agree with that? A.  No.

THE COURT:  All right.  Go ahead.

ARIF SAHINBAY:  Q.  Okay, so you do not agree with that.  Your front bumper cover assembly has been replaced?  Are you agreeing?

THE COURT:  We’ve been through that.  I don’t think

5 we need to re-do that, do we?  He has answered your

questions.

ARIF SAHINBAY:  Well, these are the…

THE COURT:  All right.  I understand.  No, no.  I’m sorry, I’m wrong.  You go ahead.

10 ARIF SAHINBAY:  Yes.

THE COURT:  You go ahead.  Sorry, I misunderstood. ARIF SAHINBAY:  Okay no problem.  Q.  Do you agree with the front grill replacement? A.  Front grill, yes.

15 Q.  Front grill.  So front grill.

  1. Front grill replaced, yes.
  2. Do you think – how many kilometres – what do you think about the front grill replacement?  How many kilometres impact should be to be replaced

20 front grill?

  1. I don’t know.  It’s plastic.  It does break easily.  It’s plastic.
  2. It’s plastic.  Okay.  So how about hood assembly?  Hood.

25 A.  I mean, I don’t know what speed.  I’m not a… Q.  Okay.  The important one is here, upper front body tie-bar.  Unfortunately, I can’t show you the picture of his car, but this tie-bar is like – it’s a bar like metal bar.  It doesn’t bend very easily.  It’s supposed to be really like hitting somewhere with 50 kilometres at least speed.  Well, let’s say if you hit 50 kilometres speed to the wall, yes,

this damage could occur in my opinion because this is…

THE COURT:  Mr. Sahinbay, Mr. Drimer’s not getting up but he could.  This really isn’t proper.  You’re

5 putting in evidence your understanding of what it

would take or what speed you’d have to be going for these things to happen.  It’s not the time for that now.  It might be something you’d consider doing in reply, frankly, if you know the answer but not now.

10 So you ask him questions.  That’s it.  You don’t

make statements.

ARIF SAHINBAY:  Okay.  My question is finished.

Thank you very much.

THE COURT:  Well, just a second.  I don’t think you

15 give up out of frustration.  I think you ask your

questions.  So let’s get clear what’s happening here.  Do you have any more questions for him?

ARIF SAHINBAY:  No, I don’t.  I don’t.

THE COURT:  Are you sure?

20 ARIF SAHINBAY:  Yes I am.  Thank you.

THE COURT:  All right.  Mr. Drimer?

  1. DRIMER:  No questions on re-examination, Your Honour.

THE COURT:  Mr. Da Silva, thank you for coming down 25 to help us out.  We appreciate it.

  1. Do you need this?

THE COURT:  Pardon me? A.  Do you need this?

THE COURT:  Well, I think you should give it back to him.  All right.  I think, Mr. Drimer, members of the jury, it’s conveniently five to one, which is about the time that we normally adjourn for lunch.  We do have the doctor.  The doctor will probably be a little bit longer, I expect, in evidence?

  1. DRIMER:  Yes.

5 THE COURT:  So I think what we’re going to do now

is we’re going to adjourn until – is 2:15, the regular time, enough?

  1. DRIMER:  Yes.

THE COURT:  All right.  So we’re going to adjourn

10 to 2:15, which is about our regular lunch break,

and this afternoon we’ll deal with the first of the two doctors and, as I said to you earlier, we’ll have to figure out exactly where we are when we get to the end of that.  Okay?  So we’ll see you at

15 2:15.  Thanks for your attention.

… JURY RETIRES (12:56 p.m.)

THE COURT:  Okay.  So we’ll come back at 2:15.

20 We’ll hear from Dr. Wyndowe then.  You think you’ll

be an hour.  I think that’s what you said.  You’ll be ready to cross-examine after the hour?

ARIF SAHINBAY:  I will be, yes.

THE COURT:  All right.  Then I would expect we’ll

25 at least finish him today.  What about the other

doctor?

  1. DRIMER:  I have to check my phone, Your Honour, and see.

THE COURT:  Well, let’s just think this through just before we get ourselves into trouble.  If you’re really an hour, you’d finish at 3:15.  We’d probably take a break then.  It’s a little bit early, but that would give Mr. Sahinbay a chance to think about what questions he wants to ask or we’ll go to 3:30 and then take the break.  It’s the same thing.  I would assume that Mr. Sahinbay is going   5 to be about an hour, probably just about the same

length of time.  Any idea how long you’d be? ARIF SAHINBAY:  I have no idea.  Depends what it is going to…

THE COURT:  And I think that’s a fair and

10 appropriate answer.  I don’t think you can really

know at this point.  But if we did that, that would take us to quarter to four, so we’d be done.  So I think probably, as unhappy as I am about this, it would be unwise to ask the doctor to come because

15 we might not get to her and that would really

aggravate the problem we’ve already got.  What I would ask you to – well, I mean, I was going to say is can we still – where is she?

  1. DRIMER:  She’s now in her office.

20 THE COURT:  Where’s her office?

  1. DRIMER:  In Scarborough.

THE COURT:  Okay.  Well, I think we’re done.  I think we’re going to just finish the first doctor and we’ll adjourn whenever that is and then we’ll

25 have to pick it up at noon tomorrow.  I think I

know the answer to this, but I’m obliged to ask.  How about phoning her and trying to get her here by eleven o’clock?

  1. DRIMER:  Tomorrow morning, she’s at a conference.  She’s speaking at a conference in Burlington.  That’s the only issue.  So as soon as she’s done speaking, she said she’s going to head right here.  So I think it’s just a matter of gauging how long that will take.

THE COURT:  All right.  So maybe what we should do is – well, you tell me whether there’s any value in

5 this – phone her and ask her how early it is

possible without speeding, without speaking too quickly in her presentation – how early it’s possible she could be here so that we don’t get a situation where we waste half an hour when she’s 10 here but we’ve told the jury not to come until.  Whatever she says, we’ll get the jury here for then.  We’ll warn them that they may have to wait a while, that we’re trying to do this as quickly as we can.  Can you that for me?

15 MR. DRIMER:  Yes.

THE COURT:  Okay.  See you at 2:15.

                      R E C E S S20 …U P O N  R E S U M I N G (12:59 p.m.) (2:12 p.m.)

THE COURT:  Is there anything we need to do before we call the jury back?

  1. DRIMER:  I can just advise you my student has

25 just arrived.  He has been able to get in touch

with Dr. Liao, the witness for tomorrow.  She’s going to do her best to be here by noon, after the conference in Burlington, although more realistically she thinks that one o’clock, out of fairness to the jury, is probably more likely.  Is that a fair representation? STUDENT:  It is.

THE COURT:  How long are you going to be with her? MR. DRIMER:  I expect to be shorter than I will with Dr. Wyndowe, so…

THE COURT:  No, no, no.  That could be 55 minutes

5 or 25 minutes.

  1. DRIMER:  Fair enough.  Half an hour.

THE COURT:  Half an hour.  All right.  So one – if you’re half an hour, we could finish here maybe by

2:15.  Submissions, you’re not going to be longer 10 than half an hour in your submissions, are you?

  1. DRIMER:  No.

THE COURT:  Mr. Sahinbay, you’re not going to be longer than half an hour in your final argument, are you?  When you go through all of this and

15 explain to the jury what you want from them, you

won’t be more than half an hour, will you?

ARIF SAHINBAY:  No.

THE COURT:  So we could probably still do this and get them thinking by 3:30.  We could also just stop

20 and bring them back Thursday afternoon, but I’d

rather – we’ll have to work it out.  We’ll just have to see.  Okay.  Well, then we’ll tell the jury.  So you think we would be wiser to tell the jury to come at 1:00 rather than at 12:00 or 12:30?

25 MR. DRIMER:  Twelve thirty…

THE COURT:  I mean, if the doctor got here at noon it would be a shame to lose that.  Should we compromise at 12:30?

  1. DRIMER:  I think 12:30 might be the best bet. THE COURT:  Okay, all right.  Are we ready with this doctor, Dr. Wyndowe.
  2. DRIMER:  Wyndowe is here.

THE COURT:  Okay.  Are you ready, Mr. Sahinbay?

ARIF SAHINBAY:  Yes.

THE COURT:  All right.  Is it W-I-N-D-O-W-E? MR. DRIMER:  W-Y-N-D-O-W-E.

5 THE COURT:  Sorry, W?

  1. DRIMER:  Y-N-D-O-W-E.

THE COURT:  Got it, thank you.

  1. DRIMER:  First initial J.  Are you going to be proving the doctor as an expert?

10 MR. DRIMER:  Yes.

THE COURT:  All right.  I’m going to do this quickly.  Listen.  He’s going to want to prove the doctor is an expert so that he can ask for opinion evidence.  You need to listen and you’ll be given a

15 chance to ask the doctor questions.  If you

disagree that he’s an expert, then I’ll make the ruling.  Do you understand?

ARIF SAHINBAY:  I do.

THE COURT:  All right.

20

… JURY ENTERS (2:16 p.m.)

THE COURT:  Are we ready?

  1. DRIMER:  We are, Your Honour, yes.  The

25 defendants would like to call Dr. Wyndowe as our

next witness.

JEFFREY WYNDOWE  –  SWORN 

   

  1. DRIMER:  Your Honour to assist I’ve got a copy of Dr. Wyndowe’s Curriculum Vitae or C.V.  I’ve got a copy for Mr. Sahinbay as well.  If you could pass it up to the witness please, a copy for the Court.

   

5 EXAMINATION INCHIEF BY MR. DRIMER: 

  1. Good afternoon Dr. Wyndowe.
  2. Good afternoon.
  3. Can you tell us what your occupation or profession is please?

10

  1. I’m a psychiatrist.
  2. Thank you and can you tell us a little bit about your educational background please?
  3. Well I did my M.D. in Toronto. I had a rotating internship at then at Wellesley Hospital

15

which no longer exists.  Then I went off to Montreal and then I did two years of internal medicine in Montreal at the First of the Jewish General and then at the Montreal General.  Then I switched into psychiatry and did the rest of my

20

training at the McGill program.

  1. Thank you and can you tell us what degrees, certificates you have?
  2. Well I have my M.D. and then I have my Canadian

Fellowship and I also have my American Board

25

qualifications in Psychiatry and Neurology and my British membership in the Royal College of Psychiatrists.

  1. Thank you and how many years have you worked in this field?
  2. Mm – ah 40, 39.
  3. Thank you and over those 39 years how many

independent psychiatric evaluations would you say you’ve done?

  1. Ah well I began doing those in 1993.  I think since then I’ve done somewhere more than a

5 thousand, one thousand to fifteen hundred.

  1. Thank you and how many times have you testified in court as an expert in psychiatry? A.   Mm I think five or six times.
  2. Thank you Your Honour the defence would like to

10 proffer Dr. Wyndowe as an expert witness in the

field of psychiatry.

THE COURT:  All right now members of the jury you remember that we discussed earlier in the day how we treat special privileges that we give to expert 15 witnesses and what you’ve heard here is Mr. Drimer

demonstrating the experience expertise of Dr. Wyndowe.  Mr. Sahinbay do you accept Dr. Wyndowe as an expert psychiatrist or do you wish to ask him some questions about his experience?

20 ARIF SAHINBAY:  Yes I would like to ask him a

question about…

THE COURT:  You go ahead I’m just telling Mr.

Drimer to sit down while you…

25 ARIF SAHINBAY:  Q.  Who do you work for mostly? A.  Um well I’m self-employed.

  1. So insurance is – what’s the person’s job for insurance that ah in your, in your work?
  2. Um well it increased.  I, I retired about two months ago and then up till then I would say that my, my clinical practice (that is the patients I found in private practice) in various institutions that went gradually down over the years and my involvement with various medical legal cases increased.  So by the – let’s say in the last two years I’d probably spend about seventy percent of

5 my time involved in those cases.

  1. Seventy percent of your work that you are working for the insurance companies right?
  2. I would say most of the time I was working at – with the…

10 Q.  More than seventy percent?

  1. …the defence which was with the insurance companies that’s right.  I certainly offered my services to all, but they were the only takers.
  2. I understand that, this, this is all my

15 questions.

THE COURT:  Okay well just before I ask you the next question, I should of asked or I do ask now, is – has Dr. Wyndowe filled out the Form 53?

  1. DRIMER:  He has it’s actually appendaged to the

20 C.V.

THE COURT:  Okay, all right do you accept Dr.

Wyndowe as a, expert…

ARIF SAHINBAY:  Yes I do.

THE COURT:  …in the area of psychiatry?

25 ARIF SAHINBAY:  Sorry yes.

THE COURT:  All right so I’m going to accept Dr. Wyndowe’s as an expert in psychiatry and allow him to give opinion evidence.  I’m going to just explain to the jury what I was talking about when I asked about Form 53 and I know that Dr. Wyndowe will understand what this is.

We want to be sure that expert witnesses when they come here understand what their responsibility is.  Responsibility is not to come here and take the side of the person who hired them, that their duty   5 is to the Court, not to any individual.  And in

order to make that point clear, we ask expert witnesses fairly recently (this is since 2010 if I remember correctly…

  1. WYNDOWE:  I think that’s right.

10 THE COURT:  …I know it was in 2010, we now ask

experts to sign a form by which they acknowledge that that is their responsibility and the reason it is referred to as Form 53 is because the rule which refers to all of this, is our Rule 53 of our rules 15 of civil procedure.   So what I’ve really done is

asked whether or not Dr. Wyndowe has signed the form here to make clear to you that he knows that’s the nature of his responsibility.  Okay, any questions about that Mr. Sahinbay what I’ve just

20 said?

ARIF SAHINBAY:  No questions.

THE COURT: All right so you sit down and Mr. Drimer’s going to have some questions for the doctor.

25

EXAMINATION INCHIEF BY MR. DRIMER–  continued 

  1. Dr. Wyndowe you were retained by my office with respect to this matter? A.  Yes.
  2. Okay and you understood that this was a, a

civil matter with respect to a motor vehicle accident?

  1. I did.
  2. And you were asked to conduct an independent  5 psychiatric evaluation of Mr. Sahinbay?
  3. Yes I was.
  4. And that in fact took place back on March 6th of 2013?
  5. I believe so yes.

10 Q. Thank you and following that independent

psychiatric evaluation, were you able to formulate any opinions and conclusions? A.  Yes I was.

  1. Thank you and before we get to that, can you

15 please explain to the jury what facts it was that

you relied upon in order to reach those opinions and conclusions?

  1. Well the question I was asked to address is whether or not in my opinion Mr. Sahinbay had 20 suffered as a result of the motor vehicle accident

in I think it was Ap – April 2010.  A serious and permanent impairment of an important psychological and or mental function. So in addressing that question, I undertook to do a psychiatric 25 evaluation which required me to get from Mr.

Sahinbay an idea of what his complaints were um and Mr. Sahinbay had a lot of complaints referable not only to his physical condition, but also to his psychological condition specifically since the accident and in that respect he complained of a lot of symptoms suggestive of a depressive condition.  Symptoms concerned with anxiety and also and possibly most significantly, symptoms which he felt were due to a brain injury that he sustained in that accident.  So with this list of complaints I then undertook to interview him and try and   5 establish the severity and the nature of these

various complaints.  I then conducted what we call a mental status examination and looked for features of mood (that is depression), anxiety condition and also what we call a cognitive impairment.  Now

10 cognate – cognition just to explain you.  In

psychiatry there are several domains that we look for.  One is symptoms in a thought, symptoms of feeling and also symptoms of cognition which are pretty much the mechanical functions of the brain.

15 They allow you to be oriented and to remember to

attend to situations and pretty much to function in reality and when these are impaired, it leads to certain difficulties in managing your day-to-day existence.  So that’s the cognitive realm and Mr.

20 Sahinbay had numerous complaints in the cognitive

realm, particularly around memory, but also in attention and various other cognitive functions.  So in doing an evaluation, I then did what we call a mental status examination in which I assessed

25 various fact features of his attitude, his

behaviour.  I was with him for quite a while about in excess of three hours I think, possible – almost four hours.  And the – and then I administered some questionnaires and some tests and based on all that plus the various documents I have reviewed from other health practitioners who had an opportunity to evaluate Mr. Sahinbay I came to my conclusion at that point.

  1. Thank you and can you please explain to the jury the nature of the questionnaires and tests that you undertook with him?

5 A.  Yes well in psychiatry we don’t have a lot of

tests you know in medical – and various interns can do some things like that and they can therefore find what they call objective signs.  We rely on a great deal on observations and on what people tell 10 us.  So and in a situation such as this where a lot

depends on the nature and severity of a person’s symptoms and difficulties, it’s important to validate their various claims of symptoms, et cetera.  So first of all there – I administered – I

15 asked him to respond to – with the interpreter

various questions regarding his mood.  In which these questions are basically framed they say for example, they’re all – a symptom will be given for example sadness and then a person is allowed a

20 four-part response to that, ranging in severity

from no symptom at all to very severe.  I think for the first one sadness it says the first one is “I’m not sad at all”.  The second one is “I’m sad a lot”.  Third is I’m sad – no is that “I’m sad a bit 25 of the time” then its “I’m sad a lot of the time”

and then finally “I’m so sad I can’t stand it”.  So they, they’re all like that.  And they all concern areas that have been known to be involved in cases of, of depression and there’s also a similar one for anxiety.  And Mr. Sahinbay responded he, he through the interpreter answered these and scored quite high in the severe range for both anxiety and depression and then in order to validate these responses, another test was administered which is called “Structure Inventory of Malingered Symptomatology” which is a series of about 75

5 questions.  And this test was designed to get an

idea of how likely a person is to endorse any symptomatic question that’s given to them and the cut-off is about 14.  You’re allowed about 14 and Mr. Sahinbay’s score was considerably in excess of

10 that.  Leading to the conclusion he had a strong

tendency to endorse symptoms that are considered highly unusual in subjects with genuine psychiatric disorder.  So that undercuts somewhat his own exposition of his symptoms.  Then an area of his 15 cognitive functions, I did the “Montreal Cognitive Assessment Test” which is – covers a range of cognitive functions and in – he had some – I decided not to grade the ones of language because he obviously – English not being his first 20 language.  So instead of out of 30, I graded it out

of 27 and he scored 12 out of 27, which is in the area of moderate dementia.  Then because his findings on the memory test were so poor I then did two other tests to try to validate them.  One is

25 called the “Ray 15 Item Memory Test” and another

one, the “Test of Memory Malingering”.  The – could I show them I have a sheet of paper to show them what, what’s involved there?

THE COURT:  I think what we should do – do you know what’s being – going to happen here?

  1. DRIMER:  I’m, I’m not sure exactly what the doctor’s going to do?

THE COURT:  So why don’t you just before you do anything show it to Mr. Drimer and let’s just make sure we know what we’re doing here.

  1. DRIMER:  Can I approach Your Honour?

5 THE COURT:  Yes of course.

  1. This is just to help you understand what the test is about – there, so this is the re-test just to show why it is and these are some of the examples of the Memory Malingering.  All right.

10 MR. DRIMER:  Thank you.

THE COURT:  I think what you should do is just show it to – take a moment quietly and show it to Mr. Sahinbay and just explain it very quickly if you can what this is.   I take it these are tools that 15 you use as part of giving these tests and it will

help you explain what the tests are? A.  These?

THE COURT:  Yes.

  1. Well I photocopied some examples because I

20 figured I might have a difficult time explaining

exactly what, what they were.

THE COURT:  Right, okay but they’re not particular to him…

  1. No, no, no.

25 THE COURT:  …they are general in nature?  So Mr. Sahinbay what Dr. Wyndowe wants to do is to use this material to help him explain to the jury what it is, the nature of the test that he did… ARIF SAHINBAY:  Yeah.

THE COURT:  …and how the test works.  Do you have any objection to this?

ARIF SAHINBAY:  No.

THE COURT:  Okay let’s go.  Perhaps I should ask Dr. Wyndowe before we go ahead, can we copy this?

Can we keep them or do you need them back? A.  You may keep them.

5 THE COURT:  All right okay just so when we get to

it Mr. Drimer we should probably exhibit these now I think?

  1. DRIMER:  Yes.
  2. Okay so a 15 item test, I’m going to show you a

10 piece of paper with 15 items on it, you’ll get to

look at it for ten seconds.  Then immediately afterwards I’ll ask you to write down the ones you remember.  So it sounds like a person’s going to have to be on their toes, but in fact they’re 15 arranged like this.  So you see in fact there’s a

lot of repetition there.  And in fact experts say that probably it doesn’t require memory, 15 things probably three or four because there’s two a,b,c’s, there’s two 1-2-3’s and there’s the letters so…

20 THE COURT:  Dr. Wyndowe just for the purpose of the

record because if anybody ever reads this they won’t know what’s going on here. A.  All right.

THE COURT:  I’m just going to explain this.  The

25 doctor has referred to a piece of paper that has

four lines of symbols on it each… A.  Five.

THE COURT:  …five lines of symbols on it thank you.  Each line has a different set of symbols.  So the first line is three letters.  The second three numbers.  The third four letters, but a different case, roman numerals and then just some, some shapes.  Okay.

  1. Okay so as I said the person’s given ten seconds to look at that and then asked to write them down.  The – it has been validated against a  5 lot of different subjects over the years and has

been found to be quite specific.  That is if somebody scores less than nine on that, there’s a very strong chance that they misrepresenting to some degree their memory problems because in fact 10 it’s a lot easier then it appears to be.  So most

people and even a lot of people with significant problems with their mental function, have no trouble replicating that.  Then because that looked a little unusual, I then administered a much longer 15 test which is called a test of Memory Malingering

which was then developed maybe 15 20 years ago and is probably the standard or at least one of the standards.  And what – once again it’s set-up as a test that looks pretty hard, but in fact it has 20 been validated against a lot of different groups of

patients with mild brain injury right through to moderate dementia.  And it’s been found that in fact while it sounds like it’s difficult in fact people score pretty well on it.  So what happens is 25 that a booklet of pictures is presented one at a

time.  There are 50 and they’re presented three seconds each.  Then after they go through all 50, then they’re given a chance to see how many of those you can remember.  So I’ll show you – so this for example – this is how you show them how it’s, how it’s done.  These are two test pictures.  Show first that one – a picture of a spoon and incidentally they don’t have to name it because – so it’s a non-verbal test.  It’s just simply they have to recognize that they’ve seen it before.  So that’s the first one and this is the second one.

5 Then…

THE COURT:  It’s just a pictures of a snake.

  1. Snake yeah.  So then the testing of that is which of these two have you seen before, A or B?

They don’t have to name them just A or B point to

10 one or the other and then which of these two have

you seen before?  So you go through 50 pictures, all in a row before they are given a series of pictures like this to choose which of them they’ve seen and they – this test has been what they call 15 “normed” as they found out what the normal values

are in many, many different patient groups.  And it’s been found that even moderately demented people with significant problems with their mental abilities score – perfect score is 50.  Most 20 normals you do it twice I should tell you and the

one you look at is the second test so that they’ve had the chance actually to see them twice and the second test most normals score between 48 and 50.

When they tested on clinical samples, they found

25 that mild brain injuries scored pretty much the

same and even moderate brain injuries rarely scored below 45.  Now when they’re – they also tested against a group of normals who were asked to act as though they had some brain damage and they gave them a battery of tests, one of which was this.  And they scored much, much lower.  So the score that Mr. Sahinbay had was much closer to the people who had the project of trying to show that they had some kind of brain damage and much further away from those people who actually had brain damage.  So it led me to the conclusion that I couldn’t

5 really put a lot of credence in – I guess that’s

not the right word, I could not validate his complaints of memory by these tests and I felt that all the information that I had reflected on his cognitive symptoms were undermined by the results

10 of these tests.  So…

  1. DRIMER:  Q.  Thank you doctor you also indicated that you reviewed some documents during the course of your evaluation? A.  Yes I did.

15 Q.  And you can tell me what the nature of those

documents were?

  1. Yes ah well off the top of my head – I think there were three different, I think there were three different psychological evaluations that were 20 done.  There were several notes from a neurologist – no just a couple of notes from his urologist – neurologist.  There are a lot of notes from ARIF SAHINBAY’s psychiatrist whom he had seen for a few years before the accident and in particular there 25 was a, a, note from I think 18 days prior to the

accident from a psychiatric evaluation done by his psychiatrist showing that in fact at that point he was taking quite a lot of anti depressant medication, as well as two different – sorry he was taking the maximum dose of one anti-depressant, a moderate dose of another and two smaller doses of different kinds of tranquillizers and then Dr. Seba (ph) on that occasion (this is 18 days before) decided to increase one of the other antidepressants showing that in his estimation at that point Mr. Sahinbay certainly was in need of further   5 treatment.  Was there anything else I had other

than three psychologists?  There was a – I think there was oh yes there were records of a C.T. scan that was done at the time of the accident or just after the accident.  An M.R.I. that was done

10 sometime later, several months later and a few

years later, what’s called a Specs scan.  So those are all diagnostic images of the brain and I reviewed those – I didn’t review the actual images, I reviewed the reports.

15 Q.  Thank you and in your review of the

documentation, did you make any observations with respect to any inconsistencies um, things of that nature?

  1. Well there, there were – yes there were

20 inconsistencies in the sense that the – some of the

complaints – once again though you’ve got the problem this is being recorded by somebody else, so you know I’m, I’m not entirely sure where the problem lay, but we did, I did see inconsistencies 25 between various reports. I saw some inconsistencies

within reports where various health practitioners had noted that some of his reactions were inconsistent during the interview.

  1. Thank you and you, you’ve already eluded to some of your conclusions during the course of your testing, but could you just advise the jury based on the facts of the testing and the documents that you reviewed, the clinical interview that you did with Mr. Sahinbay, what opinions and conclusions you reached?
  2. Well going back to when I was asked which was

5 whether or not in my opinion Mr. Sahinbay had

suffered a serious and permanent impairment of an important psychological or mental function.  I, I felt that the information that I had collected about his depressive condition that I was able to 10 validate.  It seemed to show that his situation

from the point of view of depression and anxiety did, did not appear to be any worse than what I was able to gleam from the psychiatrist notes before the accident.  And in terms of the cognitive 15 problem, I was unable to find objective supporting

evidence of the complaints that Mr. Sahinbay had.  So I finally concluded that I could not find consistent clear evidence that as a result of that motor vehicle accident that Mr. Sahinbay had 20 suffered a serious and permanent impairment of an

important psychological function.

  1. Thank you doctor, is there anything else that you would like to add?
  2. I don’t think so no.

25 MR. DRIMER:  Thank you, Your Honour those are my

questions.

THE COURT:  Mr. Sahinbay just give me a minute.  Sorry doctor could you just give me your conclusion again?

  1. My conclusion?

THE COURT:  Yes.

  1. Yes I was – I concluded that based on the

various sources that I was talking about, I was unable to find consistent evidence of a serious and permanent impairment of an important psychological function.

5 THE COURT:  Okay, okay thank you Mr. Drimer.  All

right Mr. Sahinbay it’s your turn now to crossexamine Dr. Wyndowe.

ARIF SAHINBAY:  Sure.

10

CROSSEXAMINATION BY ARIF SAHINBAY: 

  1. Good afternoon.
  2. Good afternoon.

15 Q.  Welcome, I would like to ask you a question.  Three hours do you think enough ah for one person to assess and make that kind of determination?

  1. I, I yes I feel in terms of the things I was asked to establish, yes I felt that I had enough

20 time.

  1. So three, three hours is enough for, for like to get to this kind of conclusion?
  2. Of the things that I was asked to access yes…
  3. Yes.

25 A.  …and there’s certainly for example in areas of

personality, it’s not enough to make an accurate of assessment of the person’s personality and how they function in relation you need a lot more time than that.  That was not what I was asked but…

  1. Okay so do, do you think people can change all the time like one day feeling better the other day feeling much better, the other day feeling worse so this is happening right? A.  Absolutely.
  2. All the time right?
  3. Yes I believe there’s great variability.

5 Q.  I understand, so maybe that time when you were

making those tests the person feel worse so that means this gentleman is malingering the situation or how you, how you decide, how do you decide like if he’s honest or not?

10 A.  Well these tests are independent of how you

feel.  These tests simply determine what you can do and ah they’re, they’re designed to test how much effort somebody is putting into something and so it’s pretty much independent of how you feel unless

15 you know you’re almost comatose.

  1. Are they certain?
  2. Are they certain?  Well they have competence limits, which would say you know and I, I… Q.  Yes or no?

20 A.  …don’t know what the competence limits are?  But let’s say the competence limits are pretty high, but what they say they are quite specific, that is what they pretend to establish about an individual or very close.

25 Q.   Close but not right?  They are not certain?

  1. Well in this case their, they provide a threshold and if the score is significantly below the, the threshold, they have a, a, it’s a strong indication…
  2. Are they certain or not?  I, I still…
  3. I would say they are not certain.
  4. Okay this is the answer okay that I was

expecting. A.  Yeah.

  1. So you’re saying that ah – but you’re talking about, about that I don’t have any, any psycho –  5 psychological issues like…
  2. No, no I didn’t say that you don’t have any psychological issues, no I said did you – were you suffering a serious and… Q.  Yes.

10 A.  …permanent…

  1. Yes.
  2. …psychological impairment…
  3. Okay.
  4. …or impairment of an important psychological

15 function as a result of the accident.  No I, I did

find that you had certain problems, but I didn’t feel that they were any more significant than were established immediately before the accident.

  1. So yes okay there is some, some stuff after the

20 accident, but it doesn’t last long as you…

  1. It doesn’t?
  2. …it doesn’t last long?  That problem doesn’t last long right in your opinion?
  3. You mean as a result of the accident?

25 Q.  Yes.

  1. You know I didn’t comment on what had, what was going on immediately after.  All I could comment on really honestly is what I experienced when I examined you, which is what three years later?
  2. Yes, I don’t even remember you I’m sorry. I don’t remember you to see it like three years ago.  Well I would like to ask you something.  Ah, ah the pain, the pain, is there any affect to psychology?

Does pain have any effect to psychology?

  1. Pain has an effect on psychology, psychology has an effect on pain yes.

5 Q.  Yes both right okay.  So this is all my

questions, thank you very much.

THE COURT:  Just a minute from Mr. Drimer please.  Yes Mr. Drimer the one thing that we said we would do that we didn’t do, is that I said we would do

10 before you do reply or don’t do re-examination or

don’t, is that we need to exhibit those tools that Dr. Wyndowe uses, so do we have those around?  All right why don’t you take them and give them to the Registrar.  I think what we might want to do is do

15 we have a paper clip, maybe we’ll just staple them

together I think it’s all part of the same thing.  Why don’t you make – let’s give them a number and then if you can mark them A1 and what are we four now?

20 MADAM REGISTRAR:  Yes.

THE COURT:  Four A, B, C, D and we’ll just sort them out that way.  Actually you know what have you got a stapler?  Take the stapler and staple them together and just do it as one.

25 MADAM REGISTRAR:  Exhibit 4.

EXHIBIT 4 MALINGERING TEST EXAMPLES Produced and Marked 

THE COURT:  And I think we should also exhibit the Curriculum Vitae of Dr. Wyndowe.  Do we have a copy of that?  Well here you can take this.

MADAM REGISTRAR:  Exhibit 5.

  • EXHIBIT 5 DR. WYNDOWE’S CURRICULUM VITAE Produced and Marked  

THE COURT:  You should mark it Madam Registrar as

10 Curriculum Vitae and Form 53 which is different.

That is the first document which is important okay?

All right do you have any re-examination?

  1. DRIMER:  No thank you Your Honour I do not.

THE COURT:  All right Dr. Wyndowe, thank you very

15 much for coming down and helping us, we appreciate

  1. All right anything else for today?
  2. DRIMER:  Unfortunately no, Dr. Laio is not available this afternoon.

THE COURT:  And when do you think we can be 20 reasonably confident that she’ll be here?

  1. DRIMER:  We’re hopeful by about twelve thirty to one o’clock the latest tomorrow.

THE COURT:  All right.  Members of the jury we try when these trials start to keep them moving in a 25 consistent way, but we’re not always successful in

that.  We do need to recognize that some of the people that we rely on to help us have in these case busy practices that they need to deal with, and we can never be absolutely sure when they’re going to be required, and so we sometimes run into these kinds of problems.

In this case, Mr. Drimer has another doctor that he wants to call.  I gather she’s involved in giving some kind of presentation tomorrow morning and she’ll be seeing people as we speak.  So we have a

5 bit of an issue and we’re going to have to adjourn

until tomorrow at twelve thirty.  I can’t and I know Mr. Drimer can’t, but we’ve discussed this before guarantee that the doctor will be here.

We’re trying to get you here – if the doctor comes

10 and sits here for an hour and doesn’t do anything

that’s not going to work terribly well.  On the other hand if you come and sit for an hour that’s not going to make you too happy either.  So we’re trying to find the balance point and hope that we 15 get it right.  So I’m going to ask you to return at

twelve thirty tomorrow and we’re going to see how far we get.  I’m still hopeful that we might get you actually in deliberations tomorrow, we may not.

We’ll just have to see how it works.

20

This is the last witness, subject perhaps to any reply that Mr. Sahinbay may want to call. I don’t expect if he does that will take very long or delay us very much.  So when we work out the timing if we

25 start at twelve thirty, we think there’s a

possibility that we’ll get that far, but as with all things in these matters, I can’t really be sure.  So we’re going to do the best we can, we’ll try and keep you up-to-date as to how we’re doing with our scheduling.  I did say to you and I’ll just repeat, it’s not that we won’t be working for some part of the morning, there’s a couple of things we need to do in preparation for the file of submissions and in preparation for my charge, so we’re going to have a discussion among the three of us sometime over the course of the morning,

5 probably take about an hour.  I think I’ll probably

have you come at eleven something like that to make sure that we get that we get all that in place so that we’re ready to continue smoothly at the end if that’s what’s required.

10

So thanks for your attention, I’m sorry about the delay tomorrow, but we’ll see you tomorrow at twelve thirty and do the best we can and see how far we get.

15

…JURY RETIRES  (2:52 p.m.)

THE COURT:  All right so I’m going to want to get the questions finalized in the morning and I’m

20 going to want to try tonight to finish a draft of a Charge to the Jury.  I like to show those to the people involved beforehand so we minimize the risk of some confusion which requires the jury to come back and have their attention drawn to something 25 that’s not that important.  So I want to be ready

at twelve thirty to move from there as far as we can get.  Mr. Sahinbay I want to be very clear about what’s going to happen tomorrow so there’s no misunderstanding between us.

ARIF SAHINBAY:  Okay.

THE COURT:  You’re going to be here at… ARIF SAHINBAY:  Eleven.

THE COURT:  …eleven o’clock.  I’m not promising that I will be, I have to get this charge done before I come, but I would like you to be here at eleven and I’m going to do my best.  What will   5 happen then is I want you come some questions ready

to go.  I think – I’d like you to talk to Mr. Sahinbay about them, but in the final analysis you’re going to have to look to me I think to decide them in this particular case it won’t be as

10 easy because Mr. Sahinbay will have some concerns

and he will I think need some explanation from me about what we’re doing.  Then I’m going to give you the draft of the charge.  I’m going to give you a chance to read it and then we’re going to have a 15 conversation about it, about any questions you may

have about it either of you.  I will change things because of those questions or I won’t, deciding on what I think is appropriate.  Then I’m going to ask for the drafts back because they’re not something 20 that becomes public, they’re just to assist us in

understanding what I’m doing.  Do you understand Mr. Sahinbay I’m giving you what I’m going to say so you can read it over.

ARIF SAHINBAY:  Okay.

25 THE COURT:  I’m going to expect the two of you to

be ready to make your summations immediately at the end of this case, there isn’t going to be any delay, I’m going to have people prepared.  You’re going to prepare before then.  If we get that far and the jury’s been charged, we’re then while they go out we’re going to talk about the threshold material that you were given yesterday that we discussed.  The cases and the fact, do you remember all that Mr. Sahinbay?

ARIF SAHINBAY:  Yes I do.

THE COURT:  And we’ll just see how we’ll do.  There

5 will be a point where it’s just too late to ask the

jury to start.  I’m not sure when that is.  I won’t know that – I won’t have a sense of it until we get there, but it’s possible that I will stop my charge two sentences before the end so that I don’t finish 10 it so that they can go home for the night and come

back on Thursday.  We’ll just have to see.  All right?

  1. DRIMER:  Yes.

THE COURT:  Okay so I’ll see you tomorrow morning.

15 You will be here tomorrow morning at eleven.  I

plan to be, but I may be a bit late I have some other things I need to get done.    MR. DRIMER:  Thank you Your Honour.

THE COURT:  Okay we’ll see you then.

20

…ADJOURNED (2:55 p.m.)

Court of Appeal No. C57948

SUPERIOR COURT OF JUSTICE

5 B E T W E E N:

ARIF SAHINBAY and DILEK SAHINBAY

Plaintiffs

10 – and –

RICARDO DA SILVA and ISILDA DA SILVA

Defendants

15

P R O C E E D I N G S   A T   T R I A L

20 BEFORE THE HONOURABLE MR. JUSTICE T. LEDERER

AND a JURY on NOVEMBER 19, 2104 at TORONTO, Ontario.

25APPEARANCES:
A. Sahinbay Self-Represented
A. Drimer Counsel for R. Da Silva
and I. Da Silva

WEDNESDAY, NOVEMBER 19, 2014 (11:09 a.m.)

THE COURT:  Okay we have to bear in mind that one of the jurors cannot stay today beyond 4:30, so I

5 still think we should be able to get this done

because if I work it out in my own head.  If the doctor’s here by 12:30, I’m not sure why we can’t get it to the jury by 2:30.  Are you with me, Mr.

Sahinbay?

10 ARIF SAHINBAY:  Yes, I am.

THE COURT:  Somebody has to stand up when I’m talking.  I don’t care who, but somebody.  Okay.  Thanks.  Just to be clear about this, I guess I’m addressing this, Mr. Drimer, to you as much to Mr.

15 Sahinbay.  I really believe that what we do here is

important.  I think that we exhibit to the people who don’t come here every day, as we do, that we understand it’s important by recognizing the formalities of the Court.  I don’t ask that you

20 have any respect for me personally, you don’t know

me, but I do ask that you have respect for the office that I hold.  Thank you.  So I want somebody to stand up when I’m talking to them.

  1. DRIMER:  Sorry.  I apologize, Your Honour.

25 THE COURT:  Okay perfect.  So that’s the first

thing.  The second thing is, in furtherance of all of that, I want to see if we can get the issue of the jury’s questions answered and I have a draft of the address which I’m going to give you.  It obviously has to be reworked at some point to account for the witness I haven’t heard, but I think it’s not bad at the moment.  I’m going to give it to you to read after we do the questions.

So let’s do the questions.  I’m going to tell you,

I’ve actually prepared questions of my own because

5 this is the way I thought it should be done.  You

can give me yours and I’ll look at them or I can give you mine.  I don’t really care.  We can trade.

  1. DRIMER:  I can trade.

THE COURT:  Have you shown these to Mr. Sahinbay

10 yet?

  1. DRIMER:  I – I have.  I had a – as I indicated earlier, I had about 10 questions earlier.  I removed all the negligence questions.  I – I’ve simply now got questions on damages.  It covers the

15 various heads of damage and my – I seek guidance

from Your Honour as to whether…

THE COURT:  Why don’t you show me what you’ve got?  MR. DRIMER:  Yes absolutely.

THE COURT:  If I like yours better, I’m never going

20 to give you mine.

  1. DRIMER:  Yes.

THE COURT:  Mr. Sahinbay, do you understand what this is?

ARIF SAHINBAY:  Yes, I do.

25 THE COURT:  Okay.  We’re on the same wavelength.  I

like mine better for a reason that will be apparent to you so I’m going to give them to you.  Now we can have a talk about both sets together and see where we’re going to go.  Okay?

  1. DRIMER:  Thank you.

THE COURT:  I like mine better because they’re more incremental and because, frankly, I don’t – I’m going to have to talk to Mr. Sahinbay about this, but I don’t think asking them to deal with costs other than general – oh, you’ve actually done it – yes, I don’t think future care medical costs are –

5 there’s no evidence of any of that here and I’m not

sure why I’d be asking to talk to Mr. Sahinbay about that. So let me explain to you these questions and, Mr. Drimer and Mr. Sahinbay, you don’t need to like what I’ve done.  Okay?  It’s

10 just what I’ve done.

  1. DRIMER:  I’m sorry.  Could I interrupt for a moment?  I only have questions three and four on this page.

THE COURT:  You should have well that won’t help

15 you.  Have you got…

  1. DRIMER:  Oh, Mr. Sahinbay’s got one and two and I’ve got three and four.

THE COURT:  Oh, I see.  No, no, no.  Okay sorry.

Hang on.  There should be another set here.  Just

20 give me a second.  I’ve got one myself.  Maybe I

didn’t do that for two.  No, that’s really interesting.  Just a minute, just a minute, just a minute.  Okay.  I’m going to need another copy of those two pages.  All right, so what I’ve done is –

25 I don’t have it in front of me, so I’m going from

memory but the proposition is, Mr. Sahinbay, first of all the evidence here suggests that you’ve had some difficulties over time.  You have difficulties today.  You say that those difficulties or some of them are directly attributable to the accident okay?

ARIF SAHINBAY:  Yes.

THE COURT:  If they’re not attributable to the accident, you don’t get anything.  There are no damages to be awarded.  So the first question the jury has to decide, I think, is do they agree that

5 any of the difficulties you’re having are

attributable to the accident which is – read the first question, Mr. Drimer, because I don’t have it.

  1. DRIMER:  Did Arif Sahinbay suffer any injury or

10 damage as a result of the accident which took place

on April 9, 2010.

THE COURT:  So it stands to reason that if the answer to that question is no, there’s no purpose in going any further.

15 ARIF SAHINBAY:  True.

THE COURT:  All right.  So you can see what I’ve written in upper case follows, right?  On the other hand, if the answer is yes, it seems to me before you can assess the damages, Mr. Drimer, you need to 20 know what damages you’re assessing or what injuries

you’re assessing.  So and in Mr. Sahinbay’s case, he is claiming some quite different sorts of injury.  He has made reference to some physical injuries.  He talked about the left side – he

25 described it as the left side of his head down to

his shoulders – thank you very much – and then there’s the psychological issues, which are he equally attributes in some way to the accident.  So that’s quite different and I think the jury has to apply its mind to, “What are we assessing damages for?” before we can ask them to do it.

Hence the second question.  Are you with me so far?

  1. DRIMER:  Yes.

THE COURT:  And then the third question – and the different lines under the question, although I don’t actually list them but I thought I first

5 needed to do this but I put in the examples to tell

them because I wanted to get that distinction.  So it’s back, shoulder, psychological are just examples of what Mr. Sahinbay’s asking for.  Mr.

Sahinbay, are you with me so far?

10 ARIF SAHINBAY:  Yes.

THE COURT:  So question two is, “If you agree that there was something that happened as a result of the accident, what was it really?” and it asks them to list them so that they know what they’re talking

15 about when they get to question number three which

is the question about general damages, basically how much for pain and suffering?  The second question is how much for loss of income, which we have had some discussion of here.  I’m going to

20 tell you and you’ll see this in the jury charge – Mr. Sahinbay, listen to me, please.

ARIF SAHINBAY:  Yes.

THE COURT:  That the one thing that hasn’t happened here about income is there has been no mention of

25 numbers.  So even if they find there’s a future

income loss, I’m not quite sure how they’re going to do this, but you’ll see how I’ve dealt with that in the jury charge. Well the third thing is and that’s it.  I didn’t – initially I put in special damages.  You’ll see in the jury charge that I’ve mentioned them, but there are no invoices, as we’ve discussed before, so there is no special damage claim and I don’t think there’s any future care claim here because there’s no evidence.  Nobody has said anything about it.  Are you with me?

ARIF SAHINBAY:  I’m not agree with you.

5 THE COURT:  Well, I’m sorry, Mr. Sahinbay.  I knew

you were going to say that but I’m going to tell you, there is no evidence here upon which anybody could make a judgment that you will need future care.  There is no evidence like that.

10 ARIF SAHINBAY:  The evidence is here, sir.

THE COURT:  No.  Those things actually don’t do what you say they do.  Is that the MRI reports?

ARIF SAHINBAY:  No, this – this is the OCF19 that I’m going to file here in the Court.

15 THE COURT:  I don’t think so.  Have you told me –

not now.  Your case is over.  It’s too late for that.

ARIF SAHINBAY:  Two pages.

THE COURT:  It’s not a question of who it is or

20 what it is or how long it is.  Mr. Drimer, do you

know what he’s talking about?

  1. DRIMER:  I – I’ve seen that document before.  It’s an added application for catastrophic impairment.

25 THE COURT:  Pardon me?

  1. DRIMER:  It’s an application for a determination of catastrophic impairment that goes to Unica…

THE COURT:  Okay.  I don’t need to see it.  That has got nothing to do with anything.  You can make that claim for statutory accident benefits based on – that’s what I take it is, it’s for the elevated statutory accident benefits?

  1. DRIMER:  Yes.

THE COURT:  That has nothing to do – you can apply

5 for catastrophic impairment to the statutory

accidents benefits scheme.  That has got nothing to do with what’s happening here.  Nothing.  I’m sorry.  I can’t do this for you.

ARIF SAHINBAY:  May I…

10 THE COURT:  You’ve mentioned future income.  I

think you’ve got a problem because you mentioned what you were earning, but we’ll see if we can work a way around that.  You’ve certainly got some general damages, assuming that they’re attributable

15 to the accident.  You’ve got a claim for that.

There’s nothing else here.

ARIF SAHINBAY:  May I speak?

THE COURT:  Of course.

ARIF SAHINBAY:  So you know what catastrophic

20 means, right?

THE COURT:  I get your pardon?

ARIF SAHINBAY:  Cat – do you know what the cat means, catastrophic means?

THE COURT:  Yes, I know what it means.

25 ARIF SAHINBAY:  Okay.  So this is 55 per cent of my

whole body.

THE COURT:  Yes.

ARIF SAHINBAY:  Okay… THE COURT:  I know.

ARIF SAHINBAY:  …disabled.  This has been signed by the specialist and that means that he declared that I’m catastrophic and this is – so, sir, this paper is not like anybody can sign this.  This – this is something.  This is serious.

THE COURT:  Well, it’s too late and it’s too things.  First of all, it’s not evidence.  It’s

5 just an application form.  Nobody has recognized

that you have a catastrophic impairment and if you had, you’ll get some elevated money from the statutory accidents benefits scheme it won’t help you here.  Mr. Drimer, am I missing anything?

10 MR. DRIMER:  No.  In fact, he’s not been deemed

catastrophic by Unica Insurance and if he was it would actually act as a credit towards any damages that he receives in this matter, so it’s…

THE COURT:  I’m sorry, that’s not going to help

15 you.  It doesn’t create any future – and even if it

did, there has to be somebody here to say he will need future care and describe what that care is going to be.  There are experts who do that sort of evaluation.

20 ARIF SAHINBAY:  This is also for the threshold

meets.

THE COURT:  Well, that’s a different thing.  We’ll get to – I understand it’s relevant to threshold.  We’ll get to the threshold after the jury is out.

25 That’s a different question.

ARIF SAHINBAY:  No problem.

THE COURT:   That’s a different question.  Okay so those are the questions.  Mr. Drimer, before I get to Mr. Sahinbay on this, I think I prefer my questions.  If you don’t like them, you tell me.

  1. DRIMER:  No, I think these are proper Your Honour.  Thank you.

THE COURT:  Okay.  So Mr. Sahinbay, I’m going to just explain to you now.  I want to be really clear that you understand what this is.  Okay?  So I don’t know how familiar you are with the Court

5 process.  I’m going to assume not very familiar.

ARIF SAHINBAY:  No, I’m not.

THE COURT:  All right.  So you probably know or you may know, just from watching television most people know, that if you have a criminal trial somebody’s

10 accused of something…

ARIF SAHINBAY:  Yes.

THE COURT:  …there’s a finding by a jury that says, “You’re guilty,” or, “You’re innocent.”  It’s a very simple question.  It may not be a simple

15 answer, but it’s a simple and it’s a direct

question.  In a civil trial like this we don’t do that.  We need to – we need to direct the jury in a more detailed way, in a way that’s more specific to the inquiry that they’re making because every case

20 is different, every accident is different.  So what

we ask the jury to do is to answer certain questions in order to direct them in a way that helps us ultimately answer the questions we need to answer to come to a judgment.  Okay? So these

25 questions reflect on a progress of answers that

will take us to what we need from them.  So I’m going to just go through the questions with you again.  I know I’ve done this already, but I want to make sure I talk to you about it directly. As I have said, I think you agreed at the time I said this, you’ve had in your life, as I understand it listening to the evidence, a series of problems at different times.  You’ve had depression for some time and you have given evidence that you were getting better and that just before the accident you were feeling a lot better.  I feel obliged to

5 say to you that Mr. Drimer has called some evidence

that suggests something different, which is you were still taking a lot of antidepressants at the time and that 18 days before your prescription was increased.  It will be up to the jury to figure out

10 all of that and what it all means.  But the first

question that we need to know is does the jury agree with you that some of the problems you are having are attributable to the accident, were caused by the accident or were made worse by the

15 accident because, if they weren’t, then you don’t

have a claim against Mr. Da Silva.  You may have a claim against somebody else.  I wouldn’t know that.

ARIF SAHINBAY:  I understand.

THE COURT:  Okay so if their answer to this

20 question is no, that will be the end of this.

ARIF SAHINBAY:  Okay.

THE COURT:  If the answer is yes, then we have to go on and the next question is, what are the injuries you suffered as a result?  Is it your back

25 which you complained about?  Is it your shoulder

which you spoke about?  Is it the psychological problems that you have continued to have?  They need to answer those questions because when we come to ask them how much is it all worth, we need to know what they’re thinking about.  Are they just thinking about your shoulder or are they thinking about your shoulder and the – so they’re going to list which of those things they say have been made worse.  Do you understand?

ARIF SAHINBAY:  Yes.

THE COURT:  All right.  And then, if you go to

5 question three which is probably, for your purposes

if we get there, the most important question – and I’m going to have something to say about what general damages are and I’ll show you this in a minute in what I’m going to say to the jury.  It’s

10 what are they going to award for general damages

and that’s what this question is.  And the second question is what about loss of wages, which is the other thing that has been discussed here.  So those are the four questions.  When we get those answers,

15 we’ll know where we are.  Do you understand, first

of all?

ARIF SAHINBAY:  Yes, I do understand but I don’t understand the – the amount.  What amount are we talking about from?

20 THE COURT:  The amount of money, how much money.

ARIF SAHINBAY:  For the Statement of Claim or… THE COURT:  No, no, no.  How much money do they decide you should get.  So if they write down the number a thousand dollars, then they’re saying you

25 should get a thousand dollars for the general

damages.  Now, you may not get that because we still have the threshold question that we need to worry about, but that’s that – it’s not the Statement of Claim.  It’s their decision as to how much they think you should be awarded.

ARIF SAHINBAY:  I understand.

THE COURT:  Okay.

ARIF SAHINBAY:  So what about the Statement of Claim?

THE COURT:  The Statement of Claim is just your indication of what you’re asking for.  If I can put

5 it this way, we’re past that now.

ARIF SAHINBAY:  Are they aware of that Statement of Claim?

THE COURT:  No.

ARIF SAHINBAY:  Are they going to – aware of that

10 Statement of Claim?

THE COURT:  No.  They haven’t seen the Statement of Claim, I think.  I don’t suppose there’s any reason why they can’t.  If you want them to get the Statement of Claim, you can give it to them but I’m

15 going to tell you this.  I wouldn’t do it – well, I

should be careful.  I shouldn’t be giving you legal advice, but I’m just going to tell you this.  A Statement of Claim is what you say happened.  An awful lot of what you say you haven’t proved here.

20 You’re better to leave them with what has been –

well, you decide what you want to do.  I’m going through it.  I’m not giving you legal advice.  I’m going to get myself into trouble.  Typically, we wouldn’t give the jury the Statement of Claim.  I

25 can’t think that I ever have.

  1. DRIMER:  I would only ask that if the claim is provided that the defence be provided as well, just so that the jury is aware of both…

THE COURT:  Yes.  And you know what?  I’m not going to do it.  I don’t think it’s going to help you and I’m not prepared to have them get the statement.

The Statement of Claim doesn’t mean anything.  It’s

just your suggestion of what you think you should have gotten.  We’re past that now.  Now we’ve got proof of what has actually happened, not just what you say in the claim happened which is way back

5 before discoveries, before everything.  So no, I’m

not going to give them the claim.

ARIF SAHINBAY:  Well, we are in the middle of the process and nothing has been passed, sir, since this trial has not finished yet so I have right to

10 ask this from, from…

THE COURT:  Ask?  What are you asking me? ARIF SAHINBAY:  I’m asking you, like, giving them the Statement of Claim… THE COURT:  All right.

15 ARIF SAHINBAY:  …to get them the idea of what’s the

amount of, of the damages.

THE COURT:  No.  You’re allowed to – there’s a different way of doing this.  You are allowed, the person who makes the submissions is allowed to give

20 to the jury a range.  If you were a lawyer, you

would give a range of what you think is the appropriate amount.  You’re allowed to do that, but I’m going to warn you this.  If you give an amount that’s unreasonable, the next thing that’s going to

25 happen is I’m going to tell them it’s unreasonable.

So you need to be a little careful about this and I’ve been thinking about this a bit myself overnight, about the whole business of a range and whether I should give them a range.  I’m going to talk to you – I was going to talk to you about this when we get to the charge.

I haven’t put one in and I haven’t put one in because it seems to me that there’s an extraordinary breadth of things that could happen here.  The range is quite different if they say you   5 injured your shoulder, but not your psychology.  If

they say they injured your psychology, it’s a completely different question and I don’t want to confuse them with all of that.  So I don’t propose to do that myself.  I could.  The law would allow

10 me to.  Mr. Drimer may, we’re going to get to that.  The law would allow him to and the law would allow you to say, “This is what I think is a reasonable range,” but, as I say, you need to be careful because you don’t have the experience to know

15 what’s a reasonable range in the law and if you say

the wrong thing here, they’re going to be told that by me which would not advantage your case particularly.  So you think about what you want to do?

20 ARIF SAHINBAY:  What’s the reasonable then, sir? THE COURT:  What is the – well, it depends.  That’s what I say.  I’m not going to do it, because I’m finding it very difficult.  Are you inclined to do it?

25 MR. DRIMER:  I was – in my argument, I was going to

be saying that if the jury determines that the injuries were not caused by this accident then the amount that should be awarded should be zero. THE COURT:  Well, you don’t need to say that because the way these questions are phrased, if the answer is no, they’re never going to get to that question.

  1. DRIMER:  Right.

ARIF SAHINBAY:  Yes.  No, I’m talking about the – the – did we pass that?  Okay assume that they say yes?

5 THE COURT:  So how much – maybe we should do it

this way.  We’ve agreed these are the right questions.  Now we’re just trying to figure out what ifs.  So now we’re moving to what people are going to say.  So before we talk about that, I

10 think you should know what I’m going to say.  Maybe

that’s the better way to do this.

ARIF SAHINBAY:  Okay.  That’s what I want to know.

THE COURT:  So I’m going – pardon me?

ARIF SAHINBAY:  That’s what I want through on this.

15 THE COURT:  So I’m going to – here you go.  This is

a draft.  I want it back.  It’s not a public document.  It’s just so that you have a chance to see something beforehand.  All right?  I’m going to give you – when – we’re hoping the doctor will be 20 here at?  When do we tell the jury?

  1. DRIMER:  Twelve thirty, we’re hopeful. THE COURT:  Tell the jury 12:30.  Okay.  So I’m going to give you about 20 minutes to read it.  Is that fair?

25 ARIF SAHINBAY:  Yes.

  1. DRIMER:  I think it is.

THE COURT:  All right.  I mean, I don’t want to rush you.  You – sit down, Mr. Sahinbay. ARIF SAHINBAY:  What’s this for exactly?

THE COURT:  That’s what I’m going to say.

ARIF SAHINBAY:  Okay.

THE COURT:  When you – what’s going to happen when the evidence is over, because normally we expect you to go first but as soon as Mr. Drimer calls evidence, which he’s done, we change the process.    5 So Mr. Drimer’s going to go first, which gives you

the chance to have the last word.  So you can – if you don’t like what Mr. Drimer says, we give you the option to indicate to the jury why you disagree.  That’s why he goes first and you go

10 last.

ARIF SAHINBAY:  Okay.

THE COURT:  After you’re finished, I get to speak.

ARIF SAHINBAY:  Sure.

THE COURT:  That’s what I’m going to say, more or

15 less.  That’s what I think I’m going to say may be

a better way of putting it.  Okay?

ARIF SAHINBAY:  But it is up to me whether I’m – I’m mentioning about the amount or not.  It’s up to me?

20 THE COURT:  You can mention an amount, but I’m

going to want to talk to you about that beforehand because if this gets – I’m nervous because you don’t have the experience to know what the right amount – what the range is, and if you’re going to

25 ask for an amount that’s extraordinarily high I’m

going to say so and I’m going to give you a chance to reconsider what you want to do before you do it.

ARIF SAHINBAY:  Okay.  Ranges are already on the Statement of Claim, so the Court has been – accepted that Statement of Claim so that means… THE COURT:  No, the Statement of Claim has nothing to do with what you’ve proven.  The Statement of Claim comes before there has been discovery, before documents have been exchanged, before we’ve a day of trial.  The Statement of Claim just sets the limits so the defendant knows the kind of case he

5 needs to meet.  It has nothing to do any longer

with what has actually happened.  What did you ask for in the Statement of Claim?

ARIF SAHINBAY:  No.  As evident, I think, it says $3,200,000.

10 THE COURT:  Don’t go there.

ARIF SAHINBAY:  And this estimate hasn’t been done by me.  I didn’t… THE COURT:  Don’t go there.

ARIF SAHINBAY:  …I didn’t ask this price.

15 THE COURT:  Don’t go to $3,000,000.  They’re going

to be told pretty quickly… ARIF SAHINBAY:  Mm hmm.

THE COURT:  …that that isn’t going to work and they’re going to know, without any help from me,

20 that…

ARIF SAHINBAY:  Okay.

THE COURT:  …three million dollars is just – we’re not in that ballpark and you’re not going to help your case by trying to suggest you are.

25 ARIF SAHINBAY:  Sir, I’d rather say that because

this is not my opinion.  That $3,200,000, I didn’t put there.  This has been estimated by a lawyer. THE COURT:  You know what?  Mr. Sahinbay, you do what you want to do.

ARIF SAHINBAY:  Thank you very much, sir. THE COURT:  But you’re going to make this a bigger problem for you than it needs to be.  You better think about what you’re going to do.  You better rethink it seriously.  Okay.  All right?  You read that over.

ARIF SAHINBAY:  Sure.

5 THE COURT:  I’m going to come back in 20 minutes.

R E C E S S

10 …U P O N  R E S U M I N G

THE COURT:  Okay.  So have you read this?

  1. DRIMER:  I have.

THE COURT:  And do you have any comments?

15 MR. DRIMER:  I don’t, no.  It looks to be in order, Your Honour, thank you.

THE COURT:  Mr. Drimer, you’ve read this?  Sorry, Mr. Drimer.

  1. DRIMER:  I apologize, Your Honour.  The Court’s

20 indulgence, please.

THE COURT:  That’s okay.  Mr. Sahinbay, have you read this?

ARIF SAHINBAY:  Yes, I did.

THE COURT:  Okay have you got any comments?

25 ARIF SAHINBAY:  Even if I have comments, does it

matter for you?  Is it going to change anything? THE COURT:  It can.  It depends what your comments are.

ARIF SAHINBAY:  My comments are first of all, there’s no amount here.

THE COURT:  That’s right.

ARIF SAHINBAY:  This is my first comment.  The second is it was, like, a little bit sides – sided.

Sided.

THE COURT:  Sided?

5 ARIF SAHINBAY:  Yes.

THE COURT:  In whose – why do you think it’s sided? ARIF SAHINBAY:  I think it’s sided because of the um, um…

THE COURT:  What page are you on?

10 ARIF SAHINBAY:  Okay.  I couldn’t – I didn’t mark

down because of…

THE COURT:  No, take your time.

ARIF SAHINBAY:  …you didn’t… THE COURT:  Take your time.

15 ARIF SAHINBAY:  This special damages…

THE COURT:  Mm-hmm?

ARIF SAHINBAY:  Do I have to get invoice from my wife that taking care of me – when she was taking care of me?

20 THE COURT:  It’s too late for that.  That would

have been a Family Law Act

ARIF SAHINBAY:  You are asking invoice. THE COURT:  That’s correct.  But what you’re talking about in relation to your wife would be her

25 Family Law Act claim.  You don’t charge your wife

to look after you.  That’s what the Family Law Act is for.  We went through that at the beginning.  You decided not to call your wife to give evidence.

There’s nothing you can do about that now.

ARIF SAHINBAY:  So this friend of me.

THE COURT:  Yes?

ARIF SAHINBAY:  He has been with for me for five years.

THE COURT:  Yes?

ARIF SAHINBAY:  So do I have to get invoice from

5 him?

THE COURT:  It’s too late now.  I told you at the beginning you need invoices.  You don’t have any.

There’s nothing I can do.

ARIF SAHINBAY:  He’s not a business.  He can’t give

10 any invoices.

THE COURT:  It’s too late.

ARIF SAHINBAY:  You are talking about the invoice, sir, specifically.

THE COURT:  Yes, I am.

15 ARIF SAHINBAY:  He’s – he’s friend of mine and he’s

not a business and he doesn’t have this kind of business to give invoice.

THE COURT:  Well…

ARIF SAHINBAY:  It doesn’t make sense to me.

20 THE COURT:  Then he doesn’t have a claim.  Then

there’s no claim.

ARIF SAHINBAY:  Okay.  Well, you know what?  I’m here to rely on this law.

THE COURT:  I beg your pardon?

25 ARIF SAHINBAY:  I’m here to rely on the law of

Canada as a Canadian citizen and now I see some points where we come and you don’t accept my reports.  You don’t do this, that.  It’s up to you to accept my report, but you – you say no, you don’t want to.  Okay.  That’s fine.  If you don’t want to accept, you don’t want to accept.  What am I going to put?

THE COURT:  Mr. Sahinbay, there’s a record of everything that has been said since this trial began and I think – I believe that the record, if it’s ever read by anybody, will demonstrate that I

5 have bent over backwards to be fair to you.  That I

have bent over backwards to explain to you the difficulties in your case.  I gave you – even after the selection of the jury, I gave you the chance to stop this and get it organized in a way that’s just

10 more consistent with what our Rules require.  This

isn’t a question of my not doing what you want.  This is a question of your not doing what I told you would have to do, which is try to understand the Rules that govern what happens here.  I’m not

15 concerned about accusations you make against me

because I know how hard I’ve worked to make sure that you understand what’s going on here and to be fair to you.  So it isn’t going to get you anywhere now at the end of the day, after I told you you 20 would have problems with these reports, after I

told you you could adjourn this matter to get all of this arranged and you refused to do that.  It’s too late now and you’re not going to get anywhere blaming it on me.

25 ARIF SAHINBAY:  Did you have power to accept this

report?

THE COURT:  I’m not going back there, Mr. Sahinbay.

We’ve dealt with those reports.  It’s over.

ARIF SAHINBAY:  We all know…

THE COURT:  It’s over.  The only thing… ARIF SAHINBAY:  We all know that you have power, sir.

THE COURT:  I beg your pardon?

ARIF SAHINBAY:  You didn’t use that power.  That means you are not fair to me, so you’re not fair to me.

5 THE COURT:  I beg your pardon?

ARIF SAHINBAY:  We all know that you had power to accept these reports no matter what defence counsel says. THE COURT:  Okay.  Do you have anything more to say

10 about what I’m going to say?

ARIF SAHINBAY:  No, that’s it.

THE COURT:  I beg your pardon?

ARIF SAHINBAY:  That’s fine.  I don’t have to say anything more.  I don’t have to say anything more,

15 sir.

THE COURT:  You don’t have to say anything more. ARIF SAHINBAY:  I mean, I don’t – I don’t say anything.  There’s nothing to say, okay?

THE COURT:  Mr. Drimer, have you got anything else

20 you want to say?

  1. DRIMER:  I don’t, no Your Honour.

THE COURT:  Okay so what’s going to happen is – yes, I’m going to want that back.  I… ARIF SAHINBAY:  I already gave…

25 COURT REGISTRAR: Sorry, thank you.

THE COURT:  Thanks.  We’re going to wait now for the witness to come.

  1. DRIMER:  She has – she has arrived.

THE COURT:  She arrived?

  1. DRIMER:  Yes.

THE COURT:  Oh, perfect.  Okay.  Well, then let’s – is the jury here?  They won’t be here until 12:30.

Yes, well, you’ll have to apologize to the witness.  I’m not sure what else you can do.  So we’re going to adjourn until 12:30.

ARIF SAHINBAY:  No problem.

5 THE COURT:  We’re going to hear the last witness.  I’m going to hear your submissions.  I may need a break because I may need to – given this comment about amounts, I may have to think about what to do about that and whether I’m going to say anything.

10 I’m going to tell you one thing, Mr. Sahinbay, in

the hopes that you’ll reconsider this thing about $3,000,000.  Three million dollars is so far removed from what the Courts would ever do in this situation that you will not help your credibility 15 with this jury, I think if you ask for that.  I’m

going to tell you that those are the kinds of dollars we give to people who can’t do anything but sit in wheelchairs by themselves and need 24-hour care.  We don’t give these kinds of dollars to

20 people in your situation.  You rethink that,

because if you do that I don’t think you’re going to help yourself.

ARIF SAHINBAY:  So unless you put something there…

THE COURT:  I’m going to put something, but it’s

25 not going to be anything you like given the numbers

you’re looking for.  The kinds of numbers that people get, for example for a two-week shoulder injury – and you haven’t said anything about it lasted – is about one to four thousand dollars.  The typical run for a whiplash injury which runs about 12 weeks is about four to fifteen thousand dollars.  We’re not talking anything connected to what you appear to think this is all about, to say nothing of the problems you’ve got in proving your case in the first place.  So you’re just not understanding what the parameters are.  If I start   5 mentioning numbers, those are the kinds of numbers I’m going to be mentioning and I chose not to do it because I wanted to leave it open to the jury without any influence from anybody.  But if everybody else does it, I may have to.  I’ll have 10 to make that judgment after you’re finished.

ARIF SAHINBAY:  Okay.  One question I have.  What’s the amount of the brain damage, sir?

THE COURT:  That one I can’t tell you.

ARIF SAHINBAY:  What’s the price of the…

15 THE COURT:  That’s the problem.

ARIF SAHINBAY:  What’s the price of the health? THE COURT:  All right.  I beg your pardon? ARIF SAHINBAY:  What’s the price of the health, health of the human?

20 THE COURT:  Well, one of the problems and one of

the things that you’ll have read here – you know, I don’t think I’m going to have a philosophical debate with you about how this works, so I’m just going to say one more thing.  We know that when

25 people are injured we can never, by putting in

money, return them to where they were when they started.  No amount of money will do that.  So when we award damages, that’s not what we’re trying to do.  We’re just trying to be fair to people, to give them some reasonable compensation for the suffering.  We don’t pretend that it returns people to where they were.  We can’t do that.

ARIF SAHINBAY:  My health is priceless.  I’m sorry.

THE COURT:  All right.

ARIF SAHINBAY:  Thank you very much.

THE COURT:  Well, you’re going to do what you think

5 is right.

ARIF SAHINBAY:  Thank Your Honour, yes sir thank you.

THE COURT:  I can’t do any more than that.

  1. DRIMER:  Your Honour, if it pleases the Court,

10 I have one additional case for the threshold motion

which I neglected to put in to you.  It has been provided to Mr. Sahinbay.

THE COURT:  You have to…

ARIF SAHINBAY:  Yes, I have to say something to say

15 about all of this later on.

THE COURT:  About all of what?  All of what?

ARIF SAHINBAY:  Threshold.

THE COURT:  The threshold.  Well, we’ll get to the threshold.

20 ARIF SAHINBAY:  Okay so also I would like to file

this one.

THE COURT:  No.  Too late.  Your case is over.  Well, no, sorry.  You get to – sorry, that’s not actually quite right.

25 ARIF SAHINBAY:  I don’t understand…

THE COURT:  Let me just think about that for a minute.  I’m sorry.  Just let me think for a minute.  After this witness is over, we could have reply.  I mean, Mr. Sahinbay has a right to reply.  So if you’ve got some pictures you want to produce in response to the picture that we’ve seen – I don’t know what that is.

:  The plate is here.  The, the… THE COURT:  Which car is that?

ARIF SAHINBAY:  That’s his car.

THE COURT:  His car.

5  ARIF SAHINBAY:  Okay.  This pictures came from the

lawyer, Joanna Blacklock.

THE COURT:  I don’t – show them to Mr. Drimer.  Mr.

Drimer, here’s the situation.

ARIF SAHINBAY:  Mr. Drimer didn’t know who is

10  Joanna Blacklock.

MR. DRIMER:  No, no.  I know who Joanna Blacklock.

ARIF SAHINBAY:  You said you didn’t know, so sorry. MR. DRIMER:  The issue is I don’t know who took this photograph?

15  THE COURT:  Okay.  Mr. Drimer, you’re going to have

to consider what you’re going to do about this in the broadest way.  We’ll get to it when we get to reply.  All right?  But let’s get this witness finished. If you want to produce this, you’ll have 20  to come back up here, explain what they are.

ARIF SAHINBAY:  Sure.

THE COURT:  Mr. Drimer may object to them.  He may not.  I’ll have to decide what to do.

ARIF SAHINBAY:  Okay.  Thank you very much, sir.

25  Fair enough.

THE COURT:  Anything else?  I can’t think what else we need to do now.  Anything else?

ARIF SAHINBAY:  I would like to file also OCF-90, sir. THE COURT:  Is that what we were talking about before.

MR. DRIMER:  The catastrophic application.

THE COURT:  Let me see it.  I don’t think you can, but just let me have a look and see what it is.

ARIF SAHINBAY:  It says for – okay, here.  There.

THE COURT:  This Mr. Sahinbay, this is just an

5  application.  It isn’t a finding.  It’s not a

report.  It’s not a determination of anything.  It’s just an application for an elevated – when you make this kind of application, what you’re saying to the statutory accident benefit people who look

10  at this sort of thing, and the insurance companies,

is, “I was catastrophically impaired.  That entitles me to more money than I have been getting under the statutory accident benefits scheme.”  Somebody has to assess it and determine whether or

15  not they’re going to agree with you that that’s the

nature of the injury you suffered.  If they don’t agree, there’s a whole appeal process that people go through to question that decision.  But this doesn’t do anything…

20  ARIF SAHINBAY:  But one thing…

THE COURT:  Just a minute.  I’m still talking.

ARIF SAHINBAY:  Okay.

THE COURT:  This doesn’t do anything for the purposes of the trial.

25  ARIF SAHINBAY:  I would like to read…

THE COURT:  I beg your pardon?

25

ARIF SAHINBAY:  I would like to read one part, sir.

THE COURT:  All right.  If you want to read… ARIF SAHINBAY:  This is a legal part.

THE COURT:  Yes, yes, yes.  You read whatever you want.

:  It says, “I confirm that the

information provided is true and correct.  I understand that it is an offence under the Insurance Act to knowingly make a false or

5 misleading statement.”

THE COURT:  Where are you reading from?

ARIF SAHINBAY:  From – from the – from paper here.

THE COURT:  Yes, but where?  On the first page?

Yes, okay.

10 ARIF SAHINBAY:  Third paragraph.

THE COURT:  Yes.

ARIF SAHINBAY:  In the middle.  Okay?

THE COURT:  Yes.

ARIF SAHINBAY:  “…false or misleading statement

15 or representation to an insurer on record at time

of issuance.  I further understand that it is an offence under the federal Criminal Code for anyone by deceit, falsehood or other dishonest act to defraud or attempt to defraud an insurance company.

20 By signing this…”

THE COURT:  Whose signature is this?

ARIF SAHINBAY:  This signature, Dr. Gerber (ph).

Dr. Gerber’s (ph) signature.

THE COURT:  How do I know that?

25 ARIF SAHINBAY:  What do you mean, how do you know? THE COURT:  There’s nobody here to prove it.  He’s not here.

ARIF SAHINBAY:  Sir, his signature and his name is here.

THE COURT:  Okay.

ARIF SAHINBAY:  Please be fair.  Please be fair and please accept this as – as evidence.

THE COURT:  “Based on my assumption I believe the following criteria are applicable to this applicant:  7.  An impairment or combination of impairments in accordance with the American Medical   5 Association guideline in the evaluation of…” Okay.  Or so the doctor – okay.  You know what?  I really have kind of exhausted my ability to explain to you that there are processes here, there are rules.  Okay?  This is an application.  The doctor

10 may think that you qualify.  I don’t know whether

he does or not?  What I know is that nobody has evaluated it.  There has been no finding of it, that you suffer from that kind of impairment.  Even if you did, it’s too late here to do that.  This is

15 something you would have had to call in your

earlier evidence.  I wouldn’t have allowed it in then, I don’t think.  I’m not going to allow it now.  That’s it.  Okay?  I’m sorry, Mr. Sahinbay.

I’ve done everything I can to be fair with you and

20 this is it.

ARIF SAHINBAY:  Okay.  May I ask, when the jury comes, the same question?

THE COURT:  No.

ARIF SAHINBAY:  Thank you.  I would like to…

25 THE COURT:  What question do you want to ask them?

ARIF SAHINBAY:  To file this as evidence.

THE COURT:  Well, you can ask to file them and I’ll discuss it.  Yes, you can ask to file it. ARIF SAHINBAY:  You can – you can give the answer to the jury.

THE COURT:  Yes, I can do that.  That’s fine…

:  Thank you very much.  That’s fair

enough.

THE COURT:  …I don’t object to that.

ARIF SAHINBAY:  Thank you.

5 THE COURT:  Okay.  So 12:30, Dr….

  1. DRIMER:  Liao.

THE COURT:  …Liao and you think you’ll be?

  1. DRIMER:  Fifteen to twenty minutes.

THE COURT:  All right.  And then we’re going to

10 have some kind of reply here because we’ll have to

look at the pictures and, I guess, this application.  And then I’m going to – I want you to make your submissions immediately.  I’m going to want Mr. Sahinbay immediately after that.  I may

15 then ask for half an hour because I may need to

make some adjustments, I’m not sure, and we’ll see how we do.

ARIF SAHINBAY:  Thank you.

THE COURT:  Okay.  All right.

20

…R E C E S S (11:31 a.m.)

…U P O N   R E S U M I N G (12:29 a.m.)

25 THE COURT:  Yes?  Are you just standing because

you’re expecting me to tell you… MR. DRIMER:  Yes.

THE COURT:  Okay.  So Mr. Sahinbay… ARIF SAHINBAY:  Yes.

THE COURT:  …are you ready to proceed now?

ARIF SAHINBAY:  Ah yes.

THE COURT:  You know that you have one more witness to cross-examine?

ARIF SAHINBAY:  Ah yes, I do.  And I’m ready and I would like to, before that – I would like to.

5 THE COURT:  Well, you can’t do that before.  You

have a right to call evidence in reply.  So when this witness is finished, you can come back and give more evidence.  You’ll remember, I explained this to you before and…

10 ARIF SAHINBAY:  Okay.

THE COURT:  …what I suppose you’re going to do is present these pictures in response to the evidence of Mr. Da Silva and Mr. Drimer may object, he may not, I’ll have to make a ruling, but that would be 15 your opportunity to put those pictures in.

ARIF SAHINBAY:  Okay, sir.

THE COURT:  Whether you’re allowed to or not, I can’t really say.  Okay?

ARIF SAHINBAY:  Fair.

20 THE COURT:  All right, let’s bring the witness in.

  1. DRIMER:  Dr. Liao.

COURT REGISTRAR:  Are we going to bring the jury in?

THE COURT:  I’m sorry.  Carl wait a second.  We’re 25 missing something.  Get the jury first.

…JURY ENTERS (12:31 p.m.)

THE COURT:  I was going to say good morning.  I guess I should say good afternoon.  We are going to try, I can’t be sure, to finish today or at least have you start your deliberations.  I am aware that

at least one of you has a commitment at 4:30 so we’re going to keep that in mind.  If it gets to be too late and it looks like there won’t be enough time for you to really start deliberations, what we   5 would typically do is I would stop my charge two or

three sentences before the end.  Once the charge is over I’m obliged to have you begin deliberating so I would stop in order to allow us to finish the charge in the morning.  It may be the afternoon

10 given my medical appointments but, in any event, I’m hoping that won’t be necessary.  My expectation is that the evidence will be over within about an hour or so.  At that point, Mr. Drimer would make his submissions, then Mr. Sahinbay will make his

15 submissions.  It may be that I’ll need a bit of a

break just to readjust the charge that I’ve prepared in order to take into account what they’ve said, I’m not sure about that, and I’ll have to think about what I want to do, or whether I want to

20 make changes as a result of the evidence you hear

over the course of the rest of the morning or early afternoon, but I would hope that we would be into the charge by – we’ll probably take a break after the two of them have finished.  You’ll have go and 25 have a bit of a break and then we’ll come back and I’ll do the charge.  I’m hoping that you’ll be deliberating by 3:00 that would be my goal anyway.

So we’ll see how it goes.   Okay Mr. Drimer?

  1. DRIMER:  Thank you the defence would like to call Dr. Liao.

THE COURT:  I beg your pardon?  Oh sorry, sorry.

SUNU LIAO  –  SWORN 

   

5 MR. DRIMER:  Thank you Your Honour to assist the

Court and the jury, may I approach the witness with a copy of her Curriculum Vitae?

THE COURT:  Have you shown it to Mr. Sahinbay?

  1. DRIMER:  Yes he’s been provided with a copy.

10 Also appended is a copy of an executed signed Form 53, the Acknowledgement of Experts Duty and we would ask that this document be marked as the next exhibit?

THE COURT:  Well I think just because the

15 Curriculum Vitae is attached to it, maybe we better

have that identified by the witness first? MR. DRIMER:  Thank you.  If a copy can just be purged to – thank you.

THE COURT:  Here, here you go.

20

 

EXAMINATION INCHIEF BY MR. DRIMER: 

  1. Dr. Liao do you recognize the Acknowledgement of

Experts Duty Form 53 that’s in front of you?

25

  1. Yes.
  2. And you recognize that’s your signature at the bottom of the page? A.  Yes.
  3. Thank you.  Your Honour can we have that… THE COURT:  Well can we go – there are two pages behind it, what are they?
  1. DRIMER: Q. The Curriculum Vitae, as well as Appendage two, do you recognize that document? A.  Yes.
  2. And that is your Curriculum Vitae?

5 A.  Yes.

  1. Thank you Your Honour.

THE COURT:  Mr. Sahinbay, do you have any objections to this being an Exhibit?

ARIF SAHINBAY:  I have questions.

10 THE COURT:  Not yet, do you have any objection to

these…

ARIF SAHINBAY:  No not…

THE COURT:  That’s the first question.

ARIF SAHINBAY:  Not so far.

15 THE COURT:  Okay, all right, so we’ll make that

Exhibit?

COURT REGISTRAR:  Exhibit number six.

THE COURT:  All right.

20

EXHIBIT 6 CURRICULUM VITAE AND FORM 53 OF DR. LIAO – 

Produced and Marked 

  1. DRIMER:  Thank you.

25 THE COURT:  Okay.

  1. DRIMER:  Q.  Dr. Liao can tell us, tell the jury what your occupation is?

THE COURT:  Sorry just so I’m clear, and the jury’s clear Mr. Drimer, are we – are you going to be attempting to have Dr. Liao accepted as an expert here for the purpose of giving opinion evidence?

  1. DRIMER:  Yes Your Honour.

THE COURT:  So we’re going to go through her qualifications for that reason.  As a jury member we discussed this in relation to Dr. Wyndowe, so

5 it’s the same, same process.  Mr. Sahinbay do you

understand what’s happening now?

ARIF SAHINBAY:  Yes I do.

THE COURT:  Okay, all right.

10 MR. DRIMER:  Q. Dr. Liao can you please advise the

jury what your occupation is?

  1. I’m a physiatrist.  I’m a specialist in physical medicine and rehabilitation and it’s a four year specialty program beyond the basic 15 medicine.  So I specialize in the assessment of

disability and that’s my specialty as a physiatrist.

  1. Thank you and can you please tell the jury a little about your educational background?

20 A.  My background is I – my undergraduate studies

were done in India.  I came to Canada.  I did my post-graduate studies and research and I graduated in the University of Toronto and I specialized in physical medicine and rehabilitation.  I graduated

25 and I have been in private practice since ’93 till

today.

  1. Thank you and can you tell the jury please what degrees or certificates you hold?
  2. The specialty certificate is an F.R.C.P.C. which is the Fellowship of the Royal College of Canada, Royal college of Physicians of Canada.  So that’s F.R.C.P.C.  So that indicates I’m a specialist and that is in physical medicine.  So that is my area and sorry what else would…
  3. No thank you, you answered the question.  Can you just tell us for how many years it is that you

5 practiced as a physiatrist?

  1. I’ve practiced as a physiatrist since 1993, that’s when I graduated.  I have my own practice which is O.H.I.P. based and family physician referrals.  So I have my own practice and I see 10patients referred by family physicians and I deal

with all kinds of musculoskeletal problems.  Could be anything related to the muscles, the bones, the nerves, or post-stroke. So all neurological problems, musculoskeletal post accident, Worker’s 15 Compensation, work injuries, car accidents.  So I

treat patients too.  So I see patients by referred by family physicians and about twenty five percent of what I do I, I do offer opinion on assessments.

People are sent to me for an assessment of their

20 disability and that’s what I do too.  So I still

run my own O.H.I.P. practice.  I have, I have a busy O.H.I.P. practice and that’s why I couldn’t come yesterday and my, my other side is where I offer my opinion on matters that is in my field of

25 expertise.

  1. Thank you doctor and speaking of these types of assessments, how many have you conducted in your, your career thus far?
  2. Oh it’s – I have – I’m not able to put a number on it, but the frequency of this is like I see, see patients for Canada Pension assessment, W.S.I.B. assessments.  So I’ve been doing this since ’93 and on a weekly basis – like my O.H.I.P. patients out of a hundred percent, O.H.I.P are like seventy-five to eighty percent, so twenty percent on a weekly basis.  So I do this routinely, so sometimes it’s  5 C.P.P. assessments, sometime W.S.I.B. and I’m still

on the roster for Canada Pension and still on the roster for W.S.I.B. assessments and, and independent medical assessments as well.

  1. Thank you and how many times have you testified

10 in court before as an expert in physiatry, physical

medicine and rehabilitation?

  1. I have testified about six times in the past and in Oshawa, in Toronto, those are the places I have testified.

15

  1. DRIMER: Thank you, Your Honour the defence would like to proffer Dr. Liao as an expert witness in the field of physical medicine and rehabilitation?

20 THE COURT:  Mr. Sahinbay.

CROSSEXAMINATION BY ARIF SAHINBAY: 

25 Q.  Yes.  Would you please tell me can you read the M.R.I.?

  1. I read the M.R.I reports.  I cannot read the actual M.R.I. because I’m not a radiologist I’m not trained in that, that’s not my field of expertise.  So I would rely on the report by the radiologist so…
  2. So you understand what M.R.I. shows, right?
  3. Yes.
  4. That’s good.  Who do you work for usually?  Like what’s the person that you are doing your job to insurance company?

5 A.  It’s varied like I said, it’s varied.  Anybody

asking for an opinion so it’s not – I don’t have any particular insurance company…

  1. So let’s say eighty percent of your job…
  2. Right now I don’t work for any insurance

10 company.  I do medical legal assessments.  I don’t

do any insurance work right now.  I do sorry okay – I don’t – I have C.P.P. assessments.  I have W.S.I.B. assessments.  I used to do work for insurance company, but I haven’t done in the past

15 five years.  So and but it’s through the law firm

via the insurance companies – so not dealing with them directly, but…

  1. Okay I’m talking about the law firms so… A. Yes and then that’s because they asked insurance

20 companies so yes.

  1. What’s the percentage?
  2. About twenty five percent of my work, twenty to twenty five percent.
  3. Of work that you are – okay.  So your, your

25 report is very interesting, I would like to ask you

how much did you receive for – to get this report done?

  1. I don’t know the exact price, but my, my fee is

$350 an hour… Q.  Okay.

  1. …and I bill an average, average of about five hours of work…
  2. Mm hmm.
  3. …five to six hours, depending on how much time I spent.
  4. So do you know the amount?

5 A.  Amount would be $2,500.00, $2,800.00, I don’t

know exact because it’s…

  1. I’m sorry to asking this because I have to question your credibility because you are working for an insurance company…

10 A.  Yes.

  1. …like not the insurance company, but lawyer, but they represent insurance company.  Thank you very much, my questions finished.

THE COURT:  Are you – sorry just – are you agreeing

15 or consenting – are you objecting to Dr. Liao being

recognized as an expert for the purpose of giving her opinions in this case?

ARIF SAHINBAY:  I have no objections.

THE COURT:  You have no objections okay.  Okay so

20 Mr. Drimer you have the designation that you

sought.

  1. DRIMER:  Thank you.

25 EXAMINATIONINCHIEF BY MR. DRIMER: 

  1. Dr. Liao you were retained by my office in relation to this file? A.  Yes.
  2. You understood that this is a civil action relating to a motor vehicle accident that occurred on April 9th of 2010? A.  Yes.
  3. And you were asked to conduct a medical – an independent medical examination or assessment of Mr. Arif Sahinbay? A.  Yes.

th

5 Q.  And you in fact did that back on August 15 of

2013?

  1. Correct.
  2. Were you able to formulate any opinions or conclusions following that examination?

10 A.   Yes.

  1. Can you please explain to the jury what facts you relied on in order to reach those opinions and conclusions?
  2. Okay you want me to explain the – summarize the

15 process?

  1. If you would please?
  2. Okay, the process begins with the history taking.  I explore the history of all the complaints.  So I need a little bit of the 20 background history.  So if there’s an accident I

need to know the type of accident, the events that followed after the accident.  The treatment that followed after the accident.  If there’s an emergency room report, I need that information.  I 25 need the information of the doctors.  I need, I

need the information of the doctors that treated the person before I see because I’m seeing this person like almost three years and – over three years.  So between the time of the accident to my seeing the person the – as much information as I can gather from the time of the accident, emergency room report, ambulance call report, all of that information up till the point I’m seeing the person I need all that information.  But I don’t look at that before I assess the person.  So when I assess the person, I take the history.  It’s a medical   5 history and it’s very important because I would ask

them to repeat to me the nature of the accident and the events that followed.  Treatment that followed and all the symptoms they had in the beginning and the symptoms that they have now and what has 10 changed, what has not changed?  So I need all that

information and then I go into detail describing – asking them to describe every single symptom.  For example, if they say they have neck pain then I want to know what’s the pattern of your neck pain 15 now, not the past.  So I ask them to describe the

current complaints.  When do you hurt?  What things you do you hurt?  What helps?  What doesn’t help?  What do you avoid doing?  What do you take to help relieve the pain?  And is it in one place?  Does it 20 travel?  Does it go somewhere else?  So as much as

I can about each symptom I need that information.  So after I finish one symptom, I go onto the next symptom and then I repeat the same thing again and I ask them to describe as much as they can.  So

25 after the assessment of all the complaints of the

symptoms, I put that aside and then I come to their functioning, which is now.  Can you dress yourself?  What things you did before the accident that you cannot do now?  So what things you did before?  I was able to do this and this and this, but now I cannot do that and that and that.  So I need them to explain to me in detail what is it that you cannot do?  So if you cannot dress yourself, you cannot look after yourself, then tell me what aspects that you cannot look after yourself.  What are the aspects you cannot bathe?  You cannot put   5 on your clothes?  Is it just upper body clothing or

lower body clothing or both, or just loose shoes and socks.  Or you cannot brush your teeth or comb your hair.  So all those things I need to know the functioning.  So the functioning for self-care and 10 then I go into functioning in the home, what things

you did before in the house that you’re not doing now?  And then they would describe as much as they can.  And along with it, is the medications.  The current treatment, what is going on now?  What 15 medications you take?  How much you take?  When do

you take?  And what are the list of medications?  So I gather as much as I can.  And then comes the physical examination.  So the physical examination is done it’s musculoskeletal and neurological

20 examination and I focus on the areas that is

described to be symptomatic.  So then after the assessment is done, and then I dictate my findings immediately.  Once it’s done I dictate and make and prepare a report and I pull out the entire files

25 between 2013 to 2010 and I go and I review in

detail page by page to try to find out all the pertinent information that I can.  So most important as I mentioned is emergency room report.  I’m given a call report if the ambulance was summoned.  The family doctors records.  The initial records if there are any?  All investigations if there are any findings.  What treatment took place?

So I need all that information and then I will try to match what was described to me today?  What findings I found today and I match it with what was found initially and what were the findings   5 initially?  And I try to see what has taken place

and is there a thread to connect.  So I look for that connection.  And if there is any injury of any kind, I follow that injury right through to see what treatment took place.  What, what results of 10 the treatment.  Were, were there any improvement,

no improvement.  What specialist?  What investigations?  So I gather all of that and then I summarize and I just put everything together.  I summarize still because it’s just putting pieces

15 together.  I summarize and I try to find

explanation for the symptom – symptoms and give the opinion.

Q:  Thank you Dr. Liao and based on that process the history taking, the neurological

20 musculoskeletal examination and the review of the

medical documentation that was provided, were you able to – can you please tell the jury what opinions and conclusions you reached? A.  Okay, can I refer to my notes?

25 Q.  Yes.

  1. Okay, after reviewing everything, I was not able to find any explanation to account for the amount of disability described, the amount of impairment described.  I was not able to find any explanation for that and I was not able to find any record describing his disability from the start because what was presented to me that day was quite different from that noted in the earlier records.  And the physical examination itself did not reveal any impairment of any kind that I could explain the impairment described by the, by the person.

5 Q.  Thank you and did you also take note of any

inconsistencies during this process?

  1. Yes that is always part of the examination, part of the examination always we look for, we look for the word inconsistencies simply mean that 10 things which you initially observe and things that

you are told in the beginning, they – what you observe and what you hear, they don’t seem to stay consistent because they change how the presentation even the presentation they just change, just change 15 and so we jot down those are the inconsistencies

that it just doesn’t match.  Like for example, if somebody has, if somebody says my whole right arm doesn’t work and my arm is paralyzed and I cannot move this arm at all, but then what happens is if 20 they come in with a turtle neck pullover top and

then you observe – I mean and then they have no difficulty they, they remove it because you need the one hand or if they, if they are using the hand you observe, you observe them and they say I’m 25 totally paralyzed I cannot use it, but then when

you, when you have difficult – when you notice them the way they put on their coat, the way they you know shrug the coat, the way they move it, that split second may be a split second but then you just realize that the arm is not paralyzed after all because he says – the person may say I do not move it, but then what is demonstrated is quite different or they’ll say that oh I cannot, I cannot tie my shoelaces, I absolutely cannot I need help.  But then the cell phone may ring and it will be on the purse on the floor and they will just bend down   5 to reach for the cell phone and pick that up.  So

we are trained to observe because if you say cannot put on your socks, you cannot bend, but you’re able to reach forward and bend to the floor and pick-up something, it just doesn’t match.  So that is what 10 we medically use the word “inconsistency”.  So the

presentation it has to match with your activity.  So absolutely there’s no function in the arm, then that’s absolutely that has to be consistent throughout there’s no function in the arm with

15 whatever you do.  So that is the term

inconsistency.

  1. Thank you and can you just give the jury an idea of the sorts of testing, the protocols that you administered during the musculoskeletal 20 neurological examination?
  2. Okay um okay, these are just a couple of models I brought.  One is a model of the back.  One is a model of the shoulder.  So for musculoskeletal examination, the shoulder is quite big even though

25 we commonly refer everything around here as a

shoulder.  Symptoms in the shoulder, sometimes they may come from the neck.  They may come from the shoulder. So if somebody says I have shoulder problems, we go into detail and try to isolate what is coming from the neck and what is coming from the shoulder.  And just to show you this is the shoulder girdle.  If somebody has problems in the shoulder blade, which is in this case and I’m speaking of this because this is in this case shoulder blade.  The shoulder blade location (this is my left shoulder) the shoulder blade really   5 there isn’t really any movable joint in the

shoulder.  So if somebody says there is a shoulder blade problem right there in the middle on that, then you know you have to examine the shoulder to see whether actually the shoulder functioning is

10 affected.  This is a shoulder girdle and when you

find there’s nothing to find there, strength is good, everything is good, but during strength testing we have a term called give way weakness.

Give way means you will find – you will ask someone

15 to resist you and they will resist, but then

immediately there is a drop, so that is called give way.  So when there’s give way weakness, then you know that this person really had the ability to resist, but there was a sudden like almost like a 20 plummeting drop in the strength.  So that is give

way weakness, so that’s an inconsistency found.  And the other one is the back (I’m talking about this case again).  The location of the back symptom – this is the lower back and the moveable joint in 25 the lower back it stops at this last joint which is

the lumbar five vertebrae.  There’s number five, number four, number three, number two – they are five lumbar vertebrae and above that you have the thoracic vertebrae and then the neck.  So this is the lower back.  Now in the lower back, these are the moveable joints and commonly this is – the pains are usually in this region if people have back problems because the joints move you hurt, yes when you hurt – when you move it hurts so these are moveable joints.  But when the pain is complained to be in the region of sacrum (this is the sacrum –

5 the sacrum ends in the tailbone – that’s the

sacrum), so then the location of the pain when you say it’s over the sacrum, you will note that there are no nerves in this region.  So if somebody were to say I have pain in the sacrum and that pain 10 travels all the way to my toes, then you will know

that the location is just not matching their anatomy.  People do have pain that travels into the toes from the back, but that has to come from a higher source where there are actually nerves

15 because these are the nerves coming out and they do

come down and they go into the leg all the way to the toes.  A common example is sciatica where the nerves come out.  So again this is an inconsistency.  You look at the location, you look

20 at the examination, you look at the history.  And

the third thing we commonly use (not the third thing I’m just saying third because I’m saying it here), is the grip strength.  Now this is to measure grip.  This is an instrument that we

25 commonly use, it’s called a Jamar Dynamometer.

It’s a hydraulic gauge.  And this gauge is to test handgrip strength.  So I would ask the person to take this in their – in any hand, start with the right, crush it with all your might and so they show.  Then you do it in the left and it’s recorded in kilograms or pounds.  So at this – this is the number one position.  Then you ask them to go into – to grip this instrument in the number two position and the same thing in the right hand crush as hard as you can, crush as hard as you can.  So this goes on, this is number three and it ends in   5 number five and unless you have large hands really

the grip starts to be low.  So this instrument is used for two things.  One is to measure the strength – the actual grip strength because when we ask the person come and squeeze my fingers I really

10 don’t know how much grip strength they might have.  But this is actually gauging the actual grip is how many kilos or how many – how many pounds and people with hand problems we gauge.  Each time they come you say okay show me your grip so we can document 15 improvement or no improvement.  So this is always

objective, it doesn’t waiver.  It’s not like you know squeezing fingers.  So now I mentioned these five positions.  So the lowest position versus the highest position.  If you put them on a graph and 20 document each number for each hand, you will note

that the numbers will go from low, little higher, little higher or highest.  Number three and four are the highest and then it starts coming down.  So it is always like a bell curve.  Even if somebody 25 has rheumatoid arthritis in their hands, even if

they are having bad arthritic fingers, if they squeeze using the same effort, good effort, the same graph will show.  Now when somebody – when you, when you do not show effort and you just, just deliberately just want to show I don’t have strength, I don’t have strength, then the results are going to be very low and it will be like a straight line which is what was in this case for the left hand only.  The right hand had good strength, but the left hand was just like a flat curve.  So that is not consistent – that is sort of   5 just a guide as that person is not putting forth

full effort.  Even if the hand is painful, if there’s full effort it will always show a curve.  So that’s why this instrument is used for two things.  One is for objective testing for 10 improvement or lack of improvement for people with

hand problems, grip nerve problems coming from the neck affecting the hand.  And the second one is to looking for whether there’s any sign that this person may really be able to do more that what is 15 demonstrated at that assessment.  So that is also,

that’s also – these are the Jamar Dynamometer and these were the two, two body parts that are talked about in my report, the shoulder blade and the lower back.

20 Q.  Thank you Dr. Liao, is there anything else that

you’d like to add?

  1. Yes, sometimes when some of the history that was told to you – if somebody tells you they have numbness from the top of the head to the tip of the

25 toes, anatomically there’s no such, there’s no such

condition because the – because if somebody says exactly half of my face – half of my body, half of my, my entire hand, entire limb is completely numb, there’s no anatomical explanation for this because anatom – anatomy does not divide your body into an exact half.  Like the nerves in the face and the head are coming from the brain, they’re coming from the facial nerve end.  And they come and in fact one side nerve innovates the other side of the face, so it’s on the opposite side.  And then the nerves coming from the neck pain innovates patches

5 and they do not, you’re not – you don’t have a

dividing midline to say this nerve goes exactly from this half to that half, that half to that half.  So history wise when somebody describes that numbness from head to toe, then you find there’s no 10 explanation for this, there’s no explanation.  So

that is another thing I just want to point out…

  1. Thank you doctor…
  2. …that we rely on history very much.

15 MR. DRIMER:  Thank you Dr. Liao.  Your Honour those

are my questions for Dr. Liao.

THE COURT:  Mr. Sahinbay?

ARIF SAHINBAY:  Yes.

THE COURT:  Okay.

20

CROSSEXAMINATION BY ARIF SAHINBAY: 

  1. Now I would like to give you one x-ray Exhibit

25 1 – Northwest Imaging Associates. I would like to –

you to explain this please first?

THE COURT:  Well just wait a minute.  Can I just see what this is first of all?

ARIF SAHINBAY:  Exhibit 1.

THE COURT:  Have we exhibited this already?

ARIF SAHINBAY:  Yes we did in Exhibit 1.

THE COURT:  Well we’re looking just get a hold of

Exhibit 1. So okay what you’re going to have to do is ask the doctor to first of all look at the last page of Exhibit 1 and you’re going to have to ask her whether or not she is familiar with this

5 document or has ever seen it before.

ARIF SAHINBAY:  Q.  Have you ever seen this document?  This report?

  1. I have to refer to my file review…

10 Q.  Sure take your time.

  1. …if I’ve seen it okay.  I do not find it so I haven’t seen this before. Q.  Okay.
  2. That’s the x-ray of the ankle?

15 Q.  Mm hmm.

  1. Yes.
  2. Okay could you please explain what, what is says?

THE COURT:  Well just a minute, she hasn’t seen it

20 before so the next question is doctor do you feel

comfortable reading this document now and capable of understanding and explaining or interpreting it for?

  1. Sure.

25 THE COURT:  All right so give her a moment to read

  1. Okay.

THE COURT:  Mr. Drimer do you have any objection?

  1. DRIMER:  I have no objection Your Honour.

THE COURT:  Give her a moment to read it please.

  1. Okay so it describes – there’s a small bone

density adjacent to the tail and its saying (I don’t have an ankle model) so I’m just going to try and explain as much as I can.  In the absence of soft tissue trauma swelling in the area, this is

5 most likely due to old trauma and there’s a

separated bone density seen at the tip of medial malleolus – medial malleolus is the bone on the inner side of your ankle, that’s a medial malleolus

– it’s inside.  No acute fractures malleolus.  Okay

10 it’s – it is describing some density in the bone

and it’s describing that there’s a separated – it’s just describing old trauma…  Q.  Okay.

  1. …possibly old trauma.

15 Q.  Mm hmm.

  1. Now this x-ray right ankle if you ask me I mean I don’t want to anticipate, but if you ask me whether it made any difference there was no ankle injury reported in the emergency room.  So in the 20 light of that there was no ankle injury described

in any of the reports.  There was no ankle injury reported to me.  No ankle symptoms I mean. Q.  Mm hmm.

  1. So if you show me this then I would say yes

25 it’s possible this person had old injuries of

something remote and it’s showing but nothing acute.  That’s about it.

  1. If there is no…

THE COURT:  Can I just have something explained to me?

  1. Sure.

THE COURT:  When you talk about old trauma, what

timeframes are we talking about?  Or are you able to say?

  1. This is so old that I can’t even say, I can’t even say because this is – this x-ray is dated

th

5 February 4 , 2013.  So that would have – so the

accident date 2010.  This is dating back at least five years and beyond.

THE COURT:  Okay.

10 ARIF SAHINBAY:  Q.  Okay um so is this – is caused

because of the accident or because of it, its nature like it happens everybody like by itself or?

  1. Well I don’t know because the details of the accident…

15 Q.  No not accident – I’m not talking about

accident, I’m talking about this injury? A.   Yes.

  1. Well because it caused by itself like in human nature this accident is…

20 A.  Well the radiologist says it’s due to old

trauma.  So I’m not the radiologist so what is read in that picture, if the radiologist says old trauma I accept that so possibly old trauma could’ve been childhood, could’ve been whenever, but I don’t know

25 so…

  1. Could be accident?
  2. I don’t know.
  3. Okay, but…
  4. But accident, if it’s accident, then the emergency room record will show ankle, all of the doctors who saw the person will show ankle and I will have report of ankle problems.
  5. Okay, so this is my treating doctor.  So if there is no complaint, there is no x-ray right  so that I, I made my complaint.  In emergency room I had total lost.  I was total lost I don’t even

5 remember.  That’s fine, thank you very much.

Thanks for explanation.   A.  Okay.

  1. Let’s come to the second one, again it’s Exhibit 1.  This is is not…she has it?

10 THE COURT:  Which page are we talking about now? ARIF SAHINBAY:  I think it must be, must be second maybe, but I cannot see it.  No it is third page sorry third page. A.  Third page?

15 Q.  Mm hmm.

THE COURT:  Do the same thing please ARIF SAHINBAY, ask her whether or not she’s seen it before? Q.  Sure.

THE COURT:  Now you go ahead.

20

ARIF SAHINBAY:  Q.  Have you seen it before?

  1. I haven’t seen it before, but I was told that you have tendinopathy, I was told.
  2. So…

25 A.  You, you reported the word the word

tendinopathy to me, it’s in my report. Q.  Okay so you haven’t seen that?

  1. No, I haven’t seen this report.
  2. Okay, I remember that I brought this reports to you so it is possible that you didn’t have it…
  3. You brought the medication list…

THE COURT:  All you can do is ask her whether she

recalls seeing it.  It’s a cross-examination so you can remind her that you…

ARIF SAHINBAY:  That I’m reminding her that I brought this report assessment.

5 THE COURT:  Let me see if I can…

  1. I will tell you what um was here.  You gave me copies of your medication okay – medication list.

ARIF SAHINBAY:  Q.  And, and M.R.I. report?

10 A.  You gave me that because if it is here I would

have reviewed it.  You brought me the medication list – photocopies of the medications you were taking.

  1. So who told you that I have this, this…

15 A.  Tendinopathy?

  1. Yes.
  2. Yes it’s in the history.
  3. It’s in the history?
  4. Yup in the history in the description of the

20 shoulder and it’s on page three of my report and

this is the description of the shoulder blade pain page three and it’s in the description of your shoulder blade pain – the left shoulder blade pain. Q.  Mm hmm.

25 A.  So I asked you to describe where and I have, I

have a measuring tape which I use in my examinations.  So during the examination I will pinpoint the exact location of all the areas that is described to be symptomatic. Q.  Is there a swelling there?

  1. Yes.
  2. Swelling right?
  3. No, no, no swelling…
  4. No swelling?
  5. Sweating or swelling?
  6. Swelling, swelling?

5 A. No, nope the – no swelling.  Here the location

is I described here on page three it is six point five inches below the C-7 spinous process and I’ll explain what is a spinous process…

  1. Have you ever…

10 A.  A spinous process is page three – I’m coming to

the word tendinopathy – you wanted me to explain where I saw this word?

  1. No it is there is much interest in patient’s tendinopathy yes that’s right.

15 A.  Yes, no I’m talking about you had mentioned

this word to me tendinopathy and this is what I’m explaining on page three of my report. Q.  Okay.

  1. So the location of the pain was six and a half

20 inches below the C-7 spinous process.  Now C-7

spinous process when you look at the back of a person you look at the bone that is jutting out below the low, the lowest part of your neck, that is the C-7 vertebrae and that is the bone we use as 25 a landmark.  So you want to pinpoint something, you

use that landmark for the back so you measure six and a half inches below that and six inches to the left of the midline.  So very easy drop six inch – six point five inches down, six inches across that is the location and then you ask them to describe the area and the area was a size of a lemon I put.  Then he described that it would hurt if he raised his left arm above the shoulder level.  Then he described he had an M.R.I.  He described the M.R.I. report showed tendinopathy (ph), that’s the word that’s used.  Tendinopathy (ph) in the left   5 shoulder.  So that is, that is the word you already

told me about.  So this report is describing tendinopathy (ph).

  1. Tendinopathy (ph), okay what’s tendinopathy (ph)?

10 A.  Tendinopathy (ph) simply means that the tendon

is involved and the tendon is symptomatic, that’s all it means.  That term tendinopathy (ph) is like a mild inflammation of the tendons.  There are four big tendons in the shoulder.  We call those four 15 big tendons the rotator cuff, rotator cuff tendons

and so one of them is mild supra and infraspinatus tendinopathy.  So this finding is commonly found in individuals.

  1. So any, anybody can carry this?

20 A.  That’s right.

  1. This happens by itself by…
  2. As part of aging, it’s a chronic process…
  3. What, what, what age are you talking about here?

25 A.  A part of aging means people who have – as we

age…

  1. Like 60 years, 65 years, 70?
  2. I don’t have a number to put on but any over 40, anybody over 30, 40.
  3. Okay I’m 33, I was 33 years old I guess right?
  4. I don’t know you were…
  5. Okay that time, so, so that means this is not

because of aging?

  1. Well that is a mild inflammation, but that mild inflammation could happen depending on the nature of whatever you do.  You could be at – you could be  5 either occupation or whatever you did at home.  If

you have been pruning trees or cutting whatever, it can result from anything.

  1. So do we think this could happen because of the accident too – like hitting like somewhere?

10 A.  No unless it was this type of injury can only

happen if and this is – let me see what shoulder is this?

  1. Left shoulder.
  2. Left shoulder, this accident can happen if

15 there was a side impact to the driver’s door where

the driver’s door actually crumpled onto the shoulder and there was bruising and impact causing direct tendon injury, that’s the only way it could happen.

20 Q.  Okay so that means if…

  1. If that was the nature of the accident…
  2. Yeah like if…
  3. …unless…
  4. …if somebody hit the left shoulder to the side

25 door this could happen right?

  1. No, no, not just somebody hit the…
  2. That’s what you just said.
  3. …there has to be a direct trauma.  There has to be significant trauma, not just like bumping, bumping doesn’t result in tendon – tendon inflammation like that.
  4. So should be a little more impact like the

strong, stronger one?

  1. Well we have people with t-bone, t-bone accidents and where the car actually has impacted on the shoulder, but then the emergency room

5 finding would be very obvious.

  1. Mm hmm.
  2. There would be bruising.  There would be significant, they will have significant severe pain.  There would be all that.

10 Q.  Okay so um it could be because of the accident?

It could be?

  1. Only if that nature of the accident.
  2. Okay.
  3. It has to be a t-bone with the actual hard

15 obstruction – I mean hard structure impacting on

  1. So not just any accident.
  2. Do you think this one is fixable?
  3. There’s nothing to fix here…
  4. Or…

20 A.  …because it’s a mild inflammation.

  1. Okay.
  2. There’s nothing to fix, it’s a mild inflammation.
  3. So how come people can carry a, a, a chronic 25 pain then because of this?
  4. Well chronic pain is a totally different topic.  Chronic pain by definition is anybody complaining of pain more than six months, that’s chronic pain and complaining of pain in the absence of any explainable cause.  So if somebody complains of chronic pain with this… Q.  Mm hmm.
  5. …there’s no cause for this, so I do not understand what’s the – what you are, what your question is?
  6. Okay, what’s your degree?  Do you – because my

5 treating doctor degree has PhD, do you have that

kind of degree?

  1. Well I am a specialist in physical medicine.
  2. You are…
  3. …I am F.R.C.P.C., so I am a doctor in physical

10 medicine.

  1. So you are not a professor or you are not…
  2. I do not teach, I have my own practice.
  3. PhD?
  4. Yes.

15 Q. Okay that’s fine because there is a difference

between my doctor and you are saying so I have to question your degree… A.  Sure.

  1. …and I have to question sure for your

20 credibility here.  That’s fine than, you very much

and let’s come – let’s go back to the x-ray please?  Could you please tell me if this is fixable or, or not?

  1. The right ankle, that, that you have to ask 25 your orthopedic surgeon.
  2. So you cannot answer this?
  3. I cannot answer that simply by looking at an xray.  These are chronic people – there are people who have such findings and they are functioning very well.  See that is what we call clinical correlation.  By looking at an x-ray, I cannot say whether – I cannot say how disabled that person is.

There are people with severe findings in x-rays, but they are actually functioning quite well.  So function and x-rays are two different things.

  1. No my question is not about the functioning.

5 A.  Do you want me to fix that x-ray?

  1. No, no, my question is, is this fixable?  Like do I need surgery to fix this or what can fix this?
  2. There is – okay it starts with symptoms.  Again we start with history.  We start with the history.

10 We start with the examination.  We start with the

investigation.  We look at all three together.  We don’t just look at the x-ray and say…

  1. No, no, no I’m not blaming you here, I’m just trying to get the information…

15 A.  I don’t how to fix it.

THE COURT:  Just a minute, Mr. Sahinbay when you ask a question and the doctor and any other witnesses begins to answer, one of the things you need to do is to let her finish her answer.

20 ARIF SAHINBAY:  She misunderstood sir.

THE COURT:  No she was still talking, so let her finish please.

ARIF SAHINBAY:  Okay, okay.

  1. So you want to know whether this x-ray or your

25 – this ankle – person with this ankle is fixable?

That’s what I’m trying to say, it’s a hard question to answer because we need the history, history means when does the pain happen?  Does it happen end of the day?  Does – are you able to take some pill – like Tylenol perhaps and help it or is it happening all day?  Is it happening only when you climb stairs or is it happening when you – even when you’re sitting and doing nothing?  History is important.  History, history and then what, what treatment you’ve had?  Whether you’ve had any antiinflammatories?  Whether you’ve had any therapy?

5 Whether you’ve had any injections?  Again

treatment, so those are all towards fixing, towards fixing it and then the last thing if you want to fix this change has already taken place in that ankle, nobody can give a new ankle to, to you, but 10 then depending on your function, whether is it an

injection that perhaps might help and if you say no nothing can help it, it’s a severe pain I can’t function I can’t do anything, then the surgeon’s role is they will go clean out the ankle, they may

15 fuse the ankle, they may remove those bone

densities, they may do anything but that is a surgical aspect so.

ARIF SAHINBAY:  Q.  I see I understand thank you.

20 Thanks very much, thanks for your answer, thanks

for the information.  Okay so whose – could you please turn to page two of the four or five the back jury, lower back? A.  Page what sorry?

25 Q.  Page two.

  1. Page two of this report?
  2. Yes.
  3. Okay.
  4. Have you ever seen this?
  5. No if it’s not in my report, if I’ve never commented on it I don’t – I haven’t seen it.
  6. You haven’t seen it?  Yes it is on your report

that you are aware of this one.  I didn’t think you, you would not say that ‘cause sorry about that.  Okay that’s okay so you have never seen this?  Would you please explain us because you just   5 mentioned that I had back injury and you brought

this stuff to show us? A.  Yes.

  1. And you gave an example of – because my example, you were told one of them for back, one of 10 them shoulder.  Now how come you’re saying that

you, you never seen this?

  1. I brought that because of the symptoms, remember the symptoms you complained is in the back?  You complained of symptoms in the shoulder?

15 Q.  Oh okay so not because of this?  A.  Not because of this.

  1. Sure.
  2. Because of the symptoms.
  3. Okay could you please L-4 and L-5?

20 A.  L-4 and L-5?

  1. Mm hmm.
  2. Do you want me to explain this report?
  3. Yes please.
  4. Okay.

25 Q.  Thank you.

  1. So I’ll explain this report.  The request for this report is to rule out herniated disc.  Now I’m going to show you this other vertebrae and if we take them apart (this is just a model of course) these are the discs in between, these are the cushions in between.  It’s made up of ninety percent of water and they are in between the back bones.  Now this is a spinal chord and these are the nerves that come off and they go down the legs from the back it goes down the legs.  Right side goes down right, left goes down left.  These are  5 nerves coming out.  Now if this disc was to pop out

and bulge and herniate is the word that we’re looking for.  Herniate means literally like an extrusion of material.  So in other words it would be like this.  So if you look at it now this is the 10 disc that has herniated and if I put this back (I

try to put this it may not even go) now you see if I put it back here, this nerve root will be pinched and that is the word, herniation we’re looking for.  Now this report does not describe any herniation.

15 It says there are five lumbar vertebrae segments

yes.  The distal (ph) chord is normal in signal.  Distal (ph) chord means, distal (ph) means away from your head that is distal (ph).  So this is the last part of the spinal chord.  So when you do an 20 M.R.I., unlike a photograph which just takes this

picture like this (if I took a picture it’s like that), the M.R.I. actually slices the back – back bone, it slices it and so you would be looking at the picture like this.  So the M.R.I. is describing

25 – M.R.I. takes two sets of pictures.  One is side

view, so it’s got the five lumbar vertebrae, but the M.R.I. looks at it like this to look at the spinal chord and this is the spinal chord.  They have to look at whether the chord’s signal, whether the spinal chord is involved or anything abnormal.  It says distal (ph) chord is normal in signal and normal in morphology.  Morphology means for shape and the surroundings and the structure, that is morphology.  There is minimal broad based dosal disbulge L-4, L-5 without focal disc herniation

(ph).  So I’ll explain that.  Minimal broad based

5 disbulge – a disbulge means – a disbulge is a

normal finding because if you did an M.R.I. of the normal population, a lot of people have disbulges.  It doesn’t mean it’s hitting on your nerve.

Disbulge means if this is the disc like this, I’m

10 going to switch it round like this okay, okay.  If

you look through this triangle right now, you actually you will see that this disc rotator is flush with the bone.  So it’s flush with the bone like this.  Okay so there’s nothing happening.  But 15 a bulge means there’s a little bit of a bulge.  So

now there’s a bit of a bulge, that’s a bulge.  If you look through it it’s not so flush – you see something.  So this is what they call a disc bulge.

Now disc bulge and disc herniation are totally two

20 different things.  Disc bulge occurs in normal

individuals.  Disc herniation actually means that the disc has completed popped out and it is a very significant popping out and it’s pinching on the nerve.  So this disc pops out it’s going to hit on 25 this nerve and you will have the symptoms going

down your leg.

  1. Okay so…
  2. So the conclusion is minimal broad based disc bulge at L-4 L-5, L-4, L-5 simply means the number of the vertebrae because remember I said the last one is five, last one is number five and this is number four and this is number three.  So L-4, L-5 means between number four and between number five there is a broad based disc bulge, but it says here without focal disc herniation.  That means it bulged out, but it did not pop out so there’s no  5 herniation.  So when there’s no herniation, that

nerve cannot be pinched.  If it pinched it would be described in the M.R.I. report that there is a disc herniation and there’s another word they would use – impingement.  It will say impingement where the 10 nerve is actually crushed against the bone.  So

that’s the word they use.  We look for disc herniation and we look for impingement.  This is not in here.  This bulge is normal.  This finding, this M.R.I. report is normal.

15 Q.  Disc bulge is normal?  Minimal broad based

dorsal disc bulge L-4, L-5… A.  Yes.

  1. …it is normal?
  2. It’s normal.

20 Q.  Have you swear?

  1. Yes I swear.
  2. Sure okay no problem it’s normal.  Very interesting because again my…

THE COURT:  Can I ask a question?  Are you

25 finished?

  1. No I am not finished.  I have one more question.

THE COURT:  Okay.

ARIF SAHINBAY:  Q.  Could you please turn to page – first page?  Have you ever seen this? A.  Yes.

  1. Oh you’ve seen this?
  2. Which one, the M.R.I. report?
  3. Yes.
  4. Yes.

5 Q.  How did you see this?

  1. How did you see this?
  2. Or when did see this before?
  3. I’ve seen it probably in the file review, but I don’t comment on it because I’m not a neurologist.

10 Q.  Okay because I remember that I carried all of

them and give it to you at the time of the assessments.

  1. Yeah I could have, but I don’t comment on things that I…

15 Q.  Now you only have one…

  1. That’s not my area, I don’t comment on things which are not my area. Q.  Sure okay.
  2. Yes.

20 Q.  But you had, you had this?

  1. Yes.
  2. Okay that’s fine, that’s fine, because I remember that I brought you all of them? A.  It’s possible.

25 Q.  So one of them is left and the other three

missing?  Sure.  Thank you very much ma’am.  Thanks for coming, thanks for answering the questions.

THE COURT:  Any more questions Mr. Drimer?

Anything in reply?

REEXAMINATION BY MR. DRIMER: 

  1. Just one.  Dr. Liao if Mr. Sahinbay brought you any documents, you would not have discarded them?

5 You would not have ignored them?  You would’ve

review what was provided to you?

THE COURT:  Well let’s not lead her.  Let’s – if you received the documents, what would you have done with them?

10

  1. DRIMER:  Q.  Thank you.  If you – would you have – if you received the document from ARIF SAHINBAY, would you have read it? A.  Yes I would have read it.

15 Q.  Thank you.  Thank you Your Honour.

THE COURT:  Thank you.  Dr. Liao thank you very much for coming out to help us out we appreciate it.

  1. LIAO:  Thank you, thank you very much.

20 MR. DRIMER:  Thank you, Your Honour.

THE COURT:  Just give Dr. Liao a chance to clear.

Are you finished your case?

  1. DRIMER:  Yes.

THE COURT:  All right, Mr. Sahinbay, do you have

25 any reply?  Do you understand what reply evidence

is?  You can call more evidence now, but only evidence that responds to what the witnesses called by Mr. Drimer have said.  You can’t repeat what has been said before or introduce any new issues or concerns.  Do you understand?

ARIF SAHINBAY:  Yes.  Do you want me to…

THE COURT:  Do you have anything you want to say in reply?

ARIF SAHINBAY:  Yes, I would.

THE COURT:  All right.  You come back up here then.

5 COURT REGISTRAR:  Mr. Sahinbay I still want to

remind you that you’re under oath?

ARIF SAHINBAY:  Yes okay.  Thank you

 

10 ARIF SAHINBAY, RESUMED 

  1. Yesterday, they brought you a car – um apicture of mine.  So today, I brought you – because he didn’t accept that is his car, but today I brought

15 you his car picture that’s sent me by the lawyer of

the other side.  Plate is on it, so…

THE COURT:  Can I just see what you’re looking at, Mr. Sahinbay?

ARIF SAHINBAY:  Sure.

20 THE COURT:  Have you seen these, Mr. Drimer?

  1. DRIMER:  I saw it earlier this morning.

ARIF SAHINBAY:  It – it’s just…

THE COURT:  Wait.  Sorry.  Let’s just – you sit down, Mr. Sahinbay.  Sorry, one thing at a time.

25 Have you seen these?

  1. DRIMER:  Earlier, earlier today.

THE COURT:  All right.  Are you going to have any objection to them being put in evidence? MR. DRIMER:  The difficulty, Your Honour, is that unless Mr. Sahinbay could advise us who took that photograph?  When it was taken?  I’m going to have some difficulty with respect to allowing that photograph into evidence in terms of its identification as Mr. Da Silva’s vehicle.  Mr. Da Silva was here yesterday.  The photo certainly could have been presented to him potentially to

5 identify it, and it was not.

THE COURT:  Well…

ARIF SAHINBAY:  This is the only way to get the pic…

THE COURT:  Let me think, Mr. Sahinbay…

10 ARIF SAHINBAY:  Oh.

THE COURT:  …for just a minute, please.  Okay.  Members of the jury, I’m going to ask you to excuse yourselves for just a moment.  I want to just talk to Mr. Drimer about this for a minute and Mr.

15 Sahinbay.  And quite apart from all that, I know

the staff has a question they want to ask you.  So it’s not the kind of question we’re going to ask in a courtroom.  It has got something to do with lunch, I think.  So if you want to just go into the

20 jury room just for a couple of minutes, let them

get the information they need.  We’re going to clear this up in here and then proceed.

…JURY RETIRES (1:34 p.m.)

25

THE COURT:  You’re well within your rights to take the position you’re taking.  I’m just wondering whether, looking at the situation more broadly, there’s going to be a whole lot of harm and whether we’re going to be – I guess, my question and my concern is we’re going to causing more trouble than it’s worth to object to this is really what I’m asking.  So I’m just asking you to take a – I’m not really sure what I’m asking.  Take a deep breath and just think about whether the objection is really worth doing?

5 MR. DRIMER:  I understand, Your Honour.  I did want

to put the objection on the record.  The fact that the photograph appears to have originated from my law partner tends to give some comfort to me in terms of its authenticity.  So I’m in your hands,

10 but I’m not going to certainly strenuously object

to its introduction.

THE COURT:  Well, my point is sort of the obvious one.  I mean, if you really wanted to stand on this I’d have difficulty.  It just strikes me that all

15 things being equal – I mean, you’ve made a good

point which I had noted as Mr. Sahinbay was talking about where the letter came from.  It does look a little peculiar, given the letter.  So I think I’m hoping that you and I could come to a sort of

20 accommodation here.  I don’t particularly want to

make the ruling because I’m not sure I could make it the way Mr. Sahinbay is asking for it.  On the other hand, I’m not sure what’s really going to be lost by putting this in which will allow him, as

25 one member of the public, to understand that

sometimes we do work to make things work, for want of a better term.

  1. DRIMER:  I understand, Your Honour. THE COURT:  So can we get this in when they come back?
  2. DRIMER:  Yes.

THE COURT:  All right.  Okay.  Mr. Sahinbay I want to point something out to you.  I want you to listen to me carefully.

ARIF SAHINBAY:  Yes, I am.

5 THE COURT:  So Mr. Drimer has a concern.  His

concern is that he doesn’t know who took the picture and he can’t really be absolutely certain that it is the car of Mr. Da Silva, but he is acknowledging – he’s not going to force that

10 objection.  He is acknowledging that given where

the letter came from, which is from his partner, it seems logical that it would be relevant to this case and would be Mr. Da Silva’s.  So he’s not going to force the objection.  He’s going to allow

15 you to file this.

ARIF SAHINBAY:  Okay.

THE COURT:  It’s not something he has to do here, do you understand?

ARIF SAHINBAY:  I understand.  Thank you very much.

20 THE COURT:  Okay.  Bring them back.  Are you

planning to put this picture in as well?  There’s two pictures here.  Hang on.

ARIF SAHINBAY:  These are all together.

  1. DRIMER:  I only saw the first page.

25 THE COURT:  Well, let’s – I mean, that’s – let’s

take a minute here.

  1. DRIMER:  The first two pages… THE COURT:  Yup.
  2. DRIMER:  …I am prepared to concede.  The rest – the balance appears to be a property damage estimate, repair estimate with some commentary by the mechanics.  I’m going to have to maintain my objection…

THE COURT:  All right.

  1. DRIMER:  …insofar as those records are

5 concerned.

THE COURT:  So Mr. Sahinbay, what we’re talking about here is we’re going to allow the two pictures to go in.

ARIF SAHINBAY:  Okay.

10 THE COURT:  But you can’t just put in this property

damage claim without knowing what it’s about, or having somebody here to talk about it.  So the pictures, yes, the rest of it, no.  Do you understand?

15 ARIF SAHINBAY:  Okay.  I do understand.

THE COURT:  Okay.

ARIF SAHINBAY:  So first two pages?

THE COURT:  Two pages, right.

ARIF SAHINBAY:  Then I have to take this…

20 THE COURT:  Yes, that would be best, I think.

Maybe you could just give it to Mr. Drimer.  He’ll put it on your desk for you just in front of where you sit so it’s… ARIF SAHINBAY:  Well, I’m going to show the…

25 THE COURT:  The rest of it, not the two pictures.

ARIF SAHINBAY:  Oh, the rest of it.  Okay.  No, no.

I… THE COURT:  You keep the two pictures.  That’s fine.

ARIF SAHINBAY:  Sure.  That’s what I – I want to… THE COURT:  And I want to make sure we’ve only got the two pictures in front of the jury.

ARIF SAHINBAY:  Sure.  Sure.

THE COURT:  How many have you got there, three?

ARIF SAHINBAY:  I have one each for jury.

THE COURT:  Yes.  I don’t think you need one each

5 for the jury?

ARIF SAHINBAY:  All of them for the jurys. THE COURT:  Let’s just get three ready.  That’s enough.  Okay?  Have you got three of them now?

ARIF SAHINBAY:  I have three.  I have for everyone.

10 THE COURT:  Have you got three?  Well, I know.  If

you have three ready, give the rest of them – just hand three over to the jury.  That’s all you need.

ARIF SAHINBAY:  Okay yeah three of them is ready.

THE COURT:  That’s enough.  That’s enough.  Three

15 is enough.

ARIF SAHINBAY:  Okay.  Thank you.

THE COURT:  I just want to keep moving.  Are we already now?  How many have you got for the jury?

COURT SERVICES OFFICER:  Three.

20 THE COURT:  Three.  Okay.  Perfect.  Why don’t you

give the rest of it to – Carl, put it over on the chair there so it doesn’t get…

COURT SERVICES OFFICER:  I’ll put it on the chair.

ARIF SAHINBAY:  Sure.  Thank you very much.

25 THE COURT:  All right.  Bring them back.  We’re

ready now.  Mr. Drimer, are you ready to go after? MR. DRIMER:  Yes.  I’ve been jotting down notes as quickly as possible, so yes.

THE COURT:  Well, again, you’d be within your rights to ask for five minutes but I’m hoping we can…

…JURY ENTERS (1:40 p.m.)

THE COURT:  All right.  So Mr. Drimer, let’s be clear.  Mr. Sahinbay has indicated, while the jury   5 was out of the room, that he has two pictures that

he wants to exhibit.  Do you have any objection to those pictures being exhibited?

  1. DRIMER:  No.  We’ll consent to that.

ARIF SAHINBAY:  Those are together only three

10 copies.  May I speak about this?

THE COURT:  I’m sorry?

ARIF SAHINBAY:  May I speak about this?

THE COURT:  Yes.  Yes, yes, yes.

ARIF SAHINBAY:  Okay.

15 THE COURT:  All right, Mr. Drimer, just make sure

that you’re listening so that we don’t – I mean, there are limits to this.  Okay.  Go ahead.

  1. As you see these pictures are – belongs to the other side’s car.  Soit shows the impact, how

20 severe it is and what’s the real damage there.  I

just want to give you this and you can consider – consider maybe the, the impact – the amount of the impact.  So do you have anything to say, sir?  I’m finished with this.

25 THE COURT:  You just give your evidence.

  1. Yeah.

THE COURT:   If Mr. Drimer wants to cross-examine you on this, he will.  But you finish and when you’re finished then we’ll see.

ARIF SAHINBAY:  I have one more thing.

THE COURT:  Yes?

ARIF SAHINBAY:  I have catastrophic determination form that…

THE COURT:  All right.  Now, have you – Mr. Drimer, have you seen this?

5 MR. DRIMER:  I have, Your Honour.

THE COURT:  All right.  What about this? MR. DRIMER:  We’re going to object to putting the catastrophic application form into evidence on the basis of relevancy and the fact that we do not have 10 a doctor here who could authenticate that report. THE COURT:  All right.  Let me see it.  Members of the jury, I’ll try to explain to you what this is.  This will take me just a couple of minutes.  It used to be that if you had a car accident and you

15 were injured, you would sue the other person in the

car accident, the operator of the car and the owner of the car.  Whether or not you succeeded would depend on who was at fault, whether the person in the other car was at fault.  It would take

20 sometimes many years before those lawsuits were

completed, many years before people who were quite seriously injured got any money or any compensation for the injuries they had suffered because they would have to wait out the trial process.  They 25 would have to wait out determinations of fault. My memory is not sufficiently sharp that I can remember exactly how long ago this all happened, but starting I would think 30 to 40 years ago the government chose to try and amend that system so that provision would be made for people to get some compensation immediately on what is described as a no-fault basis.  It didn’t matter whose fault it

was, within certain parameters and in certain circumstances you would get money immediately, some money, in return for which people’s ability to sue was limited in certain ways.  And I think it is

5 fair to say that the government has been struggling

to find the right balance for all this ever since because the more money insurance companies pay out, the higher your premiums are and then there’s a policy issue that they need to deal with to find

10 that balance.

One of the things that can happen is that for people who are seriously injured where the normal payments are not enough because of the seriousness

15 of their injuries, they can apply for a

determination that their injuries are – the word is catastrophic and there’s all kinds of definitions and things that apply to this.  There’s a whole process for determining whether or not you – it’s a

20 bureaucratic process for determining whether or not

you qualify for those larger payments.

This document is an application by Mr. Sahinbay to get those extended catastrophic payments.  In order 25 to get a payment like this there is a form in which

somebody needs to support the idea, like a doctor.  This has apparently, so Mr. Sahinbay says, been signed by his doctor.  There’s no doctor here.  We can’t…

ARIF SAHINBAY:  Lionel Garber.

THE COURT:  Mr. Sahinbay.

ARIF SAHINBAY:  Sorry.

THE COURT:  Thank you.  So – but the important thing to say is there’s no determination that has been made.  This is just – or there may have been, I don’t know.  All this is is the application form.

5 It doesn’t really demonstrate anything about Mr. Sahinbay’s condition.  All it does is say he has applied with the support of some doctor for this designation.  So I’m not going to let this in because it doesn’t help in the questions that you

10 need to deal with.  In fact – well it just doesn’t

help.  It’s really not part of this.  It’s part of another aspect of the processes that are available to people in Ontario today when these accidents take place.

15

So Mr. Sahinbay, I’m not going to allow this in.

I’m going to recognize Mr. Drimer’s objection. ARIF SAHINBAY:  No problem.  This is all – this is all I can say.

20 THE COURT:  Do you have anything else to say?

ARIF SAHINBAY:  No this…

THE COURT:  Just hang on.  Just a minute.  Do you want to ask any questions about what has been said?

  1. DRIMER:  I have no questions, Your Honour.

25 THE COURT:  All right okay.  You want these

pictures to be exhibited.

ARIF SAHINBAY:  Yes, please.

THE COURT:  Thank you.

COURT CLERK:  Exhibit 7.

EXHIBIT 7PICTURES OF DAMAGE TO MR. DA SILVA’s 

VEHICLEProduced and Marked 

THE COURT:  Mr. Sahinbay, I’m going to assume that’s the only reply evidence you have?

ARIF SAHINBAY:  Yes, sir.  Yes, sir.  Thank you.

5 THE COURT:  So members of the jury, we have come

now to the end of the evidence and to the point in this process when the parties make their final submissions to you about what it is they think you should take from the evidence, what findings they

10 think you should make and what decisions you ought

to come to.  Now, I’m obliged to just say this to you if I have not.  I believe I have, but I want to make it clear and I think now’s the right time.  We all watch television or at least most of us do and,

15 if you’re anything like me, you watch a lot of

lawyer shows.  I’ve learned lots of things watching the lawyer shows, but they’re almost always criminal trials and there’s always one question, was the person guilty or innocent.  That’s not the 20 question here and so we don’t leave it with juries

just to tell us, Well, what do you think about this?

In order to direct your minds to the kinds of

25 questions we need answered so we can find the right

determination for this question, we formulate specific questions depending on the particular case, which we will be asking you to answer.  And I have those questions here.  It would be open to the lawyers or Mr. Sahinbay to refer to these questions, certainly I’ll be reading them if nobody else does.  I’m wondering whether I should read

them now because that would help you understand what to listen for in the submissions that are made.  So I think will do that and, at the end, we’ll give you a copy and there’s a place to fill

5 out the various answers.  All right?

In this case, there are four questions.  The first question is, did Arif Sahinbay suffer any injury or damages as a result of the accident which took

10 place on April 9th, 2010?  And there’s a place for

the answer and it will be obvious to you.  I expect that if the answer to that question is no, there’s really no point in going any further.  If the answer to that question is yes, then there are a 15 succession of three questions that follow.

The second question is identify each of the injuries suffered by Arif Sahinbay as a result of the accident which took place on April 9th, 2010

20 and then it says, in brackets, back, shoulder,

psychological as examples.  We want you, when you assess damages, to think about what injuries you’re actually assessing so we need you to identify the ones that you attribute to the accident.

25

Number three, what amount do you award to Arif Sahinbay for general damages on account of the injuries he suffered as a result of the accident which took place on April the 9th, 2010?  And when I give you my charge I’m going to have something to say about what general damages are but, for the moment, let me just say that they are damages for pain and suffering.  They are so-called noncompensatory damages.  There’s no payment that represents these amounts.  This is simply for the pain and suffering that are a result from the

5 injuries attributable to the accident.

And number four, what amount do you award to Arif Sahinbay for loss of income on account of the injuries he suffered as a result of the accident

10 which took place on April the 9th, 2010 and I

expect everybody will have something to say about this to you in the course of the submissions and in my comments.  But Mr. Sahinbay has said something about his expectations about going to work and all

15 of that will become a consideration in the answer

to that question.

So those are the questions.  What everybody has to say about them you’re going to hear next and then 20 we’re going to leave them to you.  All right?   You may also expect that – in these circumstances, you’ll be surprised to find that it won’t be Mr. Sahinbay who is going to speak to you first.  When in this sort of circumstance, the defendant calls

25 evidence, as Mr. Drimer has done, we ask the

defendant to make his submissions first.  We don’t allow for reply when it comes to final submissions and, in those circumstances, the rules are such that we allow the plaintiff to have the last word, as it were.  So we’re going to hear from Mr.

Drimer, then we’re going to hear from Mr. Sahinbay

and then you’re going to hear from me and then I’m going to ask you to retire to deliberate.

CLOSING SUBMISSIONS BY MR. DRIMER:

5 MR. DRIMER:  Thank you, Your Honour.  Thank you

again to the ladies and gentleman of the jury.  As His Honour has indicated, we’ve reached the stage of the trial where you’ve now heard all of the evidence that you’re going to hear and the entire

10 matter will very shortly be in your hands to

decide.  You’re going to go into the jury room and reflect on everything that you’ve seen and heard.  You’re going to carefully weigh the evidence and apply your best judgment to it and you’ll decide

15 this case.

You’re – you are, as His Honour indicated, the sole judges of the facts of this case while His Honour is the judge of the law that applies.  His Honour

20 will instruct you on the law, that you must

remember that it’s your responsibility alone to decide the facts and to render a decision based on those facts.

25 I’m going to set out on behalf of the defendant, Mr. Da Silva, what we believe are the facts that you should be considering in this case.  His Honour will also provide you with some guidance in his instruction or his charge to you following the closing arguments.  However, I would ask that you remember as you listen to me, as you listen to Mr. Sahinbay and His Honour that again you, and you

alone, are the ones who determine what facts we will be using to answer the questions that are put to you to decide this case.  You must carefully consider all of the evidence that you’ve heard.

5 Now, you’ve heard from Mr. Sahinbay who told you

that his depression started in 2006 when he saw a doctor for this and was prescribed medication.  He told you that his depression got worse following an incident at the Manitoba/North Dakota border in 10 July of 2007 in which he was put in a cell with

handcuffs and released after two, two and a half hours.  He told you that he had to stop working in order to seek treatment for his condition.  He told you that his family doctor referred him to a

15 psychiatrist for treatment and that he was put on O.D.S.P.

Mr. Sahinbay then told you that he was starting to feel better and prior to the accident in April of

20 2010 he had made some plans about getting back to

work.  He had told his psychiatrist that he was going to start working again.  He also told you that he actually started looking for a job, a unionized job, something in paving or in a

25 construction capacity operating some machinery.  However, in my cross-examination, I read in portions of the evidence that Mr. Sahinbay gave at his examination for discovery back in March of 2012.  At that time, Mr. Sahinbay gave sworn answers that he did not start looking for work before the accident because he was undergoing treatment and was taking medication.  He felt that

starting to work could actually worsen his condition and that he was not capable of establishing a good rapport with coworkers, he didn’t want to harm anybody and that his medication

5 affected his reflexes and his coordination.   Mr. Sahinbay also admitted on cross-examination that when he met with his psychiatrist, Dr. Siva Superanium(ph) 18 days before this accident, he was reporting to have continued irritability and

10 episodes of depression that would plague him for up

to four days in a row.  He did not however, on cross-examination, recall that Dr. Siva Superanium (ph) doubled his dosage of the anti-depressant Prozac from 20 milligrams to 40 milligrams 18 days

15 before this car accident.

Now, in terms of his injuries alleged to have been suffered in this accident, Mr. Sahinbay told you on cross-examination that he has no memory at all of

20 the accident.  He has no memory if any part of his

body came into contact with the inside of his vehicle in the impact.  He has no recollection of having any pain to his head, to his face in the accident.  Then he files, as Exhibit number 1 in

25 this case, three MRI reports and an x-ray report.  I remind you that the MRI report on his brain found no evidence of acute or chronic intra or extra axial hemorrhage or brain contusion and it was deemed to be of little clinical significance.  The MRI of his lumbar spine found no significant abnormalities, and I’ll touch on what Dr. Liao most recently said about that.  The MRI of his left

shoulder found no evidence of rotary cuff tear and only some mild tendonopathy.  Again, I will address that in a moment.  Finally, the x-ray of his left ankle found no acute fractures and no significant

5 abnormality.  That is what is written into the

report of the radiologist who reviewed those scans. Mr. Sahinbay – I haven’t seen a SPECT scan report.  We were told about it by Mr. Sahinbay.  It’s a different sort of scan of his brain that was taken 10 following this accident.  We were told by Mr.

Sahinbay that it came back clear, showing no evidence of injury to his brain.  Now, this is all of the medical evidence that Mr. Sahinbay is relying on.  He has not called any doctors to give

15 evidence at this trial.

I asked Mr. Sahinbay in cross-examination if he had been involved in any further accidents.  He told you that he could not recall.  I then read in

20 further evidence from his examination for discovery

in March of 2012 at which time he gave answers under oath regarding a motor vehicle accident in 2011 in which he was a passenger with his friend Zuper (ph) and their vehicle rear-ended a Jeep and 25 that he was taken by ambulance to the hospital.

As mentioned earlier in my opening and afterwards, in an effort to narrow the issues in this lawsuit, we have prepared and filed as Exhibit number 2 a Statement of Agreed Facts.  These facts are outlined for you because both sides to the lawsuit agree that they are true and they are put into evidence in order to demonstrate the truthfulness of those issues.  I will not read them to you line by line, but I urge you to review them carefully in your deliberations.

5

You then heard from my client, Mr. Da Silva.  I remind you, as we indicated from the outset and His Honour did as well, the defendants in this matter have already conceded liability, responsibility for

10 the accident.  This is not an issue in this

lawsuit.  Mr. Da Silva – Mr. Da Silva, excuse me, told you that he was travelling at 50 kilometres per hour, that he slammed on his brakes and that his speed on impact was in the range of 10 to 20

15 kilometres per hour.  That was his evidence.  The

police report indicates that Mr. Da Silva’s vehicle was travelling at 50 kilometres per hour.  When that was put to Mr. Da Silva in his crossexamination, he indicated that he had been

20 travelling at 50 kilometres per hour but that his

speed on impact was 10 to 20 kilometres per hour, perhaps as an explanation for why that is the number that is indicated in the police report.

In any event, you saw the photograph that Mr. Da

25 Silva took of the rear of Mr. Sahinbay’s vehicle

immediately after the accident.  That’s been put into evidence and marked as Exhibit number 3.  This photograph reflects very minimal damage to the rear of Mr. Sahinbay’s vehicle.

Most recently, you’ve seen a photograph of what appears to be the front of the Da Silva vehicle.

What you must consider and what you must appreciate, in my submission, is that Mr. Sahinbay was not in Mr. Da Silva’s vehicle.  Therefore, the significance of what Mr. Da Silva’s vehicle looked

5 like in the impact is much less so than what Mr.

Sahinbay’s vehicle looked like after the accident.  You did not hear any mechanical or engineering evidence to the effect of why some vehicles perhaps get damaged more than others in impacts.  That’s

10 not in evidence in this case.

You have also not heard from Mr. Da Silva about any injuries that he suffered in the accident, notwithstanding any damage to his vehicle.  You’ve

15 heard from Mr. Sahinbay about his alleged injuries.  You’ve seen a photograph of what his vehicle looked like following this impact and I urge you to pay careful consideration to that, please.

20 You heard from the expert psychiatrist, Dr.

Wyndowe, yesterday.  Dr. Wyndowe told you that he conducted an independent psychiatric evaluation of Mr. Sahinbay back on March 6th of 2013.  He based his opinions and his conclusions on a number of

25 factors, including a detailed interview, a history-

taking process with Mr. Sahinbay, a review of various medical records prepared by other health practitioners and then a detailed mental status examination.  You’ll recall Dr. Wyndowe described to you several of the tests that he administered to Mr. Sahinbay during the course of this assessment, including the Montreal Cognitive Assessment Test.

And you’ll recall that he – Dr. Wyndowe showed you five sheets with various rows of symbols and characters and some pictures, just to give you an idea of the sort of testing that’s undertaken in

5 that – in the examination that Mr. Sahinbay

undertook.

Based on those factors, based on the results of the examination, Dr. Wyndowe concluded that he was not

10 able to validate Mr. Sahinbay’s complaints of poor

memory.  He also noted various inconsistencies in the – in the reports of other health professionals, whose records he reviewed after the fact.  Finally, Dr. Wyndowe concluded that there was no consistent,

15 clear evidence of any cognitive deficits and that Mr. Sahinbay did not sustain a permanent serious impairment of an important psychological or mental function as a result of this accident.

20 While Dr. Wyndowe conceded he believes that Mr. Sahinbay does have a psychological problem, he stated without hesitation that these problems are no different than what Mr. Sahinbay was experiencing before the car accident in April of

25 2010.

You just heard from physiatrist Dr. Liao, an expert in physical medicine and rehabilitation.  Dr. Liao told you that she conducted an independent medical assessment of Mr. Sahinbay on August 15th of 2013.  She based her opinion and conclusions on a number of factors.  She underwent a full process which began with a very detailed history-taking of Mr. Sahinbay right back – as far back as he would allow in terms of his symptoms, his complaints, his treatment and so on.  Then Dr. Liao undertook a

5 detailed physical examination which involved both a

musculo-skeletal and a neurological component and then only at the end, after she dictated her report, did she undertake a review of the medical literature that had been provided to her.

10

A couple of the tests – a couple of the models that Dr. Liao brought with her in order to assist you in understanding some of her findings included the hand-grip strength test that she demonstrated for

15 you and, based on this process, based on the

factors that she considered and that she reviewed, Dr. Liao concluded that there is no explanation to account for the amount of disability and impairment described by Mr. Sahinbay and her physical

20 examination did not reveal any impairment.

Dr. Liao also told you about several inconsistencies that she noted, including the suggestion that Mr. Sahinbay was not putting forth a full effort while performing the grip-strength

25 test.

Dr. Liao told you that the left should tendonopathy, when she was shown a copy of the MRI scan, could not have resulted from this rear-end impact but would typically arise from a T-bone type impact to the driver’s side of the vehicle, not a rear-end impact such as occurred in this case.  She described what appears in the MRI scan as mild inflammation to the tendon as an explanation for what tendonopathy is and indicated there is nothing to fix, there’s nothing to repair.

5

Then she moved on to the x-ray of the right ankle that was shown to – to her under cross-examination.  Dr. Liao correctly pointed out that there is no indication of any complaints after the accident

10 about Mr. Sahinbay’s right ankle in the hospital

records, in the emergency records and accordingly, Dr. Liao concluded that this was likely the result of some old or previous trauma and not as a result of the accident that we’re here today to discuss.

15

Dr. Liao was shown the MRI report of the lumbar spine and, more specifically, the L4/L5 levels.  Dr. Liao indicated that there is no herniation of the disc which is reflected in that MRI scan.

20 There’s no popping out.  There’s no impingement of

that disc and she showed you the – the cushiony disc in between the vertebrae.  There is no pinching of the nerve root, which would lead to symptoms going down into the legs, reflected in

25 that MRI scan report.  There is only – only a

minimal disc bulge, which she indicated is a normal finding common in the population.

And then finally, she was shown a copy of the MRI of the brain which she had in her possession at the time of her assessment, but she did not bother reviewing it or considering it in her report because she’s not a neurologist and she did not want to delve outside of her area of expertise.

Ladies and gentleman of the jury, you must decide

5 what evidence you can accept, if all, and what

evidence there is that you may choose to reject or give less significance to.  Some of the evidence that you heard from Mr. Sahinbay was hearsay evidence.  You’ll recall perhaps that Mr. Sahinbay 10 described hearing from his friend how the accident

happened.  You may recall that he indicated that Dr. Gavel, the neurologist, or Dr. Prutis told him what his injuries were and what the treatment options were.  I objected to that evidence being

15 put in because he himself – those – sorry, those

were not told – those were told to him by parties that are not here in person in the courtroom to relay that information to you and, for that reason,

I am asking that you give lesser weight, lesser

20 significance to that evidence when the people who

actually told him that information in all likelihood would have been available at some point to attend in Court and give you that evidence themselves.

25

I know that you have all listened carefully to the witnesses that have testified and that you will use what you have seen and what you have heard in order to determine who or what you believe to be true.  This is critically important because credibility in this case is a very significant issue – credibility, believability.  As mentioned, it’s going to be your job as a group to decide whether Mr. Sahinbay was injured as a result of this accident or not?  If you decide that he was not injured as a result of this accident, then you do

5 not need to go any further, as His Honour explained

and will explain again.

I remind you the evidence that Mr. Sahinbay stopped working well before this accident, in November of

10 2007, due to his depression and this depression

started even earlier than that, sometime in 2006.  The evidence is that this depression got worse after the incident at the border in 2007, July.  The evidence is that he saw his family doctor, Dr.

15 Masotta (ph), in 2007 reporting anxiety, depressed

mood, reduced concentration and appetite, poor sleep, lack of energy.  This was all well before the accident.

20 The evidence is that he attended for psychiatric

consultations and assessments at the St. Joseph’s Health Centre’s mental health program in 2008 and 2009 and that he was diagnosed with major depressive disorder with symptoms of post-traumatic

25 stress by Dr. Siva Superanium (ph), his treating

psychiatrist, in April of 2008, two years before the accident.

The evidence was that he was prescribed antidepressant medication in 2007 and that he continued to take this medication on a daily basis right up to the time of the accident.  The evidence is that he qualified for O.D.S.P. before the accident, Ontario Disability Support Program benefits and that these benefits have continued past the accident and to present.

5

Now, in order to qualify for O.D.S.P. there’s a very strict test that must be established, that must be proven and it requires a doctor to be able to verify that the individual suffers from a

10 substantial continuous or recurrent mental or

physical disability which is expected to last for more than one year and that this disability impairs or restricts the individual’s ability to function on a daily basis.  Mr. Sahinbay met this test

15 before the car accident.

Mr. Sahinbay told you, as – as stated earlier, that his condition was improving prior to the car accident.  In our submission, this is simply not

20 credible or believable.  Mr. Sahinbay did not stop

his treatment or his medication before the accident.  He did not resume working before the accident or even looking for work before the accident.  His O.D.S.P. payments did not stop

25 before the accident.  In reality, the dosage of his

anti-depressant medication was doubled 18 days before the car accident because Mr. Sahinbay was reporting ongoing continued irritability and his depression that would plague him for up to four days in a row.  This is not the picture of an individual who is well on the road to recovery and about to start back to work, in our respectful submission.

We are not suggesting that Mr. Sahinbay is not

5 depressed or that he does not have any

psychological problems.  Rather, what we are suggesting and what Dr. Wyndowe indicated in his conclusions is that the depression is not the result of this accident.

10

The evidence is clear that Mr. Sahinbay had depression, significant depression for at least three years before the accident and that his condition was not improving in the months and weeks

15 leading up to this accident.

You will be asked to decide, as I have indicated, whether Mr. Sahinbay sustained any injuries as a result of this accident.  He has claimed damages

20 for pain and suffering, general damages and he has

claimed damages for income loss.  Once again, if you decide, based on the evidence that you have heard, that Mr. Sahinbay was not injured as a result of this accident, then you will not need to

25 go any further.

With respect to the income loss component, there was no evidence put forward by Mr. Sahinbay in support of this alleged loss of income.  You have not seen income tax returns.  You have not heard from an employer or a prospective employer.  You have not heard from co-workers.  You have not – you do not have any information before you to assist you in calculating what Mr. Sahinbay is alleging to be a loss of income as a result of this accident.

5 Ladies and gentleman of the jury, I want to thank

you, before you begin your deliberations, for your time and attention throughout this matter.  Thank you.  Thank you, Your Honour.

10 CLOSING SUBMISSIONS BY ARIF SAHINBAY

ARIF SAHINBAY:  I would like to start with this.  I am not happy to be here without lawyer.  Unfortunately, this happened as I told you earlier and I had to deal with eight lawyers and…

15 THE COURT:  I think Mr. Sahinbay, I told you

earlier that this wasn’t really an appropriate thing for you to be saying.  The fact of the matter is you’re here and we’ve conducted this trial as we have.  Your concerns about lawyers really have

20 nothing to do with this.  When you raised it

before, I said this before as I recall it.  So can we just get on with what your concerns are insofar as the accident concerns, your injuries, your damages and what you expect – what you think the

25 jury should be looking at, what you believe they

should find.

ARIF SAHINBAY:  I will make the submissions, sir.  If you don’t help me, then I will be happy.  Thank you very much.

For five years, close to five years, I have been dealing with billion dollar companies, I have been fighting against this billion-dollars company.  Who am I?  I’m just a Canadian ordinary.  I’ve seen so much that I’ve been assaulted, I’ve been – my car was vandalized, many other things that might – an

5 MRI report missing from the hospital somehow,

hospital records.  So what I – what I know is this companies has – really, really hav power, but we don’t have it. We don’t have power and if you want to seek your rights, you have to suffer for five 10 years just like me, just like I did.

There are five facts.  Whatever happened in this courtroom didn’t change it.  Five facts.  The first one is accident.  The second one is emergency

15 ambulance report.  Third one is hospital emergency

report.  The fourth one is MRI reports that shows the damages.  And I forgot the fifth one, sorry, because my – sometimes my brain stops because of this accident happening.  So – but these are the

20 facts.  These are – didn’t change.  These – these

features didn’t change my MRI results, didn’t change – it didn’t affect or heal my pains.

Unfortunately, yes I wish I would have my doctors

25 to be here, but this is all different processing so

last month I had a lawyer.  Unfortunately, he didn’t show up the day of the hearing somehow – for my arbitration and I had to defend myself there too just like – like I’m doing here now.  That’s why I a little experience.

So I wasn’t prepared well for being myself.  That’s the reason that I didn’t – this – this affects that calling specialist here, but I’ve seen 17 specialists, specialists of the Unica Insurance

5 Company, which is the third company that I am

dealing with the benefits, 17 of them.  And when I ask to serve those reports at this, this is the insurance doctors, right?  So the insurance doctor, what will they pick?  Unfortunately, it has been

10 objected to.  They didn’t allow me to serve it.  So

even – even those reports, insurance doctors’ reports.  Why are you hesitating?  What are you afraid of?  Are you afraid of getting truths?

15 So even I had to fight – as you see, the gentleman

came yesterday and I showed him the card.  He denied that this is his card.  So what is his credibility?  He’s talking about 10 kilometres, 20 kilometres per hour.  There’s a logical conclusion,

20 no such a thing could cause this much damage – 10

to 20 kilometres, even if you hit the wall, it doesn’t cause this much damage.

He’s lying.  He was lying because police report say

25 something else and what I know is he was trying to

pass by the red light, reached the light to pass.  There are two lanes.  I was on the right lane and he was behind me.  Why don’t go to left and pass me?  Why you are coming from behind?  He was talking about there’s a car – no.  You have to watch your mirror.  This is your obligation.  Wait – wait for the car and then make your left.  Why are you coming too close to me?  I just obey the law and I stopped for red light.  Now what happened?  I am here, dealing with this – all this, for four, five years.

5

Dr. Liao, I swear to God I gave her those MRI reports.  He is my witness.  He was with me and we can prove that with the interpreter.  He’s a witness to.  So somehow she lied there too.  So

10 that kind of credibility I can’t give it to her.  There is an MRI report, even though she is denying that there is nothing, nothing.  If there is nothing, why there is – there is something on it and dorsal dislodge and how come – how come there’s

15 another specialist that I see.  She has other,

other than her – so she was saying something else twice for this.  She – she was saying, “Yes, there’s a problem here.”

20 Yes, I’ve been suffering.  Unfortunately, my family

suffered too.  If I knew it – it puts this much pain for me to come to this point, I would even touch it.  I wouldn’t even have touched it, I swear to God.  I – I – I didn’t even want to opening a

25 lawsuit to seek my justice.  Anyway, this is what

happened to me now and what I feel.

My wife is suffering.  She become depressed too, just because of my accident.  These are the truth.  And I am not here – I didn’t create this.  These are MRI reports.  I didn’t create this.  I didn’t create this either.

Yes, he was talking about the SPECT scan, that he was just changing the way of telling, explaining.  I already explained to you SPECT scan, sure it doesn’t show the damages.  No, it shows if the

5 blood flows to that damages – damaged part –

damaged parts.  Damage is already there because it only shows if the – if the blood is getting and feeding these cells over there.  That’s what it shows.  The SPECT scan means is this, it doesn’t

10 show damages.  It shows whether – if the damaged

part is getting feed by blood.  So SPECT scan by itself, it’s a proof of the damage there.

And one more thing.  I have – this lawsuit has been 15 filed by one of my ex-lawyer and he has put there $3,200,000.00 for this.  It has been logical calculation for this.  There’s a computer program, because I asked him – why this much, what – why – why it is.  Like, am I worth $3,000,000.00?  So I

20 just wonder, like, why did you do that?  He said

there’s a special calculation.  There’s an age, there’s the damages and there’s the brain damage so everything is factored there.  So that’s why on the Statement of Claim $3,000,000.00, $200,000.00

25 asking for my wife and what – the last offer that I

got from the insurance company was $200,000.00.  $200,000.00…

THE COURT:  Just a minute.  Just a second.  Stop it.  This is very unusual.  I’m going to ask you to leave the room for a moment.  Okay?

…JURY RETIRES (2:24 p.m.)

THE COURT:  You’re not allowed to mention settlement offers.  In fact, probably what I should do now is call the whole trial off.

ARIF SAHINBAY:  No, I didn’t know that.

5 THE COURT:  Just a minute.  We had enough of a

discussion that you could have told me you were planning to do that.  It’s completely wrong.  I’d like to continue despite this because I want to see if I can bring this to an end.  You’ll have some

10 appeal if there’s a problem here.  Do you

understand?

  1. DRIMER:  Yes.

THE COURT:  All right.  I don’t want to hear another word about a settlement.  Do you

15 understand?

ARIF SAHINBAY:  Sure, no problem.

THE COURT:  All right.  Bring them back.  How much longer are you going to be?

ARIF SAHINBAY:  It takes maybe 30 minutes, maybe…

20 THE COURT:  Thirty minutes?

ARIF SAHINBAY:  …maybe 15 minutes.

THE COURT:  How much?

ARIF SAHINBAY:  Maybe 15 minutes.

THE COURT:  All right.

25 ARIF SAHINBAY:  Ten minutes would be…

THE COURT:  Anything else you want to say, Mr.

Drimer?  You look like you do?

ARIF SAHINBAY:  I’m sorry.  I didn’t know that, Mr. Drimer, that I shouldn’t have mentioned this.  I’m sorry from the Court too.

THE COURT:  I want you to think about whether I should be commenting on that.  We’ll talk about it between the two.  Okay?

  1. DRIMER:  Yes.

5

…JURY ENTERS (2:27 p.m.)

THE COURT:  Okay, Mr. …

ARIF SAHINBAY:  Would you like to speak with them

10 first?

THE COURT:  No.

ARIF SAHINBAY:  Okay.  So yes, on – on Statement of Claim there is amount that has been put by – not by me, by the lawyer who is expert.  He was personal

15 injury lawyer so.  As a matter of fact, my health

is priceless.  $10,000,000.00 doesn’t cover it.  A billion dollars doesn’t cover it because health is priceless.  I cannot get this half back.  I wish I would.  Yes, I had a major depression disorder.  I

20 was working.  I was honest with you.  So I was

working that time and this incident that happened at the North Dakota/Manitoba border, this is not – it is – it is just to call off the depression.

That happened, didn’t cause of – didn’t cause the

25 depression.  It is caused of the depression.  So

that’s why I decided to slow down and just give some break sometime.  I didn’t know this could take more than one year.  At the beginning I don’t know even what is – what is depression, what was depression and that’s why my doctor says that this treatment takes more than one year.  So that’s why, thanks to him, he applied – we applied to O.D.S.P. and it has been accepted, because major depression disorder could hit anyone.

Now, this accident unfortunately made it worse.

5 Now I have severe depression.  I have severe

depression.  I have been using different medicines.

Since the accident, medicines have been changed.  So – well, it is up to you.  I respect – I will respect your decision for sure.  So this is all I

10 say.  Thank you very much.

THE COURT:  Well, I had indicated to you earlier that at his moment I might need a few minutes just to reconsider some of the things I planned to say.

So I’m going to just ask you for five minutes, I

15 don’t think it will take me any longer than that.  Then I’ll ask you to come back.  I’m going to give my charge.  It will take about – I think probably about 15 or 20 minutes.  So I suspect just as I, for once, appear to have predicted correctly, we’re 20 going to have you start your deliberations around 3:00.  I don’t think it will be much later.  So just give me five minutes?

… JURY RETIRES (2:30 p.m.)

25

  1. DRIMER:  My thinking is to simply tell them to disregard it.  It won’t have a proper effect.  If perhaps His Honour could explain the implications of a Rule 49 offer in terms of the cost consequences, the rationale behind presenting one as opposed to it being an actual assessment of the value of the case or of the damages.

THE COURT:  Is that what he’s talking about, a Rule 49 offer?

  1. DRIMER:  Yes.

THE COURT:  Okay.  Let me think about it.  All

5 right.  I understand.  What Mr. Drimer is pointing

out to me is the following.  Whatever the offer was that you got, it was given you pursuant to Rule 49 of our Rules of Civil Procedure.  It’s a very particular rule and it has a very particular

10 purpose and the purpose of the rule is to make it

clear to the person who receives it that their risk of having costs awarded against them are increased, that the point is to try and force a settlement not because it’s right, but because it’s economical.

15 And so the idea of the settlement is if you succeed

beyond the settlement, there’s no impact.  If you get less than the settlement suggests, your cost risks go up.  This has nothing to do with your injury.  That’s really what you want me to say?

20 MR. DRIMER:  Yes.

THE COURT:  And I’m inclined to think to say that because it explains it in a way which takes it.

That doesn’t only tell them don’t think about it.

It tells them why not to think about it.  Do you

25 understand?

ARIF SAHINBAY:  I do.

THE COURT:  All right.  Okay, Carlos, bring them in.

… JURY ENTERS (2:33 p.m.)

C H A R G E   T O   T H E  J U R Y

LEDERER, J (Orally):

5 Members of the jury, you have heard all of the

evidence in this case and the submissions of Arif Sahinbay and Mr. Drimer for the defendants.  I propose at this time to instruct you on the law and show you how to apply the facts as you find them to

10 that law.  Please consider my instructions as a

whole.  Do not attach any undue weight to a certain sentence or an individual part and ignore the rest.

Do not single some parts and ignore others.

15 I am obliged to tell you that after you leave and

begin your deliberations Mr. Sahinbay and Mr.

Drimer will have a chance to comment to me on what I have said to you.  It is possible that I may wish to clarify something that I say as a result of

20 those comments.  We are always concerned when we

bring jurors back in that situation that there might have a tendency to accentuate the importance of what it is I might say then.  Do not treat it in that way.  Treat it equally as you treat every

25 other comment that I am now going to make in the

course of these instructions.

You have already been told that you will be required to answer the four questions that I read you or at least to consider them.  In answering the questions you need not be unanimous.  It is sufficient if five of you agree.  It is not necessary that it be the same five for the answer to each question.  It is my duty to instruct you on the law that applies to this case and you are obliged to follow the law as I state it to you.

5 You must discard any notions or opinions of your

own about the law, about what the law should be or the views which counsel or Mr. Sahinbay may have expressed about the law insofar as those views or those statements contradict what I say considering

10 the applicable law in this case.

While I am the judge of the law, you have the sole and exclusive authority to determine the facts.  As jurors, it is your duty to decide all the questions

15 of fact submitted to you and, for that purpose, to

determine the effect and value of the evidence that you have heard.  Please remember what the lawyers say, Mr. Drimer in this case, are not facts.  What

Arif Sahinbay said, except for the time that he was

20 here in the witness box giving evidence, are not

facts.  Remember we ran into a bit of a problem yesterday with this when Mr. Sahinbay wanted to give you his views on the amount of damage that might have been caused as a result of the accident

25 and the speed that the other car must have been

going.  Similarly, what I say to you are not facts.  None of these statements are facts unless you find them to be so based on the evidence that you have heard.

Whatever it is that Mr. Sahinbay may have added in his submissions about what doctors said or what doctors he saw, you are going to have to decide whether that is supported by the evidence.  If it is not in the evidence, it is not a fact and cannot be found by you to be one.  The facts depend upon

5 the evidence.

It is your duty to consult with one another and to reach a just verdict according to the law and the evidence.  In so doing, you must be true to

10 yourselves and disregard any outside influence or

prejudice that you may have.  When you retire to your jury room, you must first select a foreman if you have not already done so.  He or she will act as the chair to preside over your discussions,

15 which should proceed in an orderly way.

Ultimately, your foreperson or chair will announce to the Court the verdict that you arrive at.

During the course of my instructions, I may refer

20 to the burden of proof.  In civil actions such as

this one, the party who asserts a claim, Mr. Sahinbay, has the burden of proving the claim on the balance of probabilities.  This is the burden that rests on the plaintiff.  In this case, the 25 plaintiff must prove the damages that are being

claimed on a balance of probabilities.  What does proof of on a balance of probabilities mean?  It does not mean proof beyond a reasonable doubt.  That is the standard that we apply in criminal cases.  For this case, if you can say in respect of a particular issue, “We think it is more probable than not,” then the burden of proof has been met.

Under our legal system, the judge has the right to comment upon the evidence of witnesses, their credibility or the inferences to be drawn from the   5 evidence.  If I do so, I want to repeat to you and

emphasize that you are in no way bound to follow my opinion as to the facts.  It is your duty to place your own interpretation on the evidence.  If you disagree with my comments, it is your duty to

10 disregard what I have said about the facts and

follow your own judgment.  Again, you are the sole judges of the facts.

In this case, as you have been told, there is no

15 issue as to liability.  Ricardo Da Silva has

acknowledged that he is at fault, that the accident was caused by his negligence.  What is left for you is the identification of any injury caused by the accident and, assuming there is such injury, the

20 assessment of any damages that result from that

injury.  There’s little doubt that Arif Sahinbay has had difficulties.  The question and this is important, is which if any of these concerns were caused or made worse by the accident?

25

Arif Sahinbay explained that he has had psychological and psychiatric problems for some years, extending back to 2006.  His evidence was that he stopped working in order to deal with these issues but, in the weeks just prior to the accident, he was feeling better and preparing to look for work.  He had not started the search because the season for construction work – remember, he said he could operate a dump truck or other construction equipment – did not begin until the end of April, which is to say three weeks after

5 the accident.  He explained that after the

accident, he had pain or problems down his left side to his shoulders.  Subsequently he had problems with his back.

10 This morning there was some discussion with Dr. Liao about his ankle.  Remember that the report that talks about the ankle talks about it as “old trauma”.  Remember that the tendonopathy that was raised this morning reflects a different kind of 15 accident than seems to have been the case here.

The suggestion in his evidence is that (that is Mr. Sahinbay’s evidence) is that the accident caused these physical problems and caused him to regress back into depression such that he could not return

20 to work.

The evidence of Dr. Wyndowe is relevant to the question of what injury was suffered as a result of this accident?  Dr. Wyndowe did an independent 25 psychiatric assessment.  He interviewed Arif

Sahinbay and conducted tests which he described for you.  He explained that psychiatrists have no objective demonstration of the problems their patients identify.  Psychiatrists only have what their patients tell them.  They use tests that have been developed and are designed to see if the complaints of the patient can be validated.

Dr. Wyndowe concluded that he could not validate the complaints of Arif Sahinbay.  His issues were no more significant after the accident than before.

5 He also reviewed past assessments of Arif Sahinbay

and noted that 18 days before the accident, Arif Sahinbay was still taking a lot of anti-depressants and, in fact, at that time his prescription was increased.

10

Now, you may be asking how are we to decide which or whether any of the complaints of Arif Sahinbay result from the accident?  The law provides you with assistance.  It recognizes what is

15 conventionally called the “but for” test.  But for

the accident, would the problem complained of have occurred?  But for the accident, would Arif Sahinbay suffered from depression of the type and depth you accept or find that he had?  But for the

20 accident, would Arif Sahinbay have suffered the

physical difficulties you find that he had?  Put differently, if there had been no accident would Arif Sahinbay suffered less than you find that he did?  If the answer to that question is no,

25 everything would have been the same even if there

had been no accident, then there is no complaint that was caused by the accident.  If the answer is yes, then you have to move to the next question.  You will have to identify which of his complaints were caused by or made worse by the accident.  Those are the injuries that will have to be assessed to determine the value of any damage that has resulted from the accident.

Remember that in respect of each claim of damages

5 the burden is on the plaintiff to prove the

accident caused or contributed to the injury.  The test to establish that causation does not – that is the “but for” test – does not need to be applied rigidly.  It is not infallible.  It is just a tool

10 to help you.  The accident as the cause of any

particular injury does not have to be established with some kind of scientific precision.  It is essentially a practical question of fact that can best be answered using your common sense.

15

I want to turn to the assessment of damages.  In assessing damages for whatever injury you find was attributable to the accident, you should as nearly as possible award the amount which will put the

20 plaintiff in the same position that he would have

been in if he had not sustained any injury.  Now, we know we cannot put an injured party back where he or she should have been if nothing had happened or would have been if nothing had happened.  You

25 must bring your reasonable common sense to bear so

that your award will be fair to all parties.  The amount awarded by you should be reasonable and not extravagant or oppressive.  On the other hand, it should not be inadequate.  Your aim should be to reach a fair balance, neither too much nor too little.  You cannot ask, “How much money would I undertake to undergo these injuries?”  The very asking of that question injects emotion into your decision-making and makes your task really impossible.  No reasonable person would charge a sum of money for an injury.

5

Instead, you should exchange views and examine each other’s reasoning and arrive at an assessment upon which at least five of you agree.  Let me repeat that in answering the questions, you need not be

10 unanimous.  If you can arrive at an answer in which

five of you agree then that is sufficient.

As I told you, all facts must be proved on a balance of probabilities.  In your assessment of

15 damages, this principle also applies to any fact on

which the plaintiff relies to prove those injuries.  For example, facts relied on to establish the injuries of Arif Sahinbay’s condition must be proved by expert testimony or otherwise on a

20 balance of probabilities. Once the scale is tipped

in favour of the party who has the burden, Arif Sahinbay, the claim is considered to be proven.  It is an all or nothing approach.

25 Let me review the different type of damage you may

wish to consider.  I am going to start with what are called general damages.  These are losses that have not required any actual outlay of money.  The purpose of such an award is to compensate a plaintiff for such things as pain, suffering, disability, inconvenience, loss of enjoyment of life.  Damages for these losses have a different purpose than other damages.  There is no market in health and happiness.  As much as we may try, it is generally not possible to put a plaintiff back in the position he would have been had the injury not

5 occurred.  Again, the sum you fix should be fair

and reasonable.  In awarding damages, you are compensating Arif Sahinbay for the consequences which flow naturally from the injuries he sustained as a result of the accident which took place on

10 April the 9th, 2010.

It would be proper for counsel and for me to give you a range of what might be a reasonable award in these cases.  You are not bound by any range that

15 is provided to you by counsel or by the judge, but

sometimes it is of some guidance. In this case, the only person that mentioned any number is Mr. Sahinbay.  He was talking in sums of $3,000,000.00 and I am obliged to say to you that that is beyond

20 anything that could possibly happen in a

circumstance like this in our law.

In terms of physical injury, and only to give you something of a guideline, and I am not sure it

25 applies directly to this case, but to give you some

notion of the sorts of numbers we think about in a somewhat different circumstance.  In a typical whiplash case where somebody’s back hurts for two or three days we would consider a range to be about one to four thousand dollars.  If a whiplash follows what is considered to be its regular course before it becomes what was referred to this morning as chronic, which is lasting potentially for a very long time, we consider that to be about 12 weeks.

For that we might extend the damages as far as

$15,000.00.  So I give you that only as a measure.

5 It does not really reflect the kind of damage or

what the actual damage that Mr. Sahinbay is referring to.

I have considered carefully whether I should give

10 you a range in reference to the psychological

difficulties that have been discussed.  I am not going to do that because it is a very difficult thing to assess but I think what you need to do, and what I am asking you to do, is to consider very

15 seriously the evidence here and what it indicates

and what it will indicate to you about the nature of any difficulty that Mr. Sahinbay has had of that kind arising from this accident.

20 I am going to turn to loss of income.  Although he

has not worked for some years, Arif Sahinbay has made a claim for loss of income.  He said in the weeks before the accident he was feeling better, that but for the accident he would have gone back

25 to work probably during the 2010 construction

season which he said would have begun at the end of April.  You will have to find whether on a balance of probabilities that would have happened.  Apart from what Arif Sahinbay said, you may want to consider what Dr. Wyndowe said.  Arif Sahinbay has a history of psychological problems.  The tests the doctor did suggest nothing different about these concerns after compared to before the accident.  His anti-depressant medication was increased 18 days before the accident.

5 If you find but for the accident he would have

returned to work, you will have to assess the value of the claim and frankly I do not know how you are going to do that here or whether it can be done.  I say that because, as Mr. Drimer has pointed out,

10 you have no idea what he was making before he was

injured or what such jobs pay?

I am going to mention to you special damages.  Now, you will realize immediately that we have not asked 15 you a question with respect to special damages and I hope you will understand why after I make these comments.  Special damages are pecuniary damages.  They represent actual expenditures that were made for medical care or other treatment costs,

20 medicine, help with household chores if it was

needed as a result of the injuries suffered.  Typically, we would expect there to be an invoice or some other demonstration that such payments have been made.

25

In this case, there is no suggestion of any payments of this sort.  I do not see how you can find that there are any special damages because there is no demonstration of them and that is why there’s no question with respect to that form of damage.

I want to talk to you a little bit about expert evidence.  I told you during the course of the trial I would return to this at this time.  Generally speaking, a witness is not entitled to

5 give opinion evidence in a court proceeding.  However, as you have seen and as you have learned, a person who has special qualifications is permitted to give such evidence to assist you in arriving at a just result.  As with other

10 witnesses, you have the duty of deciding what

weight should be given the testimony of the experts.  You do not have to accept the testimony or opinion of an expert witness.  The only reason the expert is allowed to give an opinion is to help 15 you decide issues that are being asked of you.   This is a very important point.  It is up to you decide whether any of the expert evidence is of assistance to you in making the decision asked of you in this trial.  If you decide it is not, you do

20 not have to use it.  In determining the weight you

will take into account the expert’s skill, experience and knowledge and whether it relates to the particular matter and issue, the expert’s familiarity with the facts of the case and the

25 expert’s credibility.  It is up to you to decide

how much weight you give to an expert opinion.  Even though an expert may have very high qualifications, you are not required to accept the expert’s opinion if, in your judgment, it is unsound.  Remember in this case there were two experts, Dr. Wyndowe and Dr. Liao.

Now I am going to come to my final instructions in a moment, but there is one particular matter that I want to refer to you.

5 Mr. Sahinbay made reference to a settlement offer.  I could have just let this go.  I could just ask you to disregard it.  It is not a proper thing to do and it is not something you should pay any attention to and the reason for that is that our

10 law makes special provision for settlements which

have nothing to do with an assessment of the value or anybody’s judgment about what the injuries are worth or what an award might be.  It is an assessment that has to do with the Court’s process

15 and trying to compel people to think carefully

before they bother with a trial.  Its implications are not as to the value of the damage but as to the costs of the trial.  It is a completely different question.  So for that reason not only am I asking

20 you to, I am instructing you to ignore what was

said and to realize that the reason for that is because to rely on it would mislead you as to what was done, what was said and why it was done.

25 With that, I am going to the end of my charge.  I

just have a few general comments for you.  I want to conclude by mentioning again your duty as jurors in the jury room.  When you go to your jury room, it is your duty to consult with one another and to deliberate with a view to reaching a just verdict based on the facts as you find them and on the law as I have explained it for you.  You will be given the exhibits, so you can consider them in your jury room.  Do not take a dogmatic position.  Keep an open mind.  Listen in a calm and impartial manner to what is said by your fellow jurors and put your

5 own views forward in a reasonable way.  I remind

you that your first task is to select a foreperson.  He or she will preside over your deliberations and record the answers to the questions that you have been asked.  As I have told you, any five of you

10 can agree on one answer.  It need not be the same

five on all answers.  There is no fixed routine you must follow in arriving at your verdict.  Use your best judgment.  You may take a vote at any time.  However, if you spend a reasonable amount of time

15 considering the evidence and the law and listening

to each other’s opinions, you will probably feel more confident and satisfied with your eventual verdict than if you rush things.  You may vote by raising your hand, by written ballot or by a voice

20 ballot.

If, after you retire, you require any further instruction from me or you have a question on any point you need only indicate to the deputy or one

25 of the Court officers that will be waiting outside

your jury room.  She or he will notify me so that you can have that question answered in Court.

I want to express my sincere appreciation to you for your commitment to this process.  We know we have taken you away from your normal lives.  I ask you now to retire to your jury room and to consider the answer to the questions.

I am going to just tell you one more thing.  I

5 typed the questions and apparently I do not know

how to spell the word following, so I apologize but – maybe you can just correct that?  Thanks.  Okay.

Thank you very much.

10 Maybe just one thing I will say to you.  If you get

to 4:30, because I know at some point we need to end, and you have not reached a verdict, I will bring you back and we will dismiss you for the night at that point but see how you do until then.

15

… JURY RETIRES (3:01 p.m.)

THE COURT:  Do you have any comments on what I said?

20 ARIF SAHINBAY:  No.

THE COURT:  Mr. Drimer?

  1. DRIMER:  No, Your Honour.

THE COURT:  Okay.  Do you have a cell phone with you?

25 ARIF SAHINBAY:  No.

THE COURT:  Well, you’re going to have to stay here then, I think, because what can happen is they can come back with a verdict at any moment.  We need to – what we tell people usually is, you have to be within ten minutes of the courtroom.  Otherwise, we can’t bring you back to answer questions.  We can’t answer the questions without everybody in the room including you, of course.

ARIF SAHINBAY:  Okay.

THE COURT:  So…

5 ARIF SAHINBAY:  Here’s a phone I don’t know if it

affects – my friend has phone ah he can…   THE COURT:  Well, if you have a telephone…

ARIF SAHINBAY:  …he can…

THE COURT:  …you can give the registrar the phone

10 number and if we know it will be on and if we know

you’re not going to – pardon – then you can leave as long as you’re not more than 10 minutes away.  I’m going to tell you, Mr. Sahinbay, it’s probably better in your case – it’s only an hour and a half

15 before they’re going to rise anyway – if you just

stay here.  It will just be safer.

ARIF SAHINBAY:  I will be here.

THE COURT:  All right.  Mr. Drimer, I assume you have a cell phone or something?

20 MR. DRIMER:  Yes, I do.

THE COURT:  All right so you can give it to the registrar and you know the rules?

  1. DRIMER:  Yes.

THE COURT:  So I’m going to tell you what I think

25 I’m going to do.  I have undertaken – I’m going to

start a motion as soon as this is over, quite a big one.  So I have some material to read here.  I’m going to work on that for a while.  If I get through what I’ve got here, I’m going to go back to my office and get some more.  Other than that, I’m only going to go downstairs so I expect I won’t be very far away.  Even if I go back to my office,

it’s ten minutes away but not more.  So don’t go too far and we’ll have to see what happens.  Okay.

Thank you very much.

ARIF SAHINBAY:  Thank you very much.

5

R E C E S S (3:02 p.m.)

…U P O N   R E S U M I N G (3:38 p.m.)

10 THE COURT:  We need to – I forgot at the moment we

broke.  We need to do the threshold question.  So just give me a minute here to make sure I’ve got what I need.  Mr. Sahinbay, you’re ready to deal with this?

15 ARIF SAHINBAY:  Yes, I am.

THE COURT:  okay, you understand the point of this.  We’ve been through this before, but the point is if you don’t meet the test it doesn’t much matter what the jury does insofar as general damages are

20 concerned.

ARIF SAHINBAY:  Okay.  This is different one?

THE COURT:  Pardon me?

ARIF SAHINBAY:  This is different – different than the jury.

25 THE COURT:  This is my decision.  This has got

nothing to do with the jury.

ARIF SAHINBAY:  Okay.  So this is different, totally different for me okay.

THE COURT:  Okay.  How long are we going to be on this?

  1. DRIMER:  I’ll be brief.

THE COURT:  Okay.  So you understand, he’s going to bring his motion.  He’s going to say that I should find you didn’t meet the threshold. ARIF SAHNIBAY:  Okay.

5 THE COURT:   Then you can tell me why you think I

should and that will be the end of it.  I’m not going to decide this until after the jury renders its verdict because it may not be necessary for me to make a decision.  I’m not going to make a

10 decision that’s not needed.  Do you understand? ARIF SAHINBAY:  I do.  I do, sir.  Thank you very much.

THE COURT:  I beg your pardon?

  1. DRIMER:  I do, yes.  I do understand yes.

15 THE COURT:  All right.

ARIF SAHINBAY:  I’m sorry, I’m a little tired so that’s why this…

THE COURT:  Well, we’re all a bit tired to be truthful.  Okay, Mr. Drimer.

20

SUBMISSIONS BY MR. DRIMER:

  1. DRIMER:  Thank you, Your Honour.  Yes, this motion is being brought by the defendants with

25 respect to the thresholds pursuant to s.

267.5(5)(b) of the Insurance Act.  The materials before you include the factum of the defendants including the Schedule “B” with that section of the Act and the Ontario regulation, as well as the moving parties’ Book of Authorizes and the additional case which was handed up today.

THE COURT:  So that’s the case of Mr. Simorgan 

Khan. (ph)

  1. DRIMER:  Correct.

THE COURT:  Khan and Sinclair.

5 MR. DRIMER:  Khan and Sinclair. 

THE COURT:  Okay, I have it.

  1. DRIMER:  A February 2014 case of Mr. Justice Morgan, as you’ve indicated.  That’s actually the case that I’d like to begin with and I’d like to

10 draw your attention, Your Honour, if I could to

that regulation, the Ontario regulation 461/96, which is referred to in – on page two, paragraph number five of that case.  No this case, sir.

ARIF SAHINBAY:  Oh, this is one here?

15 MR. DRIMER:  Yes.

ARIF SAHINBAY:  Yeah, this one?

  1. DRIMER:  Yes.

ARIF SAHINBAY:  Yeah okay.

  1. DRIMER:  The regulation indicates at 4.3(1), “A

20 person shall, in addition to any other evidence,

adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent, serious impairment of an important physical, mental or psychological

25 function for the purposes of s. 267.5 of the act.”  (2), “The person shall adduce evidence from one or more physicians in accordance with the section that explains (a) the nature of the impairment, (b) the permanence of the impairment, (c) the specific function that is impaired, and (d) the importance of the specific function to the person.”

(3) goes on to state that, “The evidence of the physician shall be adduced by a physician who is trained for and experienced in the assessment and treatment of the type of impairment that is alleged

5 and shall be based on medical evidence in

accordance with the generally accepted guidelines or standards of practice in medicine.”  (4), “The evidence of a physician shall include a conclusion that the impairment is directly or indirectly

10 sustained as a result of the use and operation of

an automobile.”

In this case, the case of Khan that I’m referring to, at paragraph 7, Justice Morgan indicates that

15 the plaintiff did not adduce the evidence of any

physician at trial.  Khan, the plaintiff, had four witnesses, including Khan himself, his spouse, his father and an occupational therapist.  None of those witnesses was a licensed physician and none 20 of them provided any medical evidence.

At paragraph 8, the last sentence of the paragraph, “Since there was no evidence from a qualified physician or medical expert, no one opined or

25 concluded that the impairment alleged by the

plaintiff is directly or indirectly sustained as a result of the use or operation of an automobile.”

At paragraph 10, the second sentence, “Section 4.3(3)(a) of the regulation states that the requisite medical evidence must be provided by a specialist in the actual field implicated by the plaintiff’s alleged impairment.  This, she argues, shows that the government in promulgating the regulation was very concerned that specialized medical evidence be adduced in support of any claim

5 relating to a motor vehicle accident.”

The next paragraph, “The strict evidentiary requirements of s. 4.3 of the regulation for establishing the criteria for liability under s.

10 267.5(5) of the Act may produce severe consequences

for claimants in motor vehicle cases.  Those consequences, however, appear to lie at the very heart of the policy embodied by the legislative provisions.”

15

Going down to paragraph 12, second sentence – sorry, third sentence, “However, it is not legally cognizable for a plaintiff to complain that the Act and the regulation there under have the effect of

20 eliminating his claim.  That was the legislation’s

very purpose.  Claims not supported by a physician’s evidence do not meet the statutory threshold and cannot succeed.”

25 Next paragraph, “This conclusion is further

supported by the Divisional Court’s judgment in Gyorffy v. Drury of 2013.  There the Court had to consider the nature of the corroborating evidence required by s. 4.3(5) of the regulation.  The Court accepted that the evidence of the plaintiff himself could corroborate the physician’s evidence of permanent serious impairment, but it was clear that first and foremost the evidence of a physician is required.”

Next paragraph, “The evidence of laypersons such as

5 the plaintiff and his family members can only be

adduced as further support for a physician’s medical evidence, not in place of it.  As the Divisional Court put it at paragraph 18 of Gyorffy, s. 4.3 read a whole is concerned primarily with the

10 evidence of physicians and the requirements their

evidence must satisfy.  It requires that there be such evidence in addition to any other evidence.”

And then I draw your attention to paragraph 15, as

15 I believe that it’s extremely relevant in this

case, “Ms. Nguyen, who is the defence counsel, correctly points out that s. 4.3 of the regulation contains no relieving provision.  The failure to produce a physician’s evidence cannot be taken as a 20 mere procedural oversight.  Rather, it is a failure

to fulfill a key evidentiary requirement specifically set out in the governing legislative instrument.  Having failed to adduce any medical evidence from a physician, the plaintiff has failed 25 to support the claim that he has suffered permanent

serious impairment of an important physical, mental or psychological function.  Accordingly, the defendants cannot be held liable for the plaintiff’s non-pecuniary losses.”

And finally, “The defendants shall have a declaration that the plaintiff’s claims for nonpecuniary general damages are barred as a result of his failure to establish that his injuries fall within the exception to s. 267.5(5)(b) of the Act.”

5 Your Honour, in this trial Mr. Sahinbay has not

called any medical evidence.  He has not called the expert evidence – expert medical evidence as is required pursuant to regulation.  As indicated in the Kahn case, the decision of Justice Morgan, the

10 evidence was that this was not merely a procedural

oversight.  This was a failure to fulfill a key evidentiary requirement as is set out in the regulation of the governing legislative instrument and therefore, it is the defendants’ position that

15 Mr. Sahinbay’s claims for non-pecuniary general

damages be barred as a result of his failure to establish that his injuries fall within the statutory threshold.  Thank you.

THE COURT:  That’s it?

20 MR. DRIMER:  Yes.

THE COURT:  All right.  Mr. Sahinbay?

ARIF SAHINBAY:  Thanks Your Honour.

THE COURT:  Mr. Sahinbay you remember that – well,

I guess there’s two things to be said.  We

25 discussed this the last time.  I explained to you

what the test was and we looked at s. 267.5… ARIF SAHINBAY:  Yes, I have it.

THE COURT:  …(5) of the Insurance Act and you’re going to have to meet that standard.  Mr. Drimer’s submission, however, goes to a more fundamental point.  His fundamental point is that in order to prove the threshold has been met you need to have, under the Act, the evidence of a doctor and he says you don’t have that and therefore I have no choice, he would say, but to say you have not – you have not and cannot, on the evidence, meet the

5 threshold.

SUBMISSIONS BY ARIF SAHINBAY:

ARIF SAHINBAY:  Okay.  I – I would like to start from my application for catastrophic determination.

10 Will you accept this as – for this threshold,

because this is – this is the medical evidence – evidence?  It has…

THE COURT:  Well, if you’re asking me will it satisfy the requirements of a doctor’s evidence the

15 answer to that question is no because it’s the

doctor’s evidence in the trial.  That’s not doctor’s evidence at the trial for the reasons I explained in the course of the trial.  So the answer to your question is no.  That’s not going to

20 get you over the problem to which Mr. Drimer has

referred.

ARIF SAHINBAY:  Okay so OCF19 doesn’t get me anywhere.

THE COURT:  I beg your pardon?

25 ARIF SAHINBAY:  OCF19 doesn’t get me anywhere for

threshold.  You’re – you’re sure?  So it’s one… THE COURT:  You know what?  I’m not going to do this with you.  You tell me what you want to tell me and if I have to make this decision…

ARIF SAHINBAY:  No, no.  I just try to understand, sir.  It’s okay.

THE COURT:  Well, if you want to submit to me the fact that you receive O.D.S.P. and someone qualifies you for or gets you around this problem, you tell me how that is.  I can’t do this with you.

5 I can’t be telling you what the law is as we go

along.  I’ve tried to explain to you, as best as I can, what your responsibilities are here.  From the beginning, I’ve tried to point out to you the procedure.  Now you want to discuss the legal

10 implications of things.  I can’t do that.  That’s

not fair to Mr. Drimer.  I don’t know where this is all going.  You tell me why it is you meet the threshold?  You’ve had this for two or three days.

At the time at which you got it, I discussed it

15 with you in some detail as I recall it.  You tell

me why you meet the threshold.  That’s the best we can do right now.

ARIF SAHINBAY:  Sure.  Sorry about that, Your

Honour.  I meet the threshold because I have a

20 serious impairment damages.  These damages has been

proved by the MRI reports, that they are certain and acceptable by the Court.  So because of this, after the accident I’m – I’m still off on O.D.S.P.  That’s why these permanent damages need to keep –

25 keep me in O.D.S.P. eligibility.  So this is the

other proof.  And beside brain – brain injury, I have psychologically – psychological issue, which is like I had major depression disorder and now unfortunately, I have severe depression disorder.  Your Honour, I would like to come to this Superior

Court of Justice moving parties’ Book of Authorities.  May I start?

THE COURT:  Yes.

ARIF SAHINBAY:  Okay.  At tab first, there is only currently pain.  No MRI report, no x-ray, no brain injury, no C.A.T. determination, nothing.  This has

5 no relevance, the point is.  Tab two, soft tissue

and one fracture, a fracture which could heal so it’s not permanent and again this has nothing to do with my case either.  Nor one with my case because no brain injury, no MRI, no x-rays or – well, there

10 is x-rays but if he doesn’t – he doesn’t or she

doesn’t have any mental issues here.  Number three, Re: Challenger, shoulder and neck pain.  No MRI, no x-ray, nothing here.  Sherman, now at tab – tab four, neck nerve MRI.  There is no brain damages,

15 no C.A.T. issue, no mental health issue.  Tab five

doesn’t have anything, no MRI, no x-ray, nothing.  It’s just by speech, I guess, this gentleman tried to be – get this point and doesn’t have any evidence that prove to permanent damage and severe

20 damage.

Tab six, soft tissue, nothing else.  Again, no MRI, no x-ray, no C.A.T., no heart – no mental issues.  Tab seven – tab seven is – is – has nothing to do

25 with this because this is just a – I don’t know why

this has been here, financial information about the plan.  This is just information about insurance stuff, just nothing.  There are no related to my case.  Even the – this is not a case, so – tab eight, 76 years old lady.  Tab eight, 76 years old lady.  Head injury.  Again, no x-ray, no MRI, no brain injury, no matter.

Tab nine, again no MRI, no x-ray, only shoulder pain.  Tab 10, one MRI from lower back, nothing else and they don’t have any C.A.T. – none of them   5 has any C.A.T.’s because none of them has any O.D.S.P.  They are not on O.D.S.P. so government doesn’t accept their disability.

On this one, the last – the last one, again this

10 has – I don’t – I didn’t – I couldn’t find any –

any to – what is it called, MRI report.  I don’t – I didn’t – I couldn’t see any O.D.S.P, that he has been accepted.  I didn’t see any – any x-rays here.

So these are – these gentlemen couldn’t provide

15 expert medical evidence but I did it.  I could

provide expert medical evidence.  I did by C.A.T. – C.A.T. report.  This is an expert.  Medical evidence also in my MRI’s are showing that.  Expert medical evidence, it says that we can constitute

20 this.

So I do have permanent damages.  I do have serious permanent injuries, so that’s why I’m still on

O.D.S.P. because of this accident.  That’s why –

25 that’s why I’m here.  So thank you very much, sir.

That’s all I can say.

THE COURT:  Mr. Drimer?

  1. DRIMER:  Your Honour, thank you, I’d only like to add that if Your Honour feels or believes that Mr. Sahinbay did, in fact, meet the procedural requirements under the regulation, it’s our submission that he still does not meet the threshold test based on the evidence that was presented by Dr. Liao in terms of his physical injuries and by Dr. Wyndowe in terms of his mental and psychological injuries, both of whom came to

5 the conclusion that he did not sustain any

impairments as a direct result of the motor vehicle accident in question.

THE COURT:  Okay.

  1. DRIMER:  Thank you.

10 THE COURT:  All right.  Okay well, at this point

there’s really now nothing for us to do but see what happens in the next 35 minutes.  Because of the one juror, I’m going to bring them in rather than just have them leave this time because we need

15 to figure out what we’re going to do tomorrow in

view of the various sort of time constraints that are operating here.  So my medical appointment is at 10:15.  I’m going to go there probably around

9:00 because I have to go to the periodontist

20 before I go to the doctor.  But I’m going to sit – I’m going to phone them and say, “If I sit in the office, is there any chance I can get seen sooner rather than later?” to which I was told they’re double, triple booked so it’s not looking good.

25 But anyway, what I’m going to propose is that –

also I’m trying to start this other matter, if I can, and I will start it even if the jury is still – I’ll probably just start it here, if the jury has not rendered its verdict.  So I’m going to tell them I’m going to start at 1:00.  I’m going to try to get here by noon.  So I’m going to suggest that the jury get here by 11:00 at the latest, depending on where they think they are, and hope that it will all sort of straighten itself out.

So that will mean that you should both be here by

5 the time I’m expecting to get here, which would be

noon.  If they make a decision before then, they’ll just have to wait, I guess.  Okay?  So we’ll see what happens in the next 25 minutes and we’ll go from there.

10 MR. DRIMER:  Okay.

ARIF SAHINBAY:  I didn’t understand?  I – sorry.

We be – we are waiting here 25 minutes?

THE COURT:  Well, one of the jurors left me a note last night through the Court officer saying that

15 they can’t – whoever it is, and I don’t know which

one it is can’t stay beyond 4:30 today.

ARIF SAHINBAY:  Okay.

THE COURT:  So I’m going to have to excuse them today at about 25 after 4:00 to make sure that I

20 pay attention to their needs.

ARIF SAHINBAY:  Okay.

THE COURT:  So I’m going to wait 25 minutes and see if anything happens, if they have any questions or if they come back with a decision.  If they come

25 back with a decision, then none of what I just said

matters.  If they don’t, then we’ll have to figure out what we’re going to do tomorrow.

ARIF SAHINBAY:  Oh, okay.  So it’s going to be tomorrow then?

THE COURT:  If they don’t – yes, if they don’t.

ARIF SAHINBAY:  If they don’t, yes.

THE COURT:  That’s right.  Okay?  Any questions?

ARIF SAHINBAY:  Can I go downstairs again because… THE COURT:  Have you got a telephone?

ARIF SAHINBAY:  Yes, the phone number is… THE COURT:  Do they have the phone number?

5 ARIF SAHINBAY:  They have it.

THE COURT:  Okay.  But don’t leave the building…

ARIF SAHINBAY:  No, no, no…

THE COURT:  …because we’ll need you quickly when we need you.

10 ARIF SAHINBAY:  …I’ll be downstairs.

THE COURT:  All right.

ARIF SAHINBAY:  Until 25, right, you said?

THE COURT:  At 4:25 be back here.

ARIF SAHINBAY:  Four twenty-five I’ll be back here.

15 Thank you.  Okay.  Thank you very much.  Sorry.

… R E C E S S (3:59 p.m.)

20 …U P O N  R E S U M I N G (4:15 p.m.)

THE COURT:  Okay.  I am advised that they have a decision.  So what we’re going to do is there’s one thing we need to do just to complete the record.

25 We need to have the Court officers sworn in.  So

when we bring the jury in, we’ll do that.  Then I’m going to ask them the questions.  The answers – I’m just going to tell the registrar how I want to do this, which I want you to do to get them from them.  I want you to give it to me.  I’m going to read it and then I’m going to give it to you to read to everybody.  I’m not going to read it out loud, but

I want to know before you read it what’s happening here.  Okay?  All right.  Bring them in.

… JURY ENTERS (4:17 p.m.)

5 JENNY TANG, AFFIRMED

ANNE DE FELICE, SWORN

CARLOS SIESTO(ph), SWORN

COURT REGISTRAR:  Members of the jury, have you 10 answered the questions asked by His Honour?

JURY FOREPERSON:  We have.

COURT REGISTRAR:  Are these your answers?

JURY FOREPERSON:  They are.

COURT REGISTRAR:  Question number one, did Arif

15 Sahinbay suffer any injury or damage as a result of

the accident which took place on April 9th, 2010?

Answer, no.

THE COURT:  Okay.  Ladies and gentlemen of the jury, thank you for your attention.  Thank you for

20 your cooperation.  Thank you for your patience and,

most of all, thank you for your service.  We appreciate that you would come down and help us this way.  I hope that you will found it an interesting and an educational experience.  So

25 again, thank you for your service.  You’re excused.

… JURY RELEASED (4:19 p.m.)

THE COURT:  Okay.  I won’t have to make a decision on the threshold in this situation because there is no liability that has been found.  The only issue that remains would be the question of costs.  Do you want me to make any submissions in that regard? MR. DRIMER:  We would.  The defence would like to make submissions as to costs.  We’re not prepared

5 unfortunately at this moment to make those

submissions.  It’s – unfortunately, the – my partner was at another law firm.  She’s now at my law firm.  The records with respect to her carriage of the file from her previous law firm have not

10 been provided to us yet to be able to calculate the

time that was spent on the file at that firm. THE COURT:  Oh, I see.  Just to make an observation, every once in a while you get one of these and you wonder, really, what the purpose of 15 costs is if you’re sitting in my position and I’m

not really sure here what it is, but you have a right to make those submissions.  I’m sorry you can’t make them today.  I think it would have been better if we could have resolved this.  I take it

20 you have some sort of obligation to the prior firm

to be sure that their rights are preserved? MR. DRIMER:  Yes.  I can also advise the Court that there are a number of charging Orders that are in place.  Mr. Sahinbay’s previous counsel, they have

25 certain rights as well if any dollars are paid out. THE COURT:  Can we do this without your appearing again?

  1. DRIMER:  I believe so.

THE COURT:  Mr. Sahinbay you’ll remember that at a certain point, and I don’t remember the circumstances, we discussed the fact that if you were not successful it was possible that Mr. Drimer would ask for costs.  In the circumstances, because this happens sometimes the lawyer has changed firms – when a lawyer changes firms and brings the file with them, as I guess must have happened here…

5 MR. DRIMER:  Yes.

THE COURT:  …the old law firm says, “Well, that’s okay but some of the money that is earned by that file was earned by us.  We understand you’re not in a position to pay for it now, but if you take the

10 file you are under an obligation to protect our

position.”  Do you understand what I’m saying?

ARIF SAHINBAY:  Sorry?

THE COURT:  I hope you do.  So Mr. Drimer’s saying he wants a bit of time before he makes his

15 application for costs and he says it can be done in

writing.  So this is what we’re going to do.  I’m going to tell Mr. Drimer – how long is this going to take?

  1. DRIMER:  Two weeks I believe would be a fair

20 estimate.

THE COURT:  Well, that’s usually what I do in these circumstances.  So I’m going to say to Mr. Drimer that you have to have and I have to get a copy of whatever he’s going to send within two weeks.  I’m 25 going to tell him, as I tell other people in these

circumstances, that I don’t want any written submissions that are longer than four pages typed and double-spaced.  You can send in whatever cases you want.  You can send me your dockets, of course.  But in terms of written submissions, I don’t want anything more than that.  There’s no need for it.

What will happen then Mr. Sahinbay, is that you’ll have ten days to respond in writing and I’m going to say the same thing to you.  You can send me whatever cases you like.  You won’t have any

5 dockets because you haven’t paid for a lawyer or

anything like that, but if you want to send me some cases, that’s if you find any, that’s fine.  Or you can just send me your argument in writing but not more than four pages, double-spaced.  Do you

10 understand?

ARIF SAHINBAY:  Okay.

THE COURT:  And Mr. Drimer, in this case I think I’m not going to through the issue of reply.  I can’t imagine that’s going to be necessary and it

15 just complicates this.

  1. DRIMER:  Yes.

THE COURT:  So what you need to do is I’m going to ask Mr. Drimer to help me on this because I need the help and because it’s frankly he’s in the

20 situation that I’m in.  It’s pretty much the

situation I’m in.  So what I need to do, Mr. Drimer, is make sure you have Mr. Sahinbay’s address so you can send this to him, make sure Mr.

Sahinbay has the Court address which is – I’m just

25 going to tell you – to my attention, Judge’s

Administration, Room 170, 361 University Avenue and whatever the – I don’t know what the postal code is and make sure Mr. Sahinbay has that from you in writing before we leave now so he’s got it.  Ten days after you get the stuff from him, I want to get something from you at that address and then I will – I want you to send me his address at the same time, okay, which I don’t have.  And then I will have the answer sent to both of you.  Do you understand, Mr. Sahinbay?

ARIF SAHINBAY:  I do understand, yes.

5 THE COURT:  Okay so I need the Trial Record.  You

know what?  I’m going to just adjourn for about five minutes and then I’m going to come back and fill this out.  So if you two would just wait for me, I’d appreciate it.  All right.

10

R E C E S S

…U P O N   R E S U M I N G

15 THE COURT:  All right.  So I’m going to have to

endorse the record just to catch all of this, so just give me a second, okay?  Okay.  I’m going to wish you luck, I’m going to read this.  My handwriting is particularly lousy, but anyway.

20 November 19, 2014, this matter has been tried.  The

jury has determined the plaintiff suffered no damages arising from or as a result of the accident.  The case is dismissed.  Counsel for the defendants is not prepared to deal with costs as

25 the file is subject to a charging order from

another firm.

  1. DRIMER:  Multiple firms.

THE COURT:  From other firms.  I smell trouble here.  I’ll just tell you.  You know, he’s obviously got limited ability to pay and I’m not going to easily be just putting a big bill at his feet.  It’s going to have to be justified.

  1. DRIMER:  I understand.

THE COURT:  Charging orders, all right, from other firms.  Accordingly, I order the following.  Within 15 days, counsel for the defendants will deliver

5 written submissions as to costs, such submissions

to be no longer than four pages double-spaced, excluding any Bill of Costs, costs outline or case law that may be delivered.  These submissions are to be delivered to the Court office, to my

10 attention at 361 University Avenue, Room 170,

Judge’s Administration, and to the plaintiff at whatever address he provides to counsel.  Within ten days thereafter, the plaintiff will respond with written submissions no longer than four pages

15 double-spaced…

ARIF SAHINBAY:  Okay.

THE COURT:  …not including any case law that may be provided.  Since the plaintiff was selfrepresented, there can be no Bill of Costs or costs

20 outline.  The plaintiff is to deliver a copy to

counsel for the defendants at his office and to me at 361 University Avenue, Room 170, Judge’s Administration with the return address for delivery of any decision I may render.  That’s it.  Okay? 25 THE COURT:  Mr. Sahinbay I wish you luck.

ARIF SAHINBAY:  Thank you very much I appreciate sir.

THE COURT:  I hope you get better.  I hope you get to go back to work.  I hope you get to have a happier life.

ARIF SAHINBAY:  I am happy.  I will die peacefully.

Thank you.

THE COURT:  I beg your pardon?

ARIF SAHINBAY:  I will die peacefully.

THE COURT:  Okay well, I’m  happy for you then.

ARIF SAHINBAY:  Thank you.  I appreciate, sir.

5 THE COURT:  Mr. Drimer, thank you very much.  I

look forward to seeing you again with some other case some other time. MR. DRIMER:  Thank you, Your Honour.

10

…ADJOURNED (4:45 p.m.)

15

20

25

 

FORM 2 

 

Certificate of Transcript 

Evidence Act, subsection 5(2)  

5 I Tammy Irvine, certify that this document is a true and accurate transcript of the duplicate recording of Arif Sahinbay, Dilek Sahinbay vs. Ricardo Da Silva and Isilda Da Silva in the Superior Court of Justice held at Toronto, Ontario on November 19, 2014, taken from Recording No. 4899-701-20141119-

094156-10-LEDERET, which has been certified

10

in Form 1.

April 5, 2015             Tammy Irvine (NOT ORIGINALLY SIGNED)

……………..        ………………, Court Reporter

15      (Date)              (Authorized Person)  

Legend

(sic) – Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – Indicates preceding word has been spelled phonetically.

20

 

 

 

 

 

25  

 

Photocopies of this transcript are not certified and have not been paid for unless they bear the original signature of Tammy Irvine, and accordingly are in direct violation of the Ontario 

Regulation 587/91, Courts of Justice Act, January 1, 1990. 

 

FORM 2 

 

Certificate of Transcript 

Evidence Act, subsection 5(2)  

5

I Tammy Irvine, certify that this document is a true and accurate transcript of the duplicate recording of Arif Sahinbay, Dilek Sahinbay vs. Ricardo Da Silva and Isilda Da Silva in the Superior Court of Justice held at Toronto, Ontario on November 1-

 

Advertisements

One thought on “Transcrip of the tort trial(Edited edition)”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.