Davies v. Clarington – The End of An Era

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With the release of the Court of Appeal’s decision Davies v. Clarington (Municipality), 2023 ONCA 376, it appears that this case has finally come to an end.  As one of many defence counsel involved in this case,  I can finally comment on it.  For those of you who don’t know, Davies is a class action that arose as a result of a train accident.  It is notable for a number of decisions, including the often-cited Court of Appeal decision in Davies v. Clarington (Municipality), 2009 ONCA 722 on the issue of costs. 

Davies is also reported as being the longest personal injury trial in Ontario, spanning 106 days of trial time over 2 years.  The reason?  The parties were conducting one very long damages assessment of the last remaining class member, Christopher Zuber.  In the end, Zuber consumed immeasurable judicial resources for a case that should have been easily provable through documents (if Zuber had actually retained any).  As Edwards J. stated in his cost endorsement following the trial, this case was the “poster child for what our civil justice system can no longer accommodate.”

The length of this trial is eclipsed only by the length of the case itself.  To give you some context on how long this lasted, the train accident occurred in 1999.  At that time, I was still in the process of completing my undergraduate degree.  The common issues liability trial took place in 2006, when I was in my second year of law school.  When I joined the firm in 2009 as a first year associate, the class action had recently settled, and Zuber’s personal damages claim was just getting into gear.  Between 2009 and 2014, I argued no less than 6 motions dealing with amendments, undertakings, refusals, and security for costs.

The trial started in 2014, and ended in 2016.  What did we do for 106 days, you ask?  Well, for starters, we argued more motions.  There were at least 5 mid-trial written endorsements.  The court’s rulings included an order that the evidence could be called via video conference (in 2016!), the scope of participant expert evidence, the exclusion of various experts called by the plaintiff, and a determination as to whether Zuber’s past criminal history was admissible at trial despite being reportedly “expunged” in Poland.

Zuber claimed damages of over $50 million, largely on the basis of his (alleged) economic loss.  Over the course of 106 days, Zuber called, or attempted to call, 25 lay witnesses in respect of his economic loss, 7 participant treating practitioners, and 11 expert witnesses (6 of which were excluded by the defence).  Zuber himself spent nearly a month in the stand giving evidence and being cross-examined. 

At the end of the day, Zuber was only awarded general damages of $50,000.00.  His claim was far eclipsed by the $3.4 million in costs collectively awarded to the defendants.  Although Zuber took out more than $400,000.00 in litigation loans (with millions in accumulated interest by the time of trial), the recent Court of Appeal decision confirmed that the defendants were not entitled to recover their costs from the litigation loan providers.

And so the saga of Davies has finally come to a close.  Two of the defence counsel involved have already retired.  I’m not quite ready yet to go.  Excuse me while I try to find the next Davies v. Clarington

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