Law Times

Law Times • augusT 6, 2018 Page 13 www.lawtimesnews.com Long PI trial ends with $50,000 damages award BY MICHAEL MCKIERNAN For Law Times A man's $60-million per- sonal injury claim has ended with a $50,000 damages award follow- ing a spectacular 26-week trial that the judge believes may be the longest in Ontario's history. Christopher Zuber alleged in- juries suffered in a VIA Rail crash cost him his multi-million-dollar consulting business back home in Poland, but in his decision in Davies v. The Corporation of the Municipality of Clarington, Ontario Superior Court Justice Mark Edwards ruled his claim was derailed by a combination of credibility issues and documen- tary deficiency. "Fundamentally, Zuber has failed to prove on a balance of probabilities that the accident caused him anything other than relatively minor injuries. He has failed to prove that what injuries he did suffer caused him to lose an income either past or future," the judge concluded. "The end result of a trial that spanned 106 trial days, spread out over more than two years and involved witnesses testify- ing from various parts of the world, is for the reasons I have reviewed a net recovery to the Plaintiff of an award of $50,000 in general damages. I make no award for past or future loss of income, and no award for past or future care costs." Zuber's odyssey dates back to the 1999 derailment of a train part-way through its journey from Toronto to Montreal. A citizen of both Poland and Aus- tralia, Zuber had established himself as a fixture in the Polish business community in the early 1990s as the country emerged from the Communist era, con- sulting for various major com- panies, according to the decision. Coincidentally, he was in Canada at the time of the acci- dent to meet with VIA execu- tives in his consulting capacity, and he actually made the ap- pointment after completing his journey to Montreal by bus fol- lowing his discharge from hos- pital. According to the decision, X-rays taken during that visit showed no fractures or prob- lems with Zuber's vertebrae, but he testified that his pain became excruciating by the time he re- turned to Poland shortly after. A class action was launched on behalf of victims of the crash in 2000, and the issue of liability was settled in 2007 following a trial, leaving individual class members to settle damages indi- vidually with the defendants. Edwards' decision says Zu- ber's claim for damages totalled more than $60 million, largely as a result of his alleged future in- come loss, which was pegged at around US$2.5 million per year until age 65, based on an aver- age of his claimed pre-accident earnings during the late 1990s. However, he never produced his tax returns to back up the claims, and he said most of his business was done in cash any- way, so it would not have been re- f lected in his declared earnings. Despite Zuber wheeling out an extraordinary array of wit- nesses, including accountants, associates and characters from across the Polish business and political elite, such as the heads of banks and former govern- ment ministers, Edwards was unconvinced. "There were far too many in- stances during the course of this trial where Zuber and his vari- ous supporting cast of witnesses were caught in inconsistencies and outright lies — as it relates to his claim for loss of income, for this court to accept Zuber's theory," he wrote. Despite the complexity of the case, Jeremy Magence, a person- al injury lawyer with Toronto firm Bergel Magence LLP, says it offers some simple lessons for plaintiffs. "If your claim is all based on anecdotal evidence from indi- viduals, you need a paper trail to back it up," he says. "If you don't have the documentation, people won't want to take your word for it, especially if there's $60 mil- lion involved." The judge was also doubt- ful about the extent of Zuber's injuries, which he claimed had forced him to wind down his travel and curtailed business af- fairs. The plaintiff 's counsel, To- ronto lawyer Jeffrey Strype, did not respond to requests for com- ment from Law Times. David Merner, a partner at Black Sutherland LLP, who acted for VIA Rail, says he and his clients were "obviously quite pleased" with Edwards' deci- sion. "It was a very expensive trial, but there really was no alterna- tive. Halfway through the plain- tiff 's evidence, they were still indicating they wanted multiple millions, but we weren't seeing any basis for it," he says. Merner says he was also pleas- antly surprised by the quality of the videoconferencing technol- ogy in court, which allowed the bulk of Zuber's witnesses to give evidence from close to their homes in eastern Europe. "We collectively opposed hav- ing evidence given that way, and I'm still not wildly happy about it, but I must concede it made certain aspects easier," he says. "We had a representative in the room for most of the evidence in Poland, and it didn't seem to have been a huge problem." Despite its length, Toronto personal injury lawyer Brian Goldfinger says Edwards' 464-paragraph tome is well worth a read — and not just for the remarkable facts of the case. "If anyone wants to under- stand how personal injury cases work in Ontario, this is a great starting point. It has everything: credibility, causation, damages, trial management and much more," he says. LT Personal Injury Law Your injured client needs more than a settlement. STRUCTURE IT EVERY TIME. 1.800.265.8381| www.mckellar.com Advocate for certainty. Your client will thank you. Untitled-2 1 2018-07-31 3:25 PM David Merner says he and his clients were 'obviously quite pleased' with a recent Ontario Superior Court of Justice decision.

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