Law360 Canada ( December 8, 2021, 6:25 AM EST) -- Appeal by the defendant from a trial decision discharging the jury and awarding the respondent damages. The respondent sued for injuries suffered in a motor vehicle accident. He claimed that he suffered soft tissue injuries that rendered him incapable of continuing to work in the construction industry. Liability was admitted. Mussett, an orthopaedic surgeon, assessed the respondent in 2014, four years before trial, at the request of the respondent’s accident benefits insurer. Musssett was provided no medical documentation, did not see the respondent or review any medical reports after that date. At no time prior to his cross-examination as a non-party expert was Mussett asked to assess the respondent’s ability to return to work. In the appellant’s cross-examination of Mussett at trial, counsel sought, and Mussett gave, opinion evidence for the first time, that the respondent’s muscle spasm condition was not enough to prevent him from working and was not disabling. After re-examining Musset, the respondent sought an order discharging the jury, arguing that notwithstanding his right to re-examine, the cross-examination was seriously unfair, unexpected and elicited opinion evidence from Mussett on matters that were not included in his report. The respondent claimed this irreparably damaged his principal claim that he was no longer able to work in construction. The trial judge found Mussett’s evidence was simply too impactful for the jury to disregard it and it would inevitably influence their assessment of the other expert testimony in this case and that justice to the parties would be best served by discharging the jury and continuing the trial before him alone....