COURT OF APPEAL FOR ONTARIO
LABROSSE, WEILER and CHARRON JJ.A.
B E T W E E N :
Paul Rouleau and
LUC LEVESQUE
Michelle Vaillancourt,
for the appellant
Appellant
(Plaintiff)
- and -
Michael O’Neill,
for the respondent
BERTHIER LEVESQUE
Respondent
(Defendant)
Heard: November 6, 2001
On appeal from the judgment of Justice R. Stortini dated February 12, 1998.
1The appellant, Luc Levesque, is the son of the respondent Berthier Levesque. This action arises out of a collision on a gravel cottage road between the four-wheel all-terrain vehicle driven by the appellant and the pickup truck driven by the respondent. The appellant suffered a permanent and disabling injury to his knee as a result of the accident. Following a trial by judge and jury, the jury found that the accident was 100% attributable to the appellant’s negligence and assessed his damages at a total of $566,634. On February 12, 1998, Stornini J. dismissed the appellant’s action in accordance with the jury’s verdict.
2The appellant appeals the judgment on the ground that the jury’s verdict is unreasonable. He asks that the trial judgment be set aside and that judgment be granted by this court for the full amount of damages assessed by the jury at $566,634. Alternatively, the appellant seeks a new trial. The respondent cross-appeals with respect to the quantum of damages for future economic loss.
3The standard of appellate review of a jury’s verdict is well-established. This court reiterated the governing principles in Deshane v. Deere & Co. (1993), 1993 CanLII 8678 (ON CA), 15 O.R. (3d) 225 at 231-32 in the following succinct excerpt:
The principles governing appellate review of the verdict of a jury have been laid down by the Supreme Court of Canada in McLean v. McCannell, 1937 CanLII 1 (SCC), [1937] S.C.R. 341 at p. 343, [1937] 2 D.L.R. 639, so that “the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it”. The principle has been re-affirmed in Vancouver-Fraser Park District v. Olmstead, 1974 CanLII 196 (SCC), [1975] 2 S.C.R. 831 at p. 839, 51 D.L.R. (3d) 416, where de Grandpré J., delivering the judgment of the court, stated:
All of the relevant cases make it abundantly clear that jury verdicts must be treated with considerable respect and must be accorded great weight. This does not mean however that they should be regarded with awe.
It was in that case also that the court, at p. 836, rejected the suggestion that a verdict should be “perverse”, implying moral turpitude, before it could be set aside. Instead, the court adopted a test that examines whether the evidence so preponderates against the verdict as to show that it was unreasonable and unjust. There is a further principle enunciated by Laskin C.J.C. delivering the majority judgment in Cameron v. Excelsior Life Insurance Co., 1981 CanLII 168 (SCC), [1981] 1 S.C.R. 138 at p. 142, 119 D.L.R. (3d) 257, and it is that jury’s findings are “entitled to rational appreciation and to be regarded in as favourable a light as the evidence supporting it”.
4The jury’s verdict was recorded in the form of the following answers to questions put to them by the trial judge:
- Was there any negligence on the part of the Respondent Berthier Lévesque which caused or contributed to the accident? Answer “Yes” or “No”.
Answer: No
If your answer to Question 1 is “Yes”, of what did such negligence consist? (Answer fully)
Was there any negligence on the part of the Appellant Luc Lévesque which caused or contributed to the accident? Answer “Yes” or “No”.
Answer: Yes
- If your answer to Question 3 is “Yes”, of what did such negligence consist? (Answer fully).
#1
Speed – Concerned about being late, therefore we think he was speeding (gearing up)
#2
Visibility – Dusty condition – No visor on helmet
#3
Road condition – Loose gravel – sharp curve
#4
Control – Travelling too fast for the road condition.
- If your answer to Question 1 is “Yes”, and your answer to Question 3 is “Yes”, state in percentages the degree of fault or negligence attributable to each:
Respondent Berthier Lévesque
_________%
Appellant Luc Lévesque
_________%
Total
100%
- Regardless of how you answer the other questions, at what amount do you assess the total damages of the Appellant Luc Lévesque?
Answer:
$566,634.
- Net Loss of Earnings to Date:
$97,774.
- Loss of Future Income:
$399,360.
- Future Knee Surgery:
$4,500.
- Pain, Suffering, Loss of Enjoyment of Life:
$65,000.
5The appellant submits that the verdict cannot be maintained because the jury’s answer to question no. 1 preponderates against the evidence of all witnesses to the accident that the respondent was driving his pickup truck in a manner that did not leave one-half of the road clear for the appellant’s vehicle. The appellant further submits that the jury’s findings in answer to question no. 4 cannot be supported on the evidence and, in any event, cannot constitute negligence at law.
6I agree with the appellant’s first submission. It is my view that the overwhelming weight of the evidence established that the respondent, at the time of the collision, did not leave one-half of the road clear for the appellant’s vehicle, as he was required to do pursuant to the Highway Traffic Act, R.S.O. 1990, c. H-8, ss. 148 and 149. Hence, on this circumstance alone, a prima facie case of negligence was made out, and it became incumbent upon the respondent to explain that the accident could not have been avoided by the exercise of reasonable care: see Graham v. Hodgkinson (1983), 1983 CanLII 1775 (ON CA), 40 O.R. (2d) 697 (C.A.). In my view, the evidence at trial fell far short of providing such an explanation. In these circumstances, the verdict of the jury was unreasonable and unjust. I am satisfied that the appellant has met the test for appellate intervention and that the jury’s verdict on liability must be set aside.
7It is my view, however, that while the jury’s verdict was unreasonable in finding the appellant 100% liable for the accident, a finding of contributory negligence can be supported on the evidence. However, the apportionment of negligence is a matter best determined by the trier of fact. This is not an appropriate case for this court to grant judgment in substitution of the jury’s verdict as requested by the appellant. There must be a new trial with respect to liability. In light of this conclusion, I do not find it necessary, or advisable, to deal with the appellant’s second submission concerning the jury’s specific findings of fact in answer to question no. 4.
8The respondent’s cross-appeal relates solely to the damages for loss of future income. In defence to the appellant’s claim on this head of damages, the respondent called Mr. Legault, the Director of Human Resources of the appellant’s former employer, Dubreuil Forest Products. The respondent intended to elicit evidence from Mr. Legault that he would not have hired the appellant at Dubreuil in 1995 if he had not had the injuries that he suffered because of the appellant’s involvement in a previous incident while at work at Dubreuil when he was 16 years of age. Allegedly, the appellant would have had a run-in with some of the other employees, would have taken off in a vehicle owned by the company that was not in the best of condition, and would have been involved in an accident. Mr. Legault did not have personal knowledge about the incident in question, and, consequently, Mr. Legault’s testimony was objected to by counsel for the appellant on the basis that it constituted inadmissible hearsay. At the conclusion of a voir dire into the matter, the trial judge ruled that the proposed evidence was inadmissible. The respondent submits that the trial judge erred in so restricting Mr. Legault’s testimony. He submits further that he was prejudiced by this ruling because the appellant’s claim for loss of future income was entirely based on his inability to continue his job at Dubreuil’s because of his injuries.
9In my view, Mr. Legault’s proposed testimony that he, as Director of Human Resources at Dubreuil’s, would not have rehired the appellant in 1995 was prima facie relevant and admissible. However, the proposed evidence was of limited value. Mr. Legault’s position appeared to be entirely based on the appellant’s alleged conduct with respect to the previous incident. Mr. Legault had no personal knowledge about this incident and there was no company record about the matter. The appellant was never disciplined by his employer in respect of the incident in question and, indeed, continued his employment at Dubreuil’s and was still employed at the time of the accident which is the subject-matter of this case. Finally, the appellant’s claim for future loss of income was not entirely based on his inability to continue his employment at Dubreuil’s as contended by the respondent. Rather, the actuarial report was based on the assumption that the appellant would have been employed “at the Dubreuil Forest Products Mill or in a forestry related employment” earning a similar income. The real significance of the actuarial assumption, particularly having regard to the appellant’s age, was not that it was likely that he would have continued to work until retirement specifically at Dubreuil’s but rather that he would likely have been employed in similar kind of work.
10In the circumstances of this case, Mr. Legault’s proposed testimony had little, if any, probative value and the trial judge would have been entitled to instruct the jury accordingly. Consequently, I am not satisfied that the trial judge erred in the exercise of his discretion to exclude the evidence, or that the exclusion of the evidence caused any prejudice to the respondent.
11For these reasons, I would allow the appeal, set aside the judgment, and dismiss the cross-appeal. Unlike the situation in Graham v. Hodgkinson, there is no suggestion in this case that the jury’s unreasonable conclusion on liability may have affected its findings on the question of damages. Nor is there any other reason to interfere with the jury’s assessment. Consequently, I would order a new trial on the issue of liability only. I would grant the appellant his costs of the appeal and the cross-appeal, and reserve the costs of the first trial to the presiding judge on the new trial.
(signed) “Louise Charron J.A.”
(signed) “I agree J. M. Labrosse J.A.”
(signed) “I agree K. M. Weiler J.A.”