McFarlane v. Safadi et al.
70 O.R. (3d) 599
[2004] O.J. No. 1763
Docket No. C37522
Court of Appeal for Ontario
Laskin, Feldman and Armstrong JJ.A.
April 30, 2004
Civil procedure -- Trial -- Jury trial -- Conduct of trial -- Motor vehicle accident -- In trial of liability as between two defendants, trial judge intervening unduly during testimony of police witness for one [page600] defendant and repeatedly expressing his opinion that officer did not conduct thorough investigation -- Trial judge improperly taking over role of counsel -- Trial judge again referring to lack of thorough investigation in his charge to jury -- Unfair trial resulting.
The plaintiff's action arising out of a motor vehicle accident was settled before trial and the trial proceeded on the issue of the liability of the two defendants. The main issue was whether the defendant H had made an unsafe lane change and cut off the defendant S, causing her to lose control of her car, or whether she had failed to keep her car under control and was primarily responsible for the accident. The investigating officer was the key witness for S. He testified that he was approached by H at the scene of the accident, that H stated that he felt that he was responsible for the accident, and that he made out a traffic ticket charging H with making an unsafe lane change. The officer was cross-examined by very experienced counsel. Early in the cross-examination, the trial judge began to intervene by asking his own questions. He made it clear that he believed that the officer had not conducted a thorough investigation. Counsel for S moved for a mistrial on the basis that the questions asked of the officer by the trial judge seriously prejudiced her client in the eyes of the jury. The trial judge refused to grant a mistrial. In his charge to the jury, the trial judge told the jury that they should ignore his opinions about the evidence. He again stated that the police officer had not conducted a careful investigation. The jury found S 75 per cent negligent and H 25 per cent negligent. S appealed.
Held, the appeal should be granted.
The trial judge's interventions during the presentation of the officer's evidence and his reference to the lack of a proper investigation in his charge to the jury resulted in an unfair trial. A trial judge must preside with impartiality and neutrality between the parties. The judge must not cross the line and become a participant in the litigation. In this case, the trial judge's questioning of the police officer went beyond the permissible limit. A trial judge may ask questions of a witness for the purpose of clarifying issues or amplifying areas of the evidence that require further explanation. However, if a trial judge questions a witness in a manner that gives the impression that he or she is adopting a particular position in opposition to one of the parties, he or she has gone too far. It was unnecessary in this case for the trial judge to cross-examine the police officer on his failure to carry out a proper accident investigation. H was represented by experienced counsel. The responsibility for asking those questions lay with counsel. The trial judge took over the role of counsel. The trial judge's second error was his strong expression of opinion concerning the adequacy of the police officer's investigation. This manifested itself in the questioning of the witness, his comments on the motion for a mistrial and in his charge to the jury. The effect of his instruction to the jury that they were to ignore his views of the evidence was significantly reduced by his subsequent return to his strong criticism of the police officer's failure to conduct a thorough investigation. The evidence of the police officer was central to S's case. The questions and opinions of the trial judge discredited his evidence. Such conduct created the appearance of unfairness and necessitated a new trial.
APPEAL from a judgment in a personal injury action.
Cases referred to James v. Canada (Minister of National Revenue), [2000] F.C.J. No. 2135, 266 N.R. 104, [2001] 1 C.T.C. 227, 2001 D.T.C. 5075 (F.C.A.); Koebel v. Rive, 1958 91 (ON CA), [1958] O.R. 448 (C.A.); Majcenic v. Natale (1967), 1967 267 (ON CA), [1968] 1 O.R. 189, 66 D.L.R. (2d) 50 (C.A.) [page601]
Timothy S.B. Danson, for defendants (appellants). Stephen G. Ross and Monique Meloche, for defendants (respondents).
The judgment of the court was delivered by
1ARMSTRONG J.A.: -- This case arises as a result of an automobile accident in which a jury found the appellant, Dalida Safadi, 75 per cent negligent and the respondent, Brian Hansen, 25 per cent negligent in respect to the injuries suffered by the plaintiff, Lynette McFarlane. Lissaman J. rendered judgment in accordance with the jury's verdict.
2The appellants raise two issues on this appeal:
(i) The conduct of the trial by the trial judge in respect to interventions made by him; and
(ii) The failure of the trial judge to charge the jury on the law of negligence.
The Factual Background
3On a rainy evening in July 1997, Dalida Safadi ("Ms. Safadi") was driving her 1990 Plymouth van westbound in the curb lane of Walsh Avenue, which is an extension of Wilson Avenue, in the City of Toronto. At the same time, the respondent, Brian Hansen ("Mr. Hansen"), was driving his 1998 Ford rental car westbound in the median lane of Walsh Avenue. Mr. Hansen was intending to exit Walsh Avenue at the Weston Road intersection. In order to do so, he began to move into the curb lane to access the exit lane leading onto the northbound lanes of Weston Road.
4Ms. Safadi testified that, as Mr. Hansen made this move, she noticed his vehicle move up from behind her and cut her off. She applied her brakes, her car did a 180 degree spin and ended up crashing into a bus shelter, which was adjacent to the exit lane leading to Weston Road. Several people were standing in the shelter waiting for a bus. The record before us does not disclose the number of people or the extent of the injuries suffered by those waiting for the bus, other than that three ambulances arrived (including an ambulance bus) to transport people to the hospital.
5Mr. Hansen testified that before he attempted to make his lane change, he looked over his right shoulder through the [page602] rear window of his car. He noticed the van, driven by Ms. Safadi, but assumed that he could safely change lanes. As he moved to the right, he heard the honking of a horn so he stopped moving to the right and increased his speed. He then heard a crash, looked into his rear view mirror and caught a glimpse of the accident. After driving for about one kilometre, he turned his car around and returned to the scene of the accident where he spoke to the police officer who was involved in looking after the injured.
6A number of legal actions were commenced as a result of the accident. The damages of the plaintiff in this action, Lynette McFarlane, were settled before trial. The trial of this action related to the cross-claims between Ms. Safadi and Mr. Hansen and was for the sole purpose of determining the degrees of liability of Ms. Safadi and Mr. Hansen.
The Trial
7The brief trial lasted two days before a jury. Counsel for Ms. Safadi called three witnesses: Scott Fotheringham (the investigating police officer), Edward Obasuyi (a bystander in the bus shelter) and Ms. Safadi. Mr. Hansen testified on his own behalf. His counsel called no other witnesses.
8The main issue at trial was whether Mr. Hansen had made an unsafe lane change and cut Ms. Safadi off, causing her to lose control of her car, or whether she had failed in the circumstances to keep her car under control and was primarily responsible for the accident.
9The police officer, Constable Fotheringham, was the key witness for Ms. Safadi. He testified that he had arrived on the scene of the accident less than a minute after it occurred. When he arrived on the scene, he first called the ambulances and ensured that those persons who had been injured were looked after and were transported to hospital. While he was attending to one of the injured bystanders near the bus shelter, he was approached by Mr. Hansen, who said to him, "I think I'm involved in this." He told Mr. Hansen to return to his automobile where he would speak to him when he was finished dealing with the injured.
10The following is an excerpt from the transcript of the evidence of Constable Fotheringham in which he described his conversation at the scene of the accident with Mr. Hansen. The words in quotation marks are words said to be spoken by Mr. Hansen to Constable Fotheringham:
"I am very concerned and very sorry. It's my fault. I was trying to make a right turn to go north on this street." [page603]
He didn't identify the street; just pointed to it.
"I saw her coming up behind me, but I thought to myself there is enough time. She swerved, then skidded over. I'm sorry. I move my car over to here and wait for you."
After relating the above conversation, Constable Fotheringham testified:
At this particular moment, I'm making up my mind whether or not Mr. Hansen is involved. I only need clarification on one thing, what lane he's in? So I asked him the question: "What lane were you in?" and he gave me an answer. He pointed to the westbound Walsh Avenue centre lane, which is in police terminology, lane 1 or the centre lane, passing lane which is most people's terminology, saying: "That one." So at that moment, I stopped everything. I held a set of beliefs. I have formulated a set of opinions and I have come to an opinion or belief, right.
11Constable Fotheringham made notes of his conversation with Mr. Hansen although he admitted they were not verbatim and that he had not made a note of Mr. Hansen's comment, "I think I'm involved in this." He testified he read his notes back to Mr. Hansen at the conclusion of his interview.
12Constable Fotheringham testified that he concluded Mr. Hansen was responsible for the accident. As a result, he made out a traffic ticket that charged Mr. Hansen with the offence of making an unsafe lane change. The constable testified that Mr. Hansen indicated that he wanted to enter a plea of guilty and pay the fine immediately.
13Constable Fotheringham was cross-examined by counsel for Mr. Hansen, Barry Percival, Q.C., who is one of the most experienced personal injury lawyers in the province of Ontario. Early in the cross-examination, the trial judge began to intervene by asking his own questions. When counsel for Mr. Hansen asked the officer to confirm that his only note of the road condition on the evening of the accident was that it was wet, the trial judge intervened as follows:
THE COURT: And you told us earlier this morning, I wrote down, terribly wet conditions. Remember saying that.
THE WITNESS: Yes.
THE COURT: And then you went on to say, I gave medical assistance to the people in the bus shelter.
MR. PERCIVAL: Q. Do I take it that when you have terribly wet conditions that the speed limit is not necessarily the most safest [sic] speed?
A. You are correct.
Q. Thank you. [page604]
THE COURT: And the rain was coming down, wasn't it?
THE WITNESS: Yes.
THE COURT: Because you used the word pouring here today.
THE WiTNESS: Yes.
14During the course of this cross-examination, counsel for Mr. Hansen confirmed that Constable Fotheringham did not interview a number of prospective witnesses about the accident. Before counsel completed his cross-examination, the trial judge asked the following questions:
THE COURT: You're a very experienced police officer, aren't you?
THE WITNESS: Yes, sir.
THE COURT: Now perhaps Mr. Percival is going to explore this, but I'm going to say this. It seems to me that the suggestion is that you took a certain course of action up here without doing what you normally do which is to thoroughly investigate both sides. Now you follow that up.
MR. PERCIVAL: That's right.
Q. Do you want to answer His Honour's question?
A. He's correct.
Counsel for Mr. Hansen then asked a further question on the above issue and continued with other questions. At the completion of the cross-examination of the police officer, the trial judge asked the officer the following question:
THE COURT: Before Ms. Stefanovic deals with any questions that she may have, did you ever interview Ms. Safadi?
THE WITNESS: No, Your Lordship. I felt the case was overwhelming.
15In re-examination, counsel for Ms. Safadi, Ms. Marina Stefanovic, attempted to deal with the issue of the apparent lack of a thorough investigation by the police officer. The trial judge intervened after the answer to her first question:
MS. STEFANOVIC: Q. It was suggested to you and you agreed that this was not a thorough investigation. Can you tell us why it was not a thorough investigation?
A. Mr. Hansen cut it short by admitting, signing and making the decision to accept guilt right there in front of me. If he had not maybe have exercised or said something else of any nature that he would think it over or it would take some time or whatever. Normally I just hand out the ticket and then walk away. If that had happened, and Mr. Hansen hadn't put down his Visa number and signed it right in front of me, then a whole series of other things [page605] would have happened, but he cut it short by doing it right then and there.
THE COURT: You can cross-examine on that point, if you wish when Ms. Stefanovic is finished, Mr. Percival.
MR. PERCIVAL: Thank you, Your Honour.
THE COURT: I find that answer a little troublesome, Officer. Now I know you are an experienced police officer and I know that and I respect you for it. The scene out there on Wilson, et cetera, must have been just absolutely appalling, but it seems to me that perhaps your guard was down and that things that you normally do as a careful police officer you didn't do. Is that fair or unfair?
THE WITNESS: I think that is very correct, Your Lordship.
MR. PERCIVAL: I have no further questions on that issue.
16Counsel for Ms. Safadi then resumed her re-examination on the issue of what constituted a thorough investigation:
THE COURT: Ms. Stefanovic, is that it?
MS. STEFANOVIC: Q. I'd like to ask what a thorough investigation would entail that ties into my previous question.
A. It would involve the use of land surveying instruments called . . . total station. It's a surveying instrument using refracted light and lasers. A very, very careful set of measurements would have been taken of the entire scene, the entire roadway, the position of the vehicle, the position of debris fields. A complete and accurate scale diagram would have been completed detailing all of the scene evidence and all of the road evidence. I wasn't terribly concerned about doing all of that.
17After the answer to the above question, the trial judge again intervened:
THE COURT: You felt it wasn't necessary, isn't that right? That was a judgment call you made having the discussions with Mr. Hansen and I have already suggested to you that once you knew, according to him, that the van was in front of him, that led you to a certain conclusion.
MR. PERCIVAL: Your Honour, I think the evidence is the van was behind him.
THE COURT: I was trying to make a right turn to go north on this street. I saw her coming up behind me. Thank you.
MR. PERCIVAL: Thank you, Your Honour.
MS. STEFANOVIC: Q. Was there anything at the scene of the accident that was inconsistent with Mr. Hansen's statement?
A. Nothing. [page606]
MS. STEFANOVIC: Thank you. Those are my questions.
THE COURT: Just before you go, let's get back to the words: "I saw her coming up behind me, but I thought to myself there was enough time. She swerved and then skidded over." You obviously thought that Mr. Hansen was cutting her off, which led you to the position that you took. Let me ask you this based on your experience. What duties were there on this occasion on the driver of the van as far as her driving was concerned? What duties were there on her?
THE WITNESS: She's going in a straight line. The vehicle to her right, her left is coming over towards her. She has to exercise due care and attention to both, what's going to her left, to her own driving skills, to her own control of the vehicle and to her braking.
THE COURT: One wonders perhaps why she didn't manage to slow down and avoid the emergency in front of her. Doesn't one wonder about that, Officer?
THE WITNESS: One does.
THE COURT: And one wonders about that when you hear the evidence. As my late mother would say, it was raining cats and dogs and it was raining cats and dogs. I don't know where that expression came from, but you said something like pouring. I'm just wondering about whether Mrs. Safadi was really driving as furtively as she should have been in terrible conditions. What do you say to that?
THE WITNESS: That is the judgment of the triers of fact.
THE COURT: The problem I have is that perhaps, Officer Fotheringham, you jumped to a conclusion like that relative of yours who writes in the paper from time to time.
THE WITNESS: It is possible, Your Honour.
THE COURT: I assume he's a very distant relative of yours, is he?
THE WITNESS: I don't read him very often.
THE COURT: He comes from the small side of the Fotheringham family. All right, that's enough.
18Counsel for Ms. Safadi did not ask any further questions in re-examination. However, she moved for a mistrial on the basis that the questions asked of the police officer by the trial judge seriously prejudiced her client in the eyes of the jury. In response to this motion, the following exchange took place between the trial judge and counsel for Ms. Safadi:
THE COURT: I will tell you now. I shall tell this jury that I have some concerns about the investigation of the police officer, and I will definitely, without any question, tell the jury that, but I shall tell them at all times that they are the finders of [page607] fact and not me, and I shall say to them you can ignore me completely. That is what I will do.
MS. STEFANOVIC: I am grateful for that, but I fear that that will not relieve the prejudice that may have been placed.
THE COURT: I frankly don't see it that way, Ms. Stefanovic. I do not see it whatsoever. I am entitled to ask questions of a witness and I ask questions of a witness. I can tell you right now I am very much of the opinion that this police officer did not do his job properly and if you want me to proceed without the jury, I can, but you would have very serious risks because of the views that I have. I am absolutely of the opinion that this police officer, a very experienced police officer, fell into a trap. I mean I think it is absolutely unbelievable and I tried to tell everybody here yesterday. It is unbelievable that a police officer should proceed the way he has proceeded. Unbelievable! I mean I am not going to declare a mistrial. It is either going to go on with me alone or with a jury and my wish is the jury, and you should wish it is the jury, and I will explain exactly what you have told me.
MS. STEFANOVIC: That's fine, Your Honour.
THE COURT: You do not want me to strike the jury, do you?
MS. STEFANOVIC: Your Honour, my request would be for a mistrial first and if you are disposed to not granting, then my relief in the alternative was to ask you to give the jury a direction regarding . . .
THE COURT: The jury will get a very strong direction. I do not agree with you at all that my questions were incorrect. They were questions that begged to be asked.
MS. STEFANOVIC: That may be so, Your Honour. We have a very senior counsel that could have asked those questions and I'm just concerned that coming from you . . .
19The trial judge went on to say that he could cure any of her fears in his charge to the jury. Commenting on her decision to bring the motion, he added:
I can tell you now that I hope the people who instruct you are in the courtroom and I know they are.
After a further exchange with counsel on his interventions, the trial judge said:
THE COURT: Any worries you have should be set. What is the word? You should not worry so much. I, undoubtedly, will tell this jury, and I promise you that, and you can object if I don't, I'm going to tell this jury. I shall have a dialogue with them over this and I shall tell them exactly what their duty is. I will tell them that I may have given the impression that I was concerned about steps taken or not [page608] taken in this case, but it is for them to decide. It is for them to decide. The thing that bothered me is that the police officer, having established the location of the cars, he then made a judgment without investigating and talking to other people involved. I mean I am still thinking about that as a matter of fact. I mean I have been around a long time too and it is just unbelievable that an experienced police officer should have proceeded that way, but your point is noted. Your motion, as I have told you, is dismissed. You do not want to strike the jury notice?
MS. STEFANOVIC: No, Your Honour.
20The trial judge then gave further assurances that he intended to correct the problem in his charge to the jury. He also advised Ms. Stefanovic that she could clear up some of the issues concerning what her client did when she called Ms. Safadi as a witness.
21In his charge to the jury, the trial judge opened with the following observation:
I think it is unlikely that I will comment on the evidence in this case. You have heard it. You can make your own mind up with respect to it.
22Later in his charge, the trial judge told the jury that they should ignore his opinions about the evidence:
I want to emphasize that you are in no way bound to follow my opinion and if you came to a conclusion that some of my questions indicated that I had a particular opinion as to the facts of this case, then I ask you and I invite you just to ignore any views that you have as to what I might think. I want to emphasize it is your duty to place your own interpretation on the evidence. It is for you to decide whether someone should have slowed down. It is for you to decide whether someone should or should not have made a turn. It is that kind of stuff that is for your -- it is in your bailiwick. It is for your department, not for me to comment on.
23In regard to the evidence of the police officer and the shortcomings in his investigation, the trial judge charged the jury as follows:
I can tell you that I was disturbed on the evidence of the police officer and I am sure you were too, but I was. On the other hand, I do not want you to be carried away by that. The police officer arrived on the scene and to use his expression, there was carnage everywhere.
I do not think there is any doubt that he jumped to a conclusion. He jumped too quickly and my view is that he acknowledged that in the witness box that he really did not do the kind of careful investigation that I think that police officer would like me to think that he normally does because my recollection of it is that he went to some lengths to talk about this is what we do. We are always very careful to do this and do that, but I was singularly unimpressed in this particular case. But I do not want to be too hard on him. He was a police officer of 27 years experience. [page609]
I have pointed out the way the law treats guilty pleas and convictions in Highway Traffic Act and Canadian Criminal Code cases relating to driving offences. It is up to you to decide whether Mr. Hansen has, and the onus is on him, whether he has negated that evidence against him and Mr. Percival has made a persuasive case to the effect that he has.
Mr. [sic] Stefanovic has made her arguments too and they are persuasive. I would suggest, with the greatest respect, that you pay particular attention to the evidence that you have heard in this case. You come to your conclusion with respect to the effect of the guilty plea. There is no doubt there was a guilty plea and there was no doubt there was a conviction, but it certainly was not a careful investigation and it certainly was not after a trial. So I think I have told you how to deal with that.
24The trial judge gave to the jury the questions that they were required to answer on the negligence or lack of negligence of Ms. Safadi and Mr. Hansen. He also told the jury that they could use the evidence of Mr. Hansen's conviction for making an improper lane change as evidence of negligence against Mr. Hansen. However, at no place in the charge did he discuss the elements that constitute negligence as a cause of action and their relation to the case at bar. It should be noted that neither counsel made any objection to his charge on this issue.
The Appeal
25As already indicated, the appellants assert that the judgment should be set aside on the grounds of interventions made by the trial judge and the failure of the trial judge to charge the jury on the law of negligence.
(i) Conduct of the trial by the trial judge
26The appellants' case that the conduct of the trial by the trial judge created an appearance of unfairness is largely based on the trial judge's criticism of the inadequate investigation conducted by Constable Fotheringham, criticism that he commented on during the presentation of the evidence and in his charge to the jury.
27In addition, counsel for the appellants raised a concern about the judge's manner of addressing the witness, Edward Obasuyi, as "the gentleman with the difficult name from Nigeria". Counsel compared this with the trial judge's more favourable reference to Mr. Hansen as "a good Dane". Although the references were unnecessary and perhaps unfortunate, it is not necessary to deal with them in order to decide the case.
28Counsel for the appellants also suggested that the trial judge's deferential references to counsel for Mr. Hansen supported an inference of reasonable apprehension of bias. Although the trial judge may have made one or two references to counsel [page610] for Mr. Hansen that carried a hint of unnecessary deference, none of them was of such a character that it raised a reasonable apprehension of bias. Most of the time, the trial judge was equally solicitous of counsel for Ms. Safadi.
29However, I reluctantly come to the view that the trial judge's interventions during the presentation of the evidence of the police officer and his reference to the lack of a proper investigation in his charge to the jury resulted in an unfair trial.
30In Majcenic v. Natale (1967), 1967 267 (ON CA), [1968] 1 O.R. 189, 66 D.L.R. (2d) 50 (C.A.), Evans J.A. described improper judicial intervention at p. 204 O.R.:
When a Judge intervenes in the examination or cross- examination of witnesses, to such an extent that he projects himself into the arena, he of necessity, adopts a position which is inimical to the interests of one or other of the litigants. His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that "justice not only be done, but appear to be done". Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction. The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible.
31The hallmark of a fair trial is that the judge preside with impartiality and neutrality between the parties. The judge must not cross the line and become a participant in the litigation. When he or she does so, his or her impartiality and neutrality are lost. It is at that moment that the trial ceases to be fair.
32Sometimes a trial judge unwittingly crosses the line without intending to do so. This is a more common error and appears to be what happened in the present case. Unfortunately, unintentional conduct may also result in an unfair trial.
33In my view, the trial judge made two fundamental errors in his conduct of the trial.
34The first error of the trial judge is found in his questioning of the police officer. His questions went beyond the permissible limit. A trial judge may ask questions of a witness for the purpose of clarifying issues or amplifying areas of the evidence that require further explanation. However, if a trial judge questions a witness in a manner that gives the impression that he or she is adopting a particular position in opposition to one of the parties, he or she has gone too far. See James v. Canada (Minister of National Revenue), [2000] F.C.J. No. 2135, 266 N.R. 104 (F.C.A.) at para. 52; Majcenic v. Natale, supra, at pp. 203-04 O.R.
35In this case, the trial judge cross-examined the police officer on his failure to carry out a proper accident investigation. [page611] It was unnecessary for him to do so. As already stated, Mr. Hansen was represented by experienced counsel. The responsibility for asking these questions lay with counsel. Before counsel had developed the point in cross- examination, the trial judge intervened with the following leading question:
Now perhaps Mr. Percival is going to explore this, but I'm going to say this. It seems to me that the suggestion is that you took a certain course of action up here without doing what you normally do which is to thoroughly investigate both sides. Now you [referring to Mr. Percival] follow that up.
36The trial judge took over the role of counsel. This was exacerbated by the trial judge when, on his own initiative, he asked Constable Fotheringham, "What duties were there on this occasion on the driver of the van as far as her driving was concerned?" The trial judge then offered his own observation concerning Ms. Safadi's driving skills. All of this should have been left to counsel for Mr. Hansen.
37The second error of the trial judge is found in his strong expression of opinion concerning the adequacy of the police officer's investigation. This manifested itself in the questioning referred to above, his comments on the motion for a mistrial and in his charge to the jury.
38Although the trial judge was entitled to express his opinion on the evidence, he had to do so with great care so as not to unfairly influence or appear to unfairly influence the jury. Again, in my view, the trial judge went too far. His leading questions of the police officer left no doubt how he viewed this case.
39The trial judge advised the jury in his charge that, "If you come to a conclusion that some of my questions indicated that I had a particular opinion as to the facts of this case, then I ask you and I invite you just to ignore any views that you have as to what I might think." Whether such an instruction was sufficient is questionable. However, its effect was significantly reduced by his subsequent return to his strong criticism of the police officer's failure to conduct a thorough accident investigation.
40In my view, based on the comments of the trial judge, the jury would have had a very difficult time coming to any conclusion other than that the police officer had failed to do his duty and, had he not done so, he would likely have come to a different conclusion concerning Mr. Hansen's liability.
41The evidence of the police officer was central to Ms. Safadi's case. The questions and opinions of the trial judge discredited his evidence. I conclude that such conduct created the appearance of unfairness and necessitates a new trial. [page612]
(ii) The failure of the trial judge to charge the jury on the law of negligence
42The trial judge was obliged to include appropriate instructions in respect to the law of negligence. See Koebel v. Rive, 1958 91 (ON CA), [1958] O.R. 448 (C.A.). However, in view of the failure to object by either counsel and in light of my conclusion in respect to the conduct of the trial, it is unnecessary to give effect to this ground of appeal.
Disposition
43In the result, I would allow the appeal, set aside the judgment and order a new trial.
Costs
44I would grant the appellants their costs of the appeal on a partial-indemnity basis, fixed at $18,000, including disbursements and GST.
Appeal allowed.
