Court of Appeal for Ontario
Before: Doherty, Cronk and Armstrong JJ.A.
Between:
Brenda Verreault Respondent (Plaintiff)
and
Gilles Malo Appellant (Defendant)
Counsel: Todd McCarthy and Grant Dow for the appellant Almeda Wallbridge for the respondent
Heard: June 14, 2007
On appeal from the judgment of Justice I.S. McMillan of the Superior Court of Justice dated December 5, 2005.
Appeal Book Endorsement
1The jury clearly did not view the damage assessment in the way either counsel urged, however, the view the jury took, which was in some respects consistent with each of the competing positions was supported by the evidence. It cannot be said to be perverse.
2The question “you were charged?” put to the defendant in cross-examination was improper given that liability was admitted. However, counsel did not request a mistrial, but asked the trial judge to instruct the jury that the question was improper. The trial judge did so. We see no error in the instruction. Counsel did not request any further instruction. We also agree with the trial judge that it is speculative to suggest that there was some connection between the question and the jury’s reward.
3The trial judge properly excluded the employment records. Absent consent, the employment file could not simply be tendered as part of the defence without compliance with s. 35 of the Canada Evidence Act. In any event, we are not satisfied that the reference in the records to “personal days” taken off prior to the accident would have any material effect on the verdicts.
4The trial judge denied a request under s. 267.8(12) of the Insurance Act for an assignment of the respondent’s long-term disability benefits. He did so first on the basis that the relief was not pleaded and second on the ground that there was no evidence of any entitlement to the benefits.
5We are satisfied that the section contemplates a post verdict motion and that the claim need not be pleaded in the statement of defence. In any event, it was pleaded, albeit inelegantly, by the appellant in this case.
6With respect to the evidentiary basis for the order, it seems to us that there is merit to the appellant’s claim that the assignment could not prejudice the respondent. On the other hand, the respondent argues that the judge did not have an adequate evidentiary basis to determine whether there was an entitlement, present or future under the policy.
7The matter is best resolved by dismissing this ground of appeal without prejudice to the appellant bringing a further motion on proper material under s. 267.8(12) of the Insurance Act.
8The appeal is dismissed with costs to the respondent on a partial indemnity basis fixed at $12,000, inclusive of disbursements and GST.