CITATION: Liberty Mutual Group v. Gordon, 2010 ONCA 107
DATE: 20100209
DOCKET: C49374
COURT OF APPEAL FOR ONTARIO
Moldaver, MacPherson and LaForme JJ.A.
BETWEEN:
Fred Livingston and Helen Livingston
Plaintiff
And
James Greiner, Stanley Gordon, John Doe, and Dominion of Canada General Insurance Co.
Defendant
BETWEEN:
Richard Clarke
Plaintiff (Respondent)
And
James Greiner and Stanley Gordon
Defendant (Respondent Stanley Gordon)
BETWEEN:
Richard Clarke
Plaintiff (Respondent)
And
Liberty Mutual Group
Defendant (Appellant)
Pasquale C. Peloso, for the appellant Dominion of Canada General Insurance Company
Brian C. Elkin and Mary Delli Quadri, for the appellant Liberty Mutual Group
R. Bruce Nelson, for the respondent Stanley Gordon
Heard and released orally: January 28, 2010
On appeal from the order of Justice Belch of the Superior Court of Justice, sitting with a jury, dated August 15, 2008.
ENDORSEMENT
[1] The appellants allege that there were several errors in the jury charge relating to the concepts of negligence and proximate cause, and the onus on Mr. Gordon in the face of a clear statutory breach – being on the wrong side of the road at the time of the accident.
[2] In our view, when the charge is read fairly as a whole, we are satisfied that the jury would have understood that the onus was on Mr. Gordon to explain how the accident could have occurred without his negligence. The jury was invited to consider all of the indicia of negligence that the appellants advanced, including Mr. Gordon’s speed, lack of attention, knowledge that the intersection in question was dangerous, and knowledge of his vehicle’s braking system, especially on a wet road. The question put to the jury, as agreed to by counsel, was as follows:
Has the defendant Gordon satisfied you on the whole of the evidence that the accident in question did not occur through any negligence on his part?
[3] The jury responded in the affirmative.
[4] By answering the question as they did, it is apparent that the jury was satisfied that Mr. Gordon had met his onus of establishing, on balance, that there was an emergency situation that he had not created or contributed to and that he exercised the care that an ordinary, prudent person would have exercised in the same circumstances. The issue for the jury was not whether a better course of action may have been open to Mr. Gordon but whether what he did was what an ordinary prudent person might reasonably have been expected to do.
[5] While the appellants take serious issue with the trial judge’s charge on proximity, it was essential that the jury understand that Mr. Gordon’s breach of one or more statutory provisions cannot impose absolute liability. The trial judge’s charge effectively conveyed that message.
[6] In the end, we are not persuaded that the alleged errors in the jury charge warrant a new trial. In so concluding, we have not ignored this court’s decision in Senger v. Lachman, 2008 ONCA 323. In that case, unlike the present case, the court was not addressing an explanation that arose out of an emergency situation; rather, it was considering acts of alleged negligence that occurred before an emergency arose. Moreover, in this case, unlike in Senger, after the initial charge, the appellants made several objections and the trial judge brought back the jury and provided correcting instructions for most of them. Importantly, he made it crystal clear that Mr. Gordon bore the onus of explaining how the accident could have occurred without his negligence. After the recharge, counsel were invited to make further comment and had none.
[7] Accordingly, for these reasons, the appeal is dismissed.
[8] Costs of the appeal to the respondent fixed at $20,000 plus disbursements and G.S.T.
Signed: “M. J. Moldaver J.A.”
“J. C. MacPherson J.A.”
“H. S. LaForme J.A.”