COURT OF APPEAL FOR ONTARIO
Rosenberg, MacPherson and LaForme JJ.A.
BETWEEN
Thomas Rory Lyness
Respondent
and
Ay-Ling Wang and Thies Scheelle
Appellants
William S. Chalmers and Tyler Dellow, for the appellants
Graham M. Bennett and Derek A. Johnson, for the respondent
Heard: November 1, 2010
On appeal from the judgment of Justice Peter B. Hambly of the Superior Court of Justice, sitting with a jury, dated October 23, 2009.
ENDORSEMENT
1Liability having been admitted, the trial focused on the extent of the injury, loss and damage suffered by the respondent as a result of the motor vehicle accident. Consequently, the appellants' position at trial was that causation was the central issue for the jury to decide. In this regard, they argue that the trial judge erred in charging the jury with respect to both the "but for" and "material contribution" tests.
2In Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 22-25, the Supreme Court of Canada explained that the law with respect to causation generally requires the application of the 'but for' test. That is, the plaintiff must show that the injury would not have occurred but for the negligence of the defendant. However, the court goes on to explain that, where there are special circumstances, the law recognizes exceptions to the "but for" test, and will apply a "material contribution" test. The within case was not one of exceptional circumstances and we do not need to comment further on this.
3The appellants argue that the trial judge’s error occurred in both his explanation to the jury as to the application of the material contribution test, and with respect to the test itself. They say that this error prevented the jury from understanding the relevant legal principles, and therefore, a substantial wrong or miscarriage of justice occurred.
4While we agree that the error did occur, we disagree that it resulted in a substantial wrong or a miscarriage of justice as required by s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
5It is clear from the record that, at trial the respondent specifically requested the trial judge to charge the jury on both the “but for” and “material contribution” tests. It is equally clear that the trial judge agreed that the jury should be charged on both. And, it appears that when one reads the relevant portion of his charge, he attempted to do so.
6It should be noted that this court’s decision in Frazer v. Haukioja, 2010 ONCA 249 was not available for consideration and guidance, either by counsel or the trial judge. We reference the relevance of this case below.
7In this case, we agree that there was an error in the charge to the jury in relation to causation because of the trial judge’s intention and efforts to charge the jury on both the “but for” and “material contribution” tests. The view that both tests of causation apply in a given case is an error of law. As this court recently held, only one of these tests will apply: Frazer, at para. 41. However, we also find that the error does not give rise to intervention by this court.
8In spite of the trial judge’s intention to charge the jury on the “material contribution” test and his efforts to do so, we do not think he succeeded. Rather, the trial judge's explanation of "material contribution" as being "another way to put it", and his subsequent explanation of that term do not in fact amount to an instruction on the “material contribution” test; it actually amounts to a further instruction on the “but for” test. In short, the charge to the jury on this issue correctly sets out the applicable law on causation as it applied to this case.
9When the jury charge is read in the context of the entire trial, we find that the instructions on the issue of causation provided sufficient guidance on the applicable law. While the instructions were erroneous in what they intended to accomplish, they nevertheless achieved the correct result. In our view, the jury would have properly understood the law at the end of the charge: see Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co., 2006 CanLII 12284 (ON CA), [2006] 36 C.C.L.I (4th) 11 (C.A.) at para. 51.
10For these reasons, we would dismiss this central ground of appeal. Furthermore, we see no merit to any of the other grounds of appeal and the appeal must be dismissed.
THE CROSS-APPEAL
11The respondent cross-appeals and asserts that the trial judge erred by offering guidance to the jury with respect to the quantum of the respondent’s damages, and by doing so in a manner that unfairly influenced the jury to the detriment of the respondent. We reject this argument.
12The decision of the trial judge to offer the jury guidance in this regard was an exercise of a discretionary power that is vested in him pursuant to s. 118 of the Courts of Justice Act. The respondent has offered no basis upon which this court should interfere with the exercise of that discretion. The cross-appeal is therefore dismissed.
13Given the mixed results, the respondent is awarded his costs of the appeal fixed in the amount of $15,000 inclusive of disbursements and applicable taxes.
“M. Rosenberg J.A.”
“J.C. MacPherson J.A.”
“H.S. LaForme J.A.”
