COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Sharpe J.A. and Cunningham A.C.J. (ad hoc)
BETWEEN
Charles and Irene Agius
Plaintiffs (Appellants)
and
Home Depot Holdings Inc.
Defendant (Respondent)
Tim Danson and Marjan Delavar, for the Appellants
S. Wayne Morris and Teri Liu, for the Respondent
Heard and released orally: September 29, 2011
On appeal from the judgment of Justice Leonard Ricchetti of the Superior Court of Justice sitting with a jury, dated February 6, 2009.
ENDORSEMENT
1We do not agree that the jury charge was deficient. We note that the experienced trial counsel representing the appellant made no objection to the charge during the trial. Further, the trial judge did not misstate the appellant’s testimony; rather the impugned passage merely reflected the respondent’s position. The omission of the summary of the evidence from the written charge would have been apparent to the jury and caused no prejudice. In addition, we disagree with the appellant’s position that the trial judge misstated the law under the Occupier’s Liability Act, R.S.O. 1990, c O.2. The trial judge set out the law with respect to an occupier’s duty clearly.
2On our reading of the record, the trial judge did not exclude the appellants except – on agreement of counsel – until after they were called to testify. There is no error in this respect.
3As for the ground of appeal alleging that the jury address was inflammatory, it was not inappropriate for counsel for the defendants to ask the jury to conclude, based on the evidence, that one or more of the witnesses were “liars”.
4The appeal is dismissed.
5Costs to the respondent in the agreed upon amount of $30,000 all inclusive.
“W.K.Winkler C.J.O.”
“R. J. Sharpe J.A.”
“J.D. Cunningham A.C.J. ad hoc”