COURT OF APPEAL FOR ONTARIO
Rosenberg, MacPherson and LaForme JJ.A.
BETWEEN
Darrin Silvio, Delores Beardwood and Darren Silvio Jr.
Plaintiffs (Respondents)
and
698743 Ontario Limited cob as J. DiFranco & Son Construction and Domenic DiFranco
Defendants (Appellants)
Alan Rachlin, for the appellant
Peter Lingard, Kiran Sah and Avery Dyck, for the respondent
Heard: January 7, 2014
On appeal from the judgment of Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury, dated January 17, 2013.
ENDORSEMENT
1The appellants, 698743 Ontario Limited cob as J. DiFranco & Son Construction and Domenic DiFranco appeal from the judgment of Ramsay J. of the Superior Court of Justice, sitting with a jury, dated January 17, 2013. The only issue at the eight-day trial was liability and the jury apportioned liability as follows: the appellants – 53 per cent, the respondent Darren Silvio – 26 per cent; and the non-party Conrad Niessen – 21 per cent. Based on this apportionment and a pre-trial agreement as to a ceiling on the damages the plaintiffs could recover, the judgment awarded the plaintiffs damages of $1,100,000 and costs of $295,000. The appellants appeal on several grounds.
2First, the appellants assert that the trial judge did not properly charge the jury on the issue of proximate cause and, in particular, failed to charge the jury that they could find Mr. Silvio was solely responsible for his injuries.
3We do not accept this submission. In the component of his charge dealing with causation, the trial judge explained the “but for” test for causation and told the jury that they could find one or more proximate causes of the incident. This was consistent with the leading causation case, Resurfice Corp. v. Hanke, 2007 SCC 7, at para. 21, and with the apportionment scheme of the Negligence Act, R.S.O. 1990, c. N. 1, s. 3.
4Even if there was an error of law, we would apply s. 134(6) of the Courts of Justice Act and find that no substantial wrong or miscarriage of justice occurred. The appellants’ theory on this issue depended upon Mr. Silvio having seen that the second barrier had been removed. The jury’s answer to Question 6 on the Verdict Sheet shows that the jury accepted that Mr. Silvio did not recognize the danger.
5Second, the appellants contend that the trial judge erred in entering judgment for the respondents given their finding that the site was “secure”. The appellants rely upon s. 3(3) of the Occupiers’ Liability Act, R.S.O. 1990, c. O. 2.
6We disagree. The trial judge carefully reviewed the evidence about whether the appellants had taken proper steps to modify or exclude their duty to make their property reasonably safe for persons entering the premises. Moreover, in our view, the jury’s written answer to Question 2 on the Verdict Sheet evinces a clear understanding of the operation of s. 3(3) of the Negligence Act:
- Although the site was secure, DiFranco Construction failed to communicate to Highpoint Construction that they (Highpoint) were to be excluded from the site as of October 21st until October 24th.
7The fact that the work site of the partly-built house was “secure” did not in the circumstances exclude liability under s. 3(3) given that Highpoint had been told it needed to fix the defects. Its employees, including Mr. Silvio, could only do so by entering the site.
8Third, the appellants contend that the trial judge compromised trial fairness by improperly interfering with the defendants’ cross-examination of witnesses. They set out eight examples in their factum.
9We do not accept this submission. In the context of an eight-day trial, the small number of interventions during the defendants’ cross-examination of witnesses were directed at clarification of a witness’ evidence, ensuring that the defendants’ counsel was reading properly from an Examination of Discovery transcript, and limiting the number of times a question could be asked. Although we might say that a couple of the trial judge’s interventions were unnecessary, we do not say that they were inappropriate. In any event, they were far removed from the types of interventions discussed by this court in McFarlane v. Safadi (2004), 2004 CanLII 12644 (ON CA), 70 O.R. (3d) 599, Ross v. Hern, 2004 CanLII 16950 (ON CA), [2004] O.J. No. 1186, and Sargent v. Plaza Ontario Marble and Tile Inc., (2005), 2005 CanLII 44670 (ON CA), 205 O.A.C. 249.
10Fourth, the appellants submit that the trial judge compromised trial fairness by providing an unfair and unbalanced summary of the evidence in his charge to the jury.
11We disagree. The trial judge’s jury charge was brief – 24 pages. In our view, it was an adequate presentation of the evidence and positions of both sides; we see no unfairness or imbalance in the trial judge’s summary of the evidence that would warrant reversal given the issues that needed to be determined.
12Fifth, the appellants seek to introduce fresh evidence in the form of an affidavit of David O’Brien, the defendants’ co-counsel at trial. Mr. O’Brien affirms that, just before the second day of the jury’s deliberations, and after the defendants had made their objections the previous day to the jury charge (the trial judge accepted one objection and re-charged accordingly), and after the jury had asked a question during their deliberations, which the trial judge answered, the trial judge erred by not acceding to the defendants’ counsel’s request to make further objections to the jury charge.
13The appellants did not strongly press their motion to admit fresh evidence. Whatever the merits of the trial judge’s decision, it had no impact on the fairness of the trial or the appellants’ ability to make submissions on appeal.
14We observe that we have not taken into account any failure to object in disposing of the grounds of appeal.
15The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $40,000, inclusive of disbursements and HST.
“M. Rosenberg J.A.”
“J.C. MacPherson J.A.”
“H.S. LaForme J.A.”