Campbell v. Wolczak, 2003 CanLII 34594 (ON SCDC)

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

COURT FILE NO.: 634/02 DATE: 20030512

BEFORE: O'DRISCOLL, LANE AND KOZAK JJ.

B E T W E E N:

CAROLE CAMPBELL Appellant (Plaintiff)

• and -

MIECZYSLAW WOLCZAK and MAREK BOZEK Respondents (Defendants)

• and -

CUMIS GENERAL INSURANCE COMPANY added by an Order pursuant to Section 258(14) of the Insurance Act, R.S.O. 1999, C.1.8 Third Party (Respondent)

COUNSEL: Wayne P. Cipollone, for the Appellant (Plaintiff) Bill Evans, for the Respondents (Defendants), Wolczak and Bozek Don Cormack, for Cumis General Insurance Company

HEARD: May 12, 2003

ORAL REASONS FOR JUDGMENT

O'DRISCOLL J.: (Orally)

1The appellant/plaintiff appeals from the June 23, 2000 judgment of Mr. Justice Roberts, sitting with a jury, at Toronto. The jury assessed general damages at $35,000 and future damages for loss of income at zero. Applying the deductible of $15,000 to the award, the formal judgment is for $20,000 plus prejudgment interest, bringing the total to $21,794.60.

2The appellant asks the Court to set aside the judgment and grant her judgment for general damages and loss of earning capacity to be assessed by the Court, or in the alternative, she seeks a new trial by jury.

3The parties agree that on June 18, 1998, the motor vehicle being operated by Ms. Campbell was rear-ended by a motor vehicle owned by the respondent Marek Bozek and operated by M. Wolczak. The plaintiff reported some injuries and went to the hospital to seek treatment. The respondents argued that she was exaggerating her injuries and noted that neither the police nor an ambulance was called to the scene. Five days after the accident, Ms. Campbell went to her family doctor who submitted a report at trial stating that her diagnosis was of a Grade II acceleration deceleration injury or a Grade II whiplash injury. According to Ms. Campbell, she saw various doctors and alternative health practitioners from June 1998 right up until the trial.

4Ms. Campbell returned to work, part-time, three weeks after the accident and was promoted a short time thereafter. In August 1999, over a year after the accident, Ms. Campbell received a facet joint injection while in the hospital. In December 1999, Ms. Campbell started working part-time from home; this lasted until May of 2000. During this time, she had been on short-term disability at the end of 1999 until January 2000 and again since May of 2000, when she received another injection just before the commencement of the trial.

5During deliberations, the jury asked the Court four questions: When did the plaintiff hire her lawyer? Has the plaintiff seen an eye doctor since her accident? Was Mr. Cipollone ever acquainted with Dr. Besik prior to November 1998? Has Ms. Campbell been to any doctor or physio appointments between January 1999 and August 1999, and if so, what were the approximate dates?

6At trial, counsel for Ms. Campbell argued that the questions from the jury showed that the jury was taking extraneous and irrelevant matters into consideration, and consequently, should be dismissed. Instead, Mr. Justice Roberts felt that the issues could be resolved by recharging the jury and advising them that they must decide the case on the facts and to make reasonable inferences only from the evidence that they heard.

7Liability was admitted; the eight (8) day trial was to assess the plaintiff's damages. Section 134(6) of the Courts of Justice Act states:

"A Court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred."

8Given the recharge by Mr. Justice Roberts, we are of the view that the questions asked by the jury do not meet the plateau set out in s.134(6) of the Courts of Justice Act.

9Mr. Justice Roberts went out of his way to tell the jury that there was no evidence with regard to three of the questions posed by the jurors. We also note that what appears in the respondent's factum, at par. 50, is admitted: that Plaintiff's counsel had no objection to the contents of the charge nor to the recharge of Mr. Justice Roberts.

10Counsel advised us that in this case all sides served a jury notice. Counsel for the appellant did not argue that this assessment was not open to the jury on this record. One of the central issues before the jury was credibility. In the decision of Burlie v. Chesson 2001 24095 (ON CA), [2001] O.J. No. 1960, the Court of Appeal for Ontario, when dealing with an appeal from a jury's verdict said:

7"The principles governing appellant review of a jury verdict are well established. The verdict of a jury will not be set aside as against the weight of the evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it: McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341 at 343."

Madam Justice Charron went on to say:

"The test, rather, is based on an examination of whether the evidence so preponderates against the verdict as to show that it was unreasonable and unjust."

11Counsel for the appellants pointed out that Mr. Justice Roberts, on the threshold motion, stated that, in his view, the plaintiff had met the threshold test.

12The issue is not whether any one on this panel would have awarded damages, as claimed, or whether the trial judge would have awarded those damages. The question is whether the jury's decision is so unreasonable and unjust as to require being set aside. We are of the view that the record in this case does not take us to that conclusion. The appeal will, therefore, be dismissed.

13I have endorsed the back of the appeal book as follows: "This appeal is dismissed for the oral reasons given for the Court by O'Driscoll J. Costs payable by the appellant to the respondents, Wolczak and Bozek, in the sum of $5,000."