COURT FILE NO.: DC-08-73
DATE: 2009-12-16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Cunningham, A.C.J. Platana, McCartney, JJ.
B E T W E E N:
SLOBODAN JOVANOVIC,
Marc A. Munro. for the Plaintiff (Appellant)
Plaintiff (Appellant)
- and -
HAMILTON-WENTWORTH REGIONAL POLICE SERVICES BOARD, HAMILTON-WENTWORTH REGIONAL POLICE, POLICE CHIEF ROBERT MIDDAUGH, POLICE CONSTABLE R. DRUMM, THE T. EATON COMPANY LIMITED, SANDOR ILLES, FLEETWOOD AMBULANCE, CHRIS BAYARDS and TOM MANTIONE,
Daniel Bartley , for the Defendants (Respondents) Hamilton-Wentworth Regional Police Services Board, Hamilton-Wentworth Regional Police, Police Chief Robert Middaugh and Police Constable R. Drumm
Paul Philp , for the Defendants (Respondents) The T. Eaton Company Limited and Sandor Illes
Defendants (Respondents)
Paul Philp , for the Defendants (Respondents) Fleetwood Ambulance, Chris Bayards and Tom Mantione
HEARD: November 9, 2009,
at Hamilton, Ontario
PLATANA, J.
[1] This is an appeal from a judgment of a jury in a civil action which dismissed the Appellant’s (Plaintiff’s) claim in its entirety and granted judgment on counterclaims for the Defendants (Respondents) Bayards and Mantione in the amount of $3,000 for general damages and $16,000 in punitive damages. The appeal also seeks leave to appeal and appeals to set aside a costs award of the trial judge which granted $75,000 to the Defendant 5001781 Ontario Limited (Fleetwood Ambulance), Bayards and Mantione; $85,000 to the Defendant Hamilton-Wentworth Regional Police Services Board; and $100,000 to the Defendant T. Eaton Company Limited.
[2] The grounds of appeal are as set out in the factum and can be summarized as positing that the trial judge erred in: i) discretionary decisions in refusing to adjourn the trial, both at the opening of trial and during the course of the trial in order for the Appellant to procure the attendance of witnesses; ii) a decision not to permit medical reports pursuant to s. 52 of the Evidence Act; iii) by not intervening during what the Appellant says was unfair testimony given by a medical expert which constituted a personal attack on the Appellant’s character and credibility; iv) by not permitting the Appellant to use the transcript of previous criminal proceedings as part of his own cross-examination; v) by allowing prejudicial cross-examination of the Appellant on matters that had been determined to be irrelevant. In addition to that, the Appellant submits that the judge misdirected the jury and that the judge made an excessive award of costs. He asks that both awards be set aside.
[3] Counsel for the Appellant acknowledged at the outset that, based on the evidence presented, the jury verdict could not be challenged. He framed the central issue as being one of fairness in terms of the evidence which was presented. He further acknowledged that none of the errors in the charge to the jury in themselves would be sufficient to grant the relief requested but argued that an accumulation of errors made by the trial judge warranted a new trial.
[4] He submitted that all of the grounds of appeal advanced were based on errors of law and that the standard of review is therefore that of correctness: Housen v. Nokolaisen, 2002 SCC 33, 2002 CarswellSask 178, SCC. As a consequence he submits that this court is not required to give any deference to the jury decision or cost award.
[5] The Respondents argue that the issues are of mixed fact and law, and are subject to a standard of palpable and overriding error. With respect to the issues raised by the Appellant, the Respondents submit that different standards apply but that in all issues strong deference should be shown to the decisions of the trial judge and the jury.
[6] In summary, this claim was instituted claiming damages arising out of an incident where the Appellant was confronted by security officials at an Eaton’s store concerning an incident of alleged shoplifting. He was questioned, released, and then later found in the parking lot in some distress. Ambulance attendants arrived, an incident took place between the ambulance attendants and the Appellant and he alleges injuries suffered in the course of that incident. The Appellant was subsequently charged with a number of criminal offences arising out of the incident but convicted of assault.
[7] Mr. Jovanovic commenced this action on October 3, 1997, alleging assault, negligence, intentional infliction of nervous shock and breach of fiduciary duty. As a result of a motion by the Respondents, the Appellant set the matter down for trial on September 24, 2002; however, the action was struck from the list at assignment court in February 2003. On consent, the action was set down for trial for November 2004.
[8] In November 2004 the Appellant requested an adjournment. In his reasons for costs, the trial judge notes that the adjournment was requested because the Appellant had not filed medical reports within the time required by the Rules of Civil Procedure. Although the judge presiding in November 2004 was disinclined to grant the adjournment, there were no judges available to hear this matter in November 2004 or October 2005 and the case was subsequently adjourned to begin in October 23, 2006. On that date, Mr. Jovanovic’s counsel, who had been counsel since the institution of the action, obtained an order to be removed from the record and the trial was again adjourned. On November 6, 2006, the assignment court judge set a trial date of October 23, 2007, and indicated to Mr. Jovanovic that the trial would go ahead whether he had a lawyer or not.
[9] On October 18, 2007, the Appellant brought another motion to adjourn the trial alleging that he did not have counsel. That motion was dismissed and the trial date of October 23rd was upheld.
[10] At the commencement of the trial on October 23rd Mr. Jovanovic again requested an adjournment on the basis that he could not find a lawyer. The trial judge refused the adjournment request and the trial proceeded with Mr. Jovanovic representing himself. The jury dismissed the claim and awarded the damages referred to on the counter-claims of some of the Defendants.
[11] Mr. Jovanovic filed a Notice of Appeal to the Court of Appeal on December 7, 2007, but failed to perfect the appeal. On September 26, 2008, he brought a motion before the Court of Appeal seeking leave to extend the time to perfect his appeal. The Defendants sought by cross-motion an order dismissing the appeal for delay and questioned whether the Court of Appeal had jurisdiction to hear the matter. The Court of Appeal transferred this appeal, along with the Appellant’s motions, to Divisional Court and the Appellant was ultimately given an extension to perfect his appeal to January 29, 2009. Materials were actually filed on February 17, 2009.
[12] At the commencement of the trial, the Appellant sought the adjournment on the basis that he had no lawyer, that the claim was beyond his competence, and that he had poor cognitive ability in English. The trial judge noted that the matter had been commenced ten years previous, had been fixed for trial one year earlier, and that a request for adjournment the week previous had been denied. No indications were given as to any efforts he had made to obtain counsel. Granting of an adjournment is a discretionary matter and a trial judge has wide latitude in deciding whether to grant or refuse the request. The decision is discretionary and the scope for appellate intervention is correspondingly limited. Adjournments require a balancing of interests between the parties and the administration of justice in the orderly processing of civil trials. Khimji v. Dhanani, 2004 CarswellOnt 525 (Ont C.A.). We see no error in the judge’s exercise of his discretion not to grant an adjournment.
[13] The trial judge then explained, in extensive detail the trial process, including the procuring the attendance of witnesses, the procedure for expert witnesses, the use of transcripts, and the scope and procedure of examination-in-chief and cross-examination. The Appellant was asked throughout the explanation if he understood the trial judge’s instruction and replied that he did. The Appellant then gave the names of the doctors that he proposed to call. The witnesses had not been subpoenaed.
[14] Part of the evidence during the course of the trial was an Agreed Statement of Facts which had been prepared when the Appellant had counsel when the trial was to commence in October of 2006. The Statement was compiled solely by including Notices to Admit which had been served by counsel. The agreed facts contained a reference to comments made by the Appellant to the trial judge at the time of his criminal charges. The Appellant argues that that should have been expunged.
[15] At the opening of this trial, the trial judge made reference to the Agreed Statement in comments to the Appellant. The judge asked the Appellant if he had any comments on the Agreed Facts in order that he could ascertain the Appellant’s position. No follow up discussion took place; however, the facts were ultimately admitted after the holding of a voir dire. There is no error and the decision to admit the Statement was reasonable.
[16] The Appellant argues that the trial judge erred in admitting the evidence of the transcript of the criminal trial and the criminal record of the accused resulting from the criminal charges. He did not permit the reasons of the trial judge to be used by the Appellant during the course of his cross-examinations as he ruled that the reasons were irrelevant. In the course of this civil trial, the Appellant attempted to explain why he had made a derogatory comment to the trial judge at the criminal trial. The judge ruled that that was irrelevant and did not permit that evidence to be given. The Appellant argues that since the statement was part of the Agreed Statement of Facts, he should have been allowed to explain why at the criminal trial he made such a comment. We see no error in the trial judge’s ruling.
[17] At trial the Respondents called Dr. Wheeler and qualified him as an expert witness in the field of psychology. During the course of his testimony he rendered an opinion that the Appellant was delusional, and that he had a “paranoid delusional disorder with a litigious bent” as described in the DSM-IV. The Appellant argues that this evidence was highly prejudicial and that the trial judge should have intervened to stop such personal inflammatory attacks on the Appellant’s character and credibility. A trial judge’s decision on admissibility of expert evidence is to be viewed with deference. While it may have been preferable for the judge to comment that they should pay no attention to the doctor’s opinion in assessing credibility of the plaintiff, throughout the charge the judge repeatedly told the jury that findings of credibility were theirs to make. He specifically told the jury that in looking at the expert’s evidence they should consider whether the expert “was fair; did he go beyond impartiality; did he become an advocate?” The test for a trial is to balance prejudice versus probative value of the evidence. Although he did not specifically comment on the application of the test, in the circumstances of this case, we see no error in the trial judge’s non-intervention.
[18] The Appellant argues that the decision of the trial judge not to permit the Appellant to file reports which may have contained evidence contrary to Dr. Wheeler’s opinion of the Appellant was an error. Following the completion of Dr. Wheeler’s evidence, the Appellant then sought to introduce the reports of his own doctors as to injuries suffered. The Appellant sought an adjournment to call the doctors. Counsel for the Respondents’ objected on the basis that the doctors had not been called in-chief, and were now not available for purposes of cross-examination on the reports sought to be filed. The Respondents’ argue that, at the commencement of the trial, the Appellant had indicated an intention to call the doctors and the Respondents then assumed there would be an opportunity for cross-examination. The doctors were then not called and the the Respondents argued the the Appellant should not then be permitted to file the reports. The Respondents argue that the only issue of credibility which might have arisen from the reports was in relation to any physical injuries claimed to have been suffered by the Appellant at the hands of the ambulance attendants and the Respondents Drumm.. The trial judge refused the adjournment on the basis of delay and the fact that the Appellant had not taken any steps to secure the attendance of the doctors. The trial judge did, however, review the reports, and exercised his discretion under s. 52 to permit one report to be filed on what the trial judge called a basis of “fairness.”
[21] The Respondents’ argument is that as the jury found no liability against the Defendants, that ruling cannot be considered in the circumstances of this case to constitute any error. A trial judge is entitled to deference on decisions about admissibility of evidence absent some error in principle or misapprehension of evidence: R. v. Coultice 2004 CarswellOnt 5587; Robb Estate v. St. Joseph’s Health care Centre 1999 CarswellOnt 733. Recognizing that the trial judge had at the commencement of trial explained the procedure of medical reports and witnesses, and that this request for an adjournment was now to call evidence at the conclusion of the Defendants’ case, there is no palpable and overriding error in this ruling.
[22] The Appellant points to a number of errors made by the trial judge in his charge to the jury. As noted earlier, counsel acknowledges that none of the errors in itself is sufficient but that an accumulation of the errors warrants the relief sought. A standard of perfection is not required in a charge to a jury and a reviewing court should consider whether the jury would have properly understood the law at the end of the charge: Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board, [2004] O.J. No.2811 (C.A.). A new trial is contrary to the interest of the public and should not be ordered unless the interests of justice plainly require that should be done: Arland v. Taylor, [1955] O.R. 131 (C.A.). The overall issue in this case was one of credibility of the parties as to the incident and, by dismissing the Appellant’s claim, the jury clearly accepted the Respondents’’ version of the evidence. Although parts of the judge’s charge could have been expanded, both as to liability and punitive damages, no substantial wrong or miscarriage of justice has been occasioned.
[23] The scope of appellate review for punitive damages awarded is whether a reasonable jury, properly instructed, could have concluded that an award in such an amount, and no less, was rationally required to punish the conduct: Whiten v. Pilot Insurance, 2002 SCC 18, [2002] S.C.J. No. 19 (S.C.C.). The trial judge advised the jury that punitive damages were an exception rather than the rule and that the jury had to be satisfied that the misconduct was high-handed or insolent vindictive or malicious or showed contempt to the other’s rights. For a punitive damages award to be reversed, it must be so inordinately large as obviously to exceed the maximum limit within the jury may properly operate: Whiten v. Pilot. We are satisfied that there is sufficient basis for the jury in this case to have awarded the punitive damages as found and this aspect of the appeal is dismissed.
[24] On the issue of costs, if leave to appeal is granted, the Appellant relies on Boucher v. Public Accountants Council (Ontario), 2004 CarswellOnt 2521 (Ont. C.A.) in submitting that the trial judge erred in awarding costs on a partial indemnity basis that are virtually the same as an award on a substantial indemnity basis. Further counsel submits that the award is not “fair and reasonable” as noted in Zesta Engineering Ltd. V. Cloutier, 2002 CarswellOnt 4020 (Ont. C.A.).
[25] The Respondents argue that costs are in the discretion of the judge and that high deference is owed, and absent an error in principle, the award should not be overturned.
[26] Leave to appeal is granted, however, we see no error in principle.
[27] This appeal is dismissed. The Respondent may make submissions as to costs in writing by December 18 and the Appellant may reply by January 8, 2010.
______________________________
CUNNINGHAM, A.C.J.
______________________________
PLATANA, J.
______________________________
MCCARTNEY, J.
Released: December 16, 2009
(Note: original dated December 11, 2009 but changed manually to December 16, 2009 as not received in RSJO for release until December 15, 2009) 1st and last page dates changed electronically and reprinted. signature page date changed manually by Kim Taylor
COURT FILE NO.: DC-08-73
DATE: 2009-12-16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SLOBODAN JOVANOVIC
Plaintiff (Appellant)
- and –
HAMILTON-WENTWORTH REGIONAL POLICE SERVICES BOARD, HAMILTON-WENTWORTH REGIONAL POLICE, POLICE CHIEF ROBERT MIDDAUGH, POLICE CONSTABLE R. DRUMM, THE T. EATON COMPANY LIMITED, SANDOR ILLES, FLEETWOOD AMBULANCE, CHRIS BAYARDS and TOM MANTIONE,
Defendants (Respondents)
REASONS FOR JUDGMENT
Cunningham A.C.J.
Platana J.
McCartney J.
Released: December 16, 2009