Valdez v. Clarke, 2012 ONSC 1110
CITATION: Valdez v. Clarke, 2012 ONSC 1110
DIVISIONAL COURT FILE NO.: DC-10-190
DATE: 2012-02-15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Toscano Roccamo and Koke JJ.
B E T W E E N:
JORGE VALDEZ
Jane Poproski, for the Plaintiff/Appellant
Plaintiff/Appellant
- and -
ODETTE CLARKE
R. K. McCartney, for the Defendant/Respondent
Defendant/Respondent
HEARD: February 13, 2012
On appeal from the Judgment of Madam Justice Jane A. Milanetti of the Superior Court of Justice, sitting with a jury, dated September 24, 2009.
ENDORSEMENT
Toscano Roccamo J.
[1] The Appellant seeks to set aside the verdict of the jury dated September 24, 2009 which found that:
(a) The Appellant was 25 percent liable for the second of three car accidents he was involved in on May 15, 2003, October 3, 2003 and May 17, 2004;
(b) The Appellant’s total combined general damages for the three motor vehicle accidents was $25,000, before application of the $30,000 deductible under Bill 198 (thereby barring the Appellant from any recovery);
(c) The second motor vehicle accident was 75% responsible for the Appellant’s damages;
(d) The Appellant did not suffer any special damages;
(e) The Appellant was not entitled to any compensation for past economic or future economic loss.
The Standard of Review
[2] The standard of review of a jury verdict in a civil case dictates that a jury verdict is not to 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] S.C.R. 341 at 343, quoted with approval in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at 259. See also Snushall v. Fulsang (2005), 78 O.R. (3d) 142 (C.A.) at para. 19.
Appellant’s Position
[3] The Appellant’s appeal was prompted by, and to some extent rests upon, the subsequent Judgment of Milanetti J. dated January 6, 2010, which determined that the Appellant’s claim met the statutory threshold under Bill 198. Milanetti J. concluded that the Appellant was a credible witness who suffered chronic pain, and whose damages resulted in large part from the second accident. She further found that the Appellant’s quality of life was significantly affected by his injuries, and that the closure of a cleaning business the Appellant maintained with his wife was due to accident-related injuries which substantially interfered with his ability to carry on his employment, including the business.
[4] The Appellant submits that, since the only evidence with respect to liability did not establish that any act or omission on his part caused the accident; and since the only medical evidence received by the jury was the Appellant’s, the jury’s verdict, in contrast with the decision of Milanetti J., was so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judiciously could have reached it.
[5] The Appellant further submits that a number of statements made by defendant’s counsel at trial and in closing argument, taken together, were inappropriate and/or inflammatory and invited the jury to arrive at its verdict on the basis of personal experience and emotion rather than on the basis of the evidence heard. These particular statements by defence counsel are detailed at paragraphs 11 and 12 of the Appellant’s Factum and will not be repeated here.
[6] With respect to the findings of the jury on liability, the Appellant relies on the Court of Appeal’s decision in McIntee v. Cheung, 2007 ONCA 2008, for the proposition that, without evidence specifically addressing some act or omission on the Appellant’s part, the jury verdict attributing any degree of liability to Appellant is unjust and unreasonable and should be set aside.
[7] The Appellant also relies on the reasoning of the British Columbia Court of Appeal in Araujo v. Read, 2004 BCCA 267, which requires appeal courts to intervene where submissions to the jury may be characterized as inappropriate or inflammatory.
[8] This court in Abdallah v. Snopek has already found that, where the counsel’s address to a jury is offensive or irrelevant to any issue properly before the jury, designed to inflame emotions rather than appeal to rationality, and where there is a real concern that the jury was thereby improperly swayed in its verdict, the verdict should be set aside and a new trial ordered, even where there is no timely objection raised by counsel.
Analysis and Conclusions
[9] Having considered the decision of Milanetti J., and the impugned remarks to the jury made by defence counsel, in the context of the evidence received, we cannot conclude that “no jury reviewing the evidence as whole and acting judicially could have reached the verdict” handed down in this case.
[10] As Milanetti J. indicated, this was a case with a threshold determination where, “the judge is in the odd spot of potentially coming to a different conclusion than did the jury in its fact finding quests,” when exercising its power to weigh the evidence, make findings of credibility, and draw inferences on the evidence. In standard instructions to juries, a trial judge reminds jury members of the exercise of these responsibilities and their ability to accept some or all or none of the evidence of witnesses, and to use their common sense in doing so.
[11] Milanetti J.’s, decision reflects instances where her findings would not, of necessity, be shared by all:
(1) In reference to the evidence on the Appellant’s pain and suffering elicited on cross-examination she referred at para. 19 to the Appellant’s pre-accident medical history of similar complaints, and noted at para. 22 that he was “tripped up a number of times”; not remembering some historical chart entries and gave contradictory evidence in two prior examinations for discovery. While she found that these did not affect her findings on credibility, it was open to a jury to conclude otherwise.
(2) Milanetti J. concluded at para. 24 that “the jury did not accept Mr. Valdez’ version of events, or at least, did not have tremendous sympathy for him. It could be inferred that they did not find him to be credible.”
(3) The evidence on damages before the jury left open this potential. Similarly, the evidence of the Appellant, the Respondent and her passenger, Lana Lowe, on liability was such that the jury might well have concluded the Appellant failed to take evasive or appropriate action to avoid collision and was, therefore, partly responsible for the accident.
(4) Milanetti J. noted at para. 28 that while the Appellant’s doctors clearly attributed his condition to the October 2003 accident “a more cynical view might suggest that all of the evidence was tailored to fit the new trial scenario (where only the second car accident was being litigated).”
(5) Milanetti J. herself at paras. 32 and 34 concluded that the Appellant’s indefinite layoff from his main occupation at Arvin Meritor was not the result of the accidents but the result of the Appellant’s low seniority, economic downturn and perhaps the Canadian dollar.
This, coupled with the evidence elicited in the Appellant’s cross-examination, convinced Milanetti J. that the job taken by the Appellant as a long haul truck driver to replace the job he lost at Arvin Meritor was a more physically demanding occupation.
(6) At para. 36, Milanetti J. intimated that the Appellant’s pattern of consistent full-time work may well have militated against a threshold claim, although her own findings were otherwise.)
(7) With respect to the loss of the cleaning business, in reviewing the evidence on this issue, Milanetti J. observed at para. 38 that the lost business “could be cast as unrelated to the accidents”, though she concluded otherwise. It was, therefore, open to the jury to find the business was lost for other reasons.
[12] Before the jury began its deliberations, Milanetti J. addressed the reference by defence counsel to the Appellant’s claim for damages of $1,750,000 in the Statement of Claim. She gave appropriate limiting instructions mid-trial, and in her final charge to the jury. As conceded by the Appellant, this alone would not rise to the standard of review necessary to set aside the verdict.
[13] Finally, the analogy used by defence counsel comparing the jury’s responsibility to consider the evidence presented and arrive at a conclusion to the role of police in the TV program “48 Hours”, was not the subject of objection by the Appellant’s counsel to the closing address by defence counsel. While this alone would not necessarily negate the potential to set aside the verdict of the jury, taken in context and in light of all of the other evidence, we cannot conclude that “no jury reviewing the evidence as a whole and acting judicially could have reached the verdict” it did.
[14] The complaints noted about the statements made by defence counsel, taken alone or cumulatively do not rise to the level of censure pronounced in Abdallah. In the result, the appeal is dismissed, with costs payable by the Appellant to the Respondent fixed in the amount of $4,500.00; inclusive of disbursements and taxes.
Aston J.
Toscano Roccamo J.
Koke J.
Released: February 15, 2012
CITATION: Valdez v. Clarke, 2012 ONSC 1110
DIVISIONAL COURT FILE NO.: DC-10-190
DATE: 2012-02-15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Toscano Roccamo and Koke JJ.
B E T W E E N:
JORGE VALDEZ
Plaintiff/Appellant
- and –
ODETTE CLARKE
Defendant/Respondent
REASONS FOR JUDGMENT
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Released: February 15, 2012