Court of Appeal for Ontario

Date: 2017-03-07 Docket: C61330 Judges: Juriansz, Brown and Miller JJ.A.

Between

Claire Norman by her litigation guardian Roslynn Norman, Ian Norman, Roslynn Norman, Kathryn Norman, Adam Norman and James Norman

Plaintiffs (Respondents)

and

Jeremy van Meppelen Scheppink, Victor Litostanski and Inessa Litostanski

Defendants (Appellants)

Counsel

R. Shawn Stringer, for the appellants

James D. Virtue and James J. Mays, for the respondents

Heard: March 1, 2017

On appeal from the judgment of Justice A. Duncan Grace of the Superior Court of Justice, dated October 23, 2015.

Endorsement

[1] The appellant was driving westbound on a two-lane road when a vehicle travelling in the eastbound direction was struck from behind causing it to spin, flip onto its roof and cross over into westbound lane. The appellant's vehicle collided with that vehicle in what was termed at trial, "the second collision". The jury found there was negligence on the part of the appellant that caused or contributed to the second collision. The appellant appeals.

[2] The respondents had settled their claim against the driver who caused the first collision, and had also settled the quantum of damages with the appellant. Consequently, the only question for the jury was whether the appellant was negligent.

[3] Appellant's counsel advances three grounds of appeal.

[4] First, appellant's counsel submits that the jury held the appellant to a standard of perfection and its verdict defies common sense. We do not accept the argument. The trial judge repeatedly instructed the jury that the law does not hold a driver to a standard of perfection. Moreover, there was ample evidence upon which a properly instructed jury could find the appellant was negligent. The evidence of the respondents' accident reconstruction expert, by itself, would support the verdict. Eyewitness testimony of others, including the driver of the respondents' vehicle, was available evidence, which if accepted by the jury, would support the verdict.

[5] The second ground of appeal is that the trial judge erred in charging the jury that "a prudent motorist should drive at a rate of speed and with his vehicle under such control that the motorist is able to pull up within the range of his vision". We agree that this instruction was inappropriate in the circumstances of this case. Respondents' counsel acknowledges this model charge is intended for rear end collisions and was inapplicable.

[6] Nevertheless, upon considering the charge as a whole against the backdrop of the evidence led at trial we do not think this isolated sentence would have caused the jury to engage in an incorrect analysis. In his charge, the trial judge also instructed the jury as follows:

At all times an operator of a vehicle must exercise the same level of caution as might be expected in like circumstances by a reasonably prudent driver. Each driver must take proper precautions to guard against such risk as might reasonably be anticipated to arise from time to time as the driver proceeds along the road. This degree of care and nothing more is required…

If, however, a situation develops and the motorist sees or should see a situation of danger or emergency arising, the driver must take reasonable care to try to extricate himself from that situation if possible. The driver's efforts in this regard are not to be judged by a standard of perfection, but by a standard of reasonableness.

[7] As well, appellant's counsel recognizes that the trial judge's reference to the driver's ability to pull up within the range of his vision, standing on its own, would not warrant a new trial.

[8] We note that the trial judge provided his proposed charge to counsel and appellant's trial counsel did not object to the instruction now impugned.

[9] We would not give effect to this ground of appeal.

[10] The third ground of appeal advanced is that the trial judge erred by failing to provide adequate instructions in response to improper closing submissions of respondents' trial counsel. Respondents' trial counsel, Mr. James May, made the following remarks in his closing address to the jury:

This is a serious event in the life of the Norman family. They will be living with the effects of this collision, whatever you decide, for the test of their lives and it's - we're trying to understand what resources they can have to care for a very badly injured young lady and an injured mom.

This is a horrible thing [that] happened to the Norman family. The effects of it will be with them forever. Does someone bear along with them the financial responsibility, the financial consequences of what happened?

We're saying a horrible thing happened to the Norman family that's going to cost them - for the rest of their life, it's going to cost them.

Now tomorrow the Norman family will await your verdict, the final steps to justice are yours. When you issue your verdict I'd ask you to remember that you'll get to go home. I'll get to go home. His Honour will get to go home. Ms. Bennett will get to go home and we'll all get to live out our lives but no matter what you decide, the Norman family has to live with this tragedy for the rest of their lives.

[11] We reject respondents' counsel's attempt to rationalize these closing submissions as factually correct and made as part of an earnest and fulsome plea to the jury seeking compensation for an injured child. The parties had settled the issue of damages. These remarks were so evidently irrelevant and improper, we infer counsel made them deliberately in an attempt to influence the jury. When pursuing their clients' interests, counsel must not disregard their superordinate duties as officers of the court and to the administration of justice.

[12] Appellant's trial counsel objected to these improper remarks and sought a correcting instruction. The trial judge reviewed what he proposed to say with appellant's counsel. Trial counsel did not press for a more specific and strenuous instruction. The trial judge instructed the jury that the only issue it had to decide was whether the appellant was negligent and emphasized that sincere sympathy for those involved should play no role in their analysis. While a more pointed instruction might have been given, it is not clear that appellant's counsel would have welcomed a repetition of improper comments.

[13] In the circumstances, we would not give effect to this submission. Nor are we persuaded that upon considering the interplay of the three grounds the appellant has raised, a new trial is warranted.

[14] The appeal is dismissed. Costs in favour of the respondents are fixed in the amount of $25,000 all-inclusive.

"R.G. Juriansz J.A."

"David Brown J.A."

"B.W. Miller J.A."