COURT OF APPEAL FOR ONTARIO

DATE: 20000928

DOCKET:C30018

LASKIN, GOUDGE AND FELDMAN JJ.A.

BETWEEN: )

) Ira E. Book

CHARLES COOPER ) for the appellant

Plaintiff )

(Appellant) )

and ) Kerri Kamra

) for the respondent

JACK WHYNE, CAROL ANNE WHYNE, )

THOMAS QUINN, PAUL RIVETT, )

EDWARD DEMCHUK, THOMAS )

KAUFMAN )

Defendants )

(Respondents) )

) Heard: September 14, 2000

On appeal from the judgment of Justice R.M. Thompson dated May 28, 1998.

BY THE COURT:

[1] The appellant was injured when he rode his bicycle into two yellow ropes that the respondents had strung across their driveway to restrict people from driving on to their property.

[2] The appellant appeals from the dismissal of his action which was tried by Mr. Justice R.M. Thompson, together with a jury. The dismissal was based on the jury’s finding that the respondents had taken reasonable care to see that the appellant was reasonably safe while on the respondents’ property.

[3] In this court, the appellant argued that the charge to the jury was fatally defective in several respects.

[4] First, he argued that by telling the jury that there was no obligation on the respondents to guard against any unusual or unreasonable use of the premises by the appellant, the trial judge deflected the jury’s attention from the reasonableness of the respondents’ conduct in maintaining their premises.

[5] Second, he argued that the charge effectively took away from the jury any possible role of the “for sale” sign on the neighbouring premises in attracting the appellant to enter the respondents’ premises.

[6] In our view, in the context of the entire charge, neither of these aspects of it are sufficient to create reversible error.

[7] The reference to any unusual or unreasonable use of the premises by the appellant, while better not made, constitutes but two sentences in a charge which makes clear on a number of occasions that the question for the jury focuses on the respondents and whether they maintained the premises in a reasonably safe condition.

[8] As for the “for sale” sign, while the charge might have been somewhat clearer, the jury was told to disregard only the suggestion that the for sale sign was an allurement for which the respondents were responsible.

[9] The issue before the jury was very straightforward, namely, whether the respondents created an unreasonable hazard when they placed the two ropes across their driveway. Reading the charge as a whole, we conclude that the jury would have properly understood the issue it had to decide. The trial judge correctly outlined the relevant law and reviewed the evidence of the parties. He concluded his charge on liability by clearly setting out the positions of the appellant and the respondents on the fundamental issue. In our view, the jury would have properly understood its task.

[10] The appeal must be dismissed with costs.

[11] Given this outcome, it is unnecessary for us to deal with the contingent cross-appeal on damages. It is dismissed without costs.

Released: September 28, 2000 “JL”

“John Laskin J.A.”

“S.T. Goudge J.A.”

“K. Feldman J.A.”