COURT OF APPEAL FOR ONTARIO
DATE: 20001005
DOCKET: C31129
RE: ADRIENNE B. MIGOS (Plaintiff/Appellant) v. ZURICH INDEMNITY COMPANY OF CANADA (Defendant/Respondent)
BEFORE: CHARRON, MacPHERSON and SHARPE JJ.A.
COUNSEL: Colleen L. Burn,
for the appellant
Peter Hagen,
for the respondent
HEARD: September 29, 2000
On appeal from the decision of the Honourable Mr. Justice James B. Chadwick dated November 13, 1998
E N D O R S E M E N T
[1] The appellant appeals from the order of Chadwick J. striking the jury and from his judgment dismissing her action.
[2] There are two main grounds of appeal.
- Striking of the jury
[3] The power of an appellate court to review an order striking a jury is very limited. In this case, it is our view that the trial judge considered all the relevant factors on this issue, applied correct principles and exercised his discretion judiciously. The appellant’s main complaint is that the trial judge made a ruling at the commencement of the trial before hearing any of the evidence. Although it is preferable in some cases to hear evidence before ruling on a motion to strike the jury notice so as not to deprive a party of its right to a jury trial prematurely, we see no error in this case. The trial judge’s decision, when assessed against the full record, clearly fell within his discretionary mandate. We see no reason to interfere.
- Rejection of the medical evidence
[1] Likewise, we are of the view that it was within the trial judge’s purview to reject the expert testimony of the medical witnesses. The trial judge found it difficult to accept this evidence because the expert opinion was primarily based on information received from the plaintiff which did not present the full picture and because he found that the witnesses were not objective in the presentation of their evidence. The appellant has not demonstrated that there is any reason to interfere with those findings of fact and credibility.
- Other grounds
[2] The appellant raises two further grounds of appeal and relies on the written argument in her factum. We see no merit to these additional grounds of appeal.
[3] The appeal is dismissed with costs.
(signed) “Louise Charron J.A.”
(signed) “J. C. MacPherson J.A.”
(signed) “Robert J. Sharpe J.A.”