COURT OF APPEAL FOR ONTARIO
DATE: 20001110
DOCKET: C33084
RE: CHRISTOPHER ELLWOOD CREASOR (Plaintiff/Respondent) – and – THE CADILLAC FAIRVIEW CORPORATION (Defendant/Appellant)
BEFORE: MORDEN, GOUDGE and FELDMAN JJ.A.
COUNSEL: Geoffrey Adair and Krista Springstead,
for the appellant
Daniel Dooley and Roger Oatley,
for the respondent
HEARD: November 6, 2000
On appeal from the judgment of Mr. Justice John Howard Jenkins dated October 8, 1999, made at Newmarket.
E N D O R S E M E N T
[1] The appellant agrees that there was evidence before the jury on which they could properly find liability and damages as they did. The appellant’s single argument, based on several particulars, is, essentially, that the trial was not a fair one. The major submissions are:
- Late service of the expert’s reports
[2] We agree with the trial judge’s ruling. The defendant did not show any prejudice flowing from the timing of delivery of the reports.
- The applicability of the Building Code Act regulation
[3] Whether or not the building code applied to this ramp, there was ample evidence that the construction of the two-foot ramp, contrary to the defendant’s architect’s design, created a clear risk of harm to users of wheelchairs. This was confirmed by the defendant’s expert, Walters, who said that it would be “quite dangerous”.
- The opening and closing addresses of the plaintiff’s counsel
[4] While these may have contained some extravagances on the part of the plaintiff’s counsel, their content was supported by the evidence which was called. Furthermore, there was no objection to them by the defence.
- The submitted Brown v. Dunn ruling
[5] It is not possible to determine from the record whether defence counsel’s failure to put the ambiguous statement in the occurrence report to the plaintiff in cross-examination was through deliberate decision or inadvertence. Further, he did not ask the trial judge to exercise a discretion respecting the recall of the plaintiff. In these circumstances, we are not persuaded that the trial judge erred.
- The charge to the jury
[6] Taking the charge as a whole, we are not persuaded the charge contains any error that would justify new trial or was in any way unfair to the defence.
[7] Finally, approaching the appeal in the cumulative fashion, as the appellant requests, in our view, there was nothing unfair in the conduct of the trial and nothing occasioning any substantial wrong or miscarriage of justice.
[8] Respecting gross-up, in our view, the trial judge properly addressed the best interests of the plaintiff on the evidence before him.
[9] For these reasons, the appeal is dismissed with costs.
“J.W. Morden J.A.”
“S.T. Goudge J.A.”
“K. Feldman J.A.”