DATE: 20021010 DOCKET: C37187

COURT OF APPEAL FOR ONTARIO

RE: DAVID YOUKHANA (Moving Party/Appellant) –and– CLIFFORD BELL (Responding Party/Respondent on Appeal)

BEFORE: LABROSSE, GOUDGE and GILLESE JJ.A.

COUNSEL: Frederick Simon Hawa, for the appellant

Hugh G. Brown, for the respondent

HEARD: October 4, 2002

RELEASED ORALLY: October 4, 2002

On appeal from the judgment of Justice Joan L. Lax of the Superior Court of Justice, sitting with a jury, dated September 24, 2001.

E N D O R S E M E N T

[1] The appellant/plaintiff appeals the dismissal of his action pursuant to s. 267.1(3) of the Insurance Act, R.S.O. 1990, c.I.8 following the jury’s assessment of his damages at $0.00. The appellant submits that the comment the trial judge made during the cross-examination of the appellant, along with the trial judge’s refusal to allow for the scheduling of the appellant’s medical witnesses, created a reasonable apprehension of bias and demonstrated a lack of impartiality.

[2] During the course of a ruling on an objection made during the cross-examination of the appellant, the trial judge made the comment to counsel that “the jury will decide what to do in the end but this strikes me as a quite hopeless case.” The comment was made at a point when the credibility of the appellant had been seriously shaken. However, the trier of fact was never made aware of this comment. It was made in the absence of the jury.

[3] Following the charge to the jury, counsel for the appellant made no objection to the charge and informed the trial judge that he thought the charge was fair and reasonable.

[4] Looking at the trial as a whole, there is no evidence of bias or lack of impartiality.

[5] The appellant further submits that the trial judge erred in the exercise of her discretion in failing to allow medical witnesses to testify. Counsel for the appellant did not arrange the scheduling of the medical witnesses in a timely fashion and did not ensure their attendance by serving them with a summons to witness. The trial judge’s attempt to accommodate the appellant’s medical witnesses was reasonable.

[6] This was a case where credibility was particularly important. The issue was not so much whether the appellant had medical problems; the issue was the cause of those problems. Medical evidence was adduced as the reports of the medical witnesses were filed and the trial judge adequately reviewed the reports in her charge to the jury. The viva voce evidence of the medical witnesses could not have rehabilitated the appellant’s credibility and advanced his case.

[7] We would not accede to these grounds of appeal.

[8] The appeal is dismissed. Costs are fixed in the amount of $8,500, including G.S.T.

Signed: “J. Labrosse J.A.”

“S.T. Goudge J.A.”

“E.E. Gillese J.A.”