DATE: 20021108 DOCKET: C36249

COURT OF APPEAL FOR ONTARIO

RE: SUZANNE DESJARDINS (Plaintiff) – and – THE T. EATON COMPANY (Defendant/Appellant) – and – MARATHON REALTY CORPORATION (Defendant/Respondent)

BEFORE: MORDEN, DOHERTY and FELDMAN JJ.A.

COUNSEL: Clive Savage for the appellant T. Eaton Company

John I. Travel and Catherine Coulter for the respondent Marathon Realty Corporation

HEARD: November 5, 2002

RELEASED ORALLY: November 5, 2002

On appeal from the judgment of Justice Hugh Roderick MacLean dated March 23, 2002.

E N D O R S E M E N T

[1] [1] We are not persuaded that there is any proper basis that would justify our interference with the verdict in this case. We address the appellant’s submissions in the following paragraphs.

[2] [2] With respect to the evidence relating to insurance and insurance payments, we think that the trial judge’s clear instruction to the jury that this evidence be ignored was sufficient. While we think that it would have been better if the trial judge had been more specific in the instruction given and had told the jury that the payments were not an admission of liability, such an instruction was not mandatory in the circumstances.

[1] [3] With respect to the judge’s instructions to the jury in which the evidence was misstated, we are satisfied that, in light of his general instruction that the jury was the sole judge of the facts and that it was their duty to disregard the judge’s view of the facts if it was different from theirs, the misstatement occasioned no prejudice. Further, it would have been immediately obvious from the basic positions of the parties that he had misstated Eaton’s position. No doubt, when the error was brought to his attention, he should have quite simply corrected it but, once again, this was not mandatory.

[2] [4] We do not think that counsel for Marathon Realty did misrepresent any evidence to the jury but, in any event, the general instruction to the jury respecting its recollection of the evidence referred to above covers this ground of appeal as well.

[3] [5] We are not persuaded that the trial judge erred in the exercise of his discretion with respect to the admission of Sortir’s evidence. His evidence was cumulative. Further, with respect to any possible prejudice to Eatons that it could have occasioned, we note that it did not bear on the particulars of negligence found by the jury against Eatons and hence, was not material to the result.

[4] [6] Taking the foregoing into account, we do not think the trial judge erred in his decision respecting the level or amount of costs awarded.

[5] [7] The appeal is dismissed with costs fixed at $9,000 including disbursements plus G.S.T.

“J.W. Morden J.A.”

“D. Doherty J.A.”

“K. Feldman J.A.”