DATE: 20021108 DOCKET:C36102

COURT OF APPEAL FOR ONTARIO

GOUDGE, MACPHERSON AND ARMSTRONG JJ.A.

BETWEEN:

David Burstein

BRENDA RENE MURRAY and DONNA MURRAY GLENN MURRAY and KELLY LYNN MURRAY

and Clive Elkin for the appellant

Plaintiffs (Respondents)

• and -

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO

Desmond H. Dixon and Sloan Mandel for the respondents

Defendant (Appellant)

Heard: September 4, 2002

On appeal from the judgment of Justice J. H. Jenkins of the Superior Court of Justice dated March 6, 2001.

GOUDGE J.A.:

[1] [1] This is an appeal by Her Majesty the Queen in right of the Province of Ontario (Ontario) from the judgment of Jenkins J. finding it liable in negligence to the respondents for the very serious injuries suffered by Brenda Rene Murray in a car accident on November 24, 1989. The trial judge found Ms. Murray liable for contributory negligence. He assessed her responsibility at 30% and that of Ontario at 70%. Damages had been agreed to before trial in an amount in excess of $5 million. After trial, the trial judge awarded costs to the respondents on a party and party basis up to December 7, 2000, and thereafter on a solicitor-client basis. He fixed costs at the agreed amounts of $203,519.50 for fees and $119,517.82 for disbursements, but in addition awarded the respondents a premium in respect of fees of $50,000 payable by the appellant.

[2] [2] The accident took place at approximately 7:35 a.m. on November 24, 1989. Ms. Murray was driving alone to school in her mother’s car. She had just turned on to Highway 48, which at that point runs parallel to the south shore of Lake Simcoe. The road was snow covered with slushy and icy sections. Visibility was poor to fair. Ms. Murray lost control of her car, slid into the oncoming lane, and ran head on into a pickup truck. Tragically, she was rendered a quadriplegic.

[3] [3] The appellant raises four issues on this appeal.

[4] [4] First, it argues that the trial judge erred in finding it liable for the accident. I disagree. The trial judge concluded that a highly dangerous situation of which the appellant was aware existed at the time and in the area of the highway where the accident occurred. He found that the truck driver working for the appellant had failed to apply the sand/salt mix to the highway as he had been instructed to do, and that, had he done so, the icy conditions of the highway would probably have been rectified prior to the accident. The appellant was responsible in law for this failure, which was clearly a cause of the accident.

[5] [5] There was ample evidence before the trial judge to support the findings of fact on which he rested his conclusion on liability. The appellant’s patrolman travelled the highway several hours before the accident noting the snow conditions and the below freezing temperatures. Based on his observations, he ordered sanding of the highway including the area where the accident took place. The truck assigned to this stretch left the yard at 6:22 a.m. and returned several minutes after the accident occurred. The driver, a subcontractor working for the province, had no memory of the day of the accident and could only rely on the business records for the day to say what had happened. Indeed, the trial judge found him a very unsatisfactory witness. On the other hand, a number of eye witnesses testified that there was no evidence of sand having been applied to that part of the highway prior to the accident. It was thus entirely open to the trial judge to conclude that the appellant, knowing of the danger, had failed in its obligation to have the highway sanded and that this was a cause of the accident.

[6] [6] Second, the appellant attacks the trial judge’s split of liability between Ontario and Ms. Murray. However, I see no basis for interfering with his conclusion in this respect. As Bastarache J. said in Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298 at 338, the apportionment of liability is primarily a matter within the province of the trial judge and appellate courts should not interfere unless there is demonstrable error in the trial judge’s appreciation of the facts or applicable legal principles. I see neither here.

[7] [7] The third ground of appeal is that the trial judge intervened in the conduct of the trial to such an extent that the image of judicial impartiality was destroyed.

[8] [8] The appellant catalogued a large number of occasions when the trial judge intervened in this trial during the giving of evidence. However, having reviewed the entire transcript of this five-day trial, it is my view that these interventions, even taken collectively, do not represent reversible error.

[9] [9] In argument, the appellant did not canvass all these occasions but focused on five or six which it presumably viewed as the most egregious.

[10] [10] The first of these provides a sample of the judicial conduct complained of. The appellant produced a set of photographs of the accident scene and proposed to cross-examine Ms. Murray’s father on them to elicit the state of the road surface that they disclosed. Before the cross-examination began, the trial judge interjected to try to determine when these photographs were taken in relation to the time of the accident. In my view this interjection was entirely justified. Before the trial judge could draw any conclusions about the road surface at the time of the accident (either directly from the photographs or as the photographs were interpreted by the witness) it was important for him to know when the photographs were taken.

[11] [11] The second intervention raised by the appellant in argument occurred when the respondents’ accident reconstruction expert was being cross-examined. When the appellant attempted to suggest to the witness that Mr. Murray’s evidence had been that there was no packing snow that morning, the trial judge intervened to criticize the question as being of no importance. In my view, while another judge might have let the question go by without comment, this expert witness’s recollection of the evidence of a prior witness was of little, if any, utility and the intervention was of no moment in this trial.

[12] [12] The same can be said of the other incidents relied on by the appellant, with one caveat. That caveat relates to judicial interventions that took place during the evidence in chief of the appellant’s district engineer, Mr. Aspinwall. At the commencement of the trial, Mr. Aspinwall was permitted to stay in the courtroom to assist defence counsel, despite an exclusion order. Defence counsel indicated that Mr. Aspinwall knew nothing about the accident, other than what he had learned in preparing for this case, and that he was not involved in the claim at all.

[13] [13] Defence counsel (neither Mr. Burstein nor Mr. Elkin), who was very senior and experienced, sought to elicit Mr. Aspinwall’s opinion about whether the appellant’s patrolman had followed correct procedures that morning. The witness was the patrolman’s superior; the patrolman was responsible for the sanding subcontractor. The trial judge prevented the question from being asked because the witness had not been qualified to give the opinion, because the patrolman had not yet given evidence, and because the question did not touch the issue of whether any sand was put down at all. Following the ruling, counsel attempted to come at the same evidence from several different directions, each time without success, but with obvious growing judicial irritation.

[14] [14] The evidence in chief continued with several somewhat testy exchanges and concluded with defence counsel seeking to ask the witness whether, in his view, the photographs of the accident scene showed sand on the road surface. Defence counsel had been permitted to ask the same question of the police officers who had previously given evidence. The trial judge also prevented this question from being asked, on the basis that Aspinwall had no special expertise to give such an opinion and, in any event, was an integral part of the defence team so that presumably his view would be of little weight.

[15] [15] The next day, when the trial resumed, the trial judge indicated that while his interventions the previous day were mainly to move the case along, from then on he was going to leave it up to opposing counsel to object when necessary rather than intervene on his own initiative.

[16] [16] In my view this episode, whether viewed alone or in the context of the other interventions, does not reach the level of interference in the conduct of the trial which destroys the image of judicial impartiality and deprives the court of jurisdiction: see Lennox v. Arbor Memorial Services Inc. (2001), 2001 4868 (ON CA), 56 O.R. (3d) 795 (C.A.) at para. 15. It is true that most trial judges would not have intervened to preclude these questions, particularly given that there had been no objection from opposing counsel. However, in each case it is possible to justify the rulings. Whether the patrolman followed procedures that morning is of little help in deciding the basic issue of whether the subcontractor did or did not sand the relevant section of Highway 48. The same can be said of the witness’s view of what the photographs showed, particularly where there was great uncertainty about when they were taken and where the trial judge had the photos to interpret for himself. In my opinion, neither ruling precluded the appellant from properly presenting its defence.

[17] [17] Undoubtedly, the atmosphere created by the testy exchanges between an experienced trial counsel and an experienced trial judge did nothing to enhance the image of the administration of justice. While the trial judge must bear considerable responsibility for this, taken together, his interventions were not so one-sided or without reason that a reasonable and fully informed observer would conclude that the trial judge had lost his judicial impartiality. Thus I conclude that this ground of appeal fails.

[18] [18] The fourth argument advanced by the appellant is that the trial judge erred in awarding a costs premium. I agree. It is true that courts have on occasion awarded a bonus or premium on top of a normal costs order. However, those occasions are rare and, in my view, require truly exceptional circumstances.

[19] [19] Here the trial judge focused very much on the financial risk undertaken by counsel for the respondents in taking the trial and what he viewed as the excellent result achieved.

[20] [20] While there is no doubt of the success achieved on behalf of the respondents at trial, the circumstances are, in my view, not so exceptional as to warrant a premium in respect of costs. By the time of trial the risks had been significantly reduced by the agreement on damages. Certainly the liability risk remained, but it was little different in kind at least from the liability risk that exists in many negligence cases. Moreover, in evaluating the result achieved, it must be remembered that the appellant was found only 70% responsible because of Ms. Murray’s contributory negligence – a very good, but not extraordinary result for the respondents. Hence this ground of appeal succeeds.

[21] [21] In summary, I would order that paragraph 7 of the judgment below be set aside, but that the appeal otherwise be dismissed. The respondents are entitled to their costs on a partial indemnity basis which I would fix at $70,000 inclusive of disbursements and G.S.T.

Released: November 8, 2002 “STG”

“S.T. Goudge J.A.”

“I agree J.C. MacPherson J.A.”

“I agree Robert Armstrong J.A.”