DATE: 20020926 DOCKET: C32681

COURT OF APPEAL FOR ONTARIO

RE: WILMA MILLS & WILMA MILLS as Litigation Guardian for JUSTIN MILLS (Plaintiffs/Appellant, Wilma Mills) v. TROY RAYMOND, METROPOLITAN SEPARATE SCHOOL BOARD, RICHARD GREER, JOANNE STEWART and PETER BECKER (Defendants/Respondents)

BEFORE: DOHERTY, CHARRON & SIMMONS JJ.A.

COUNSEL: G. Peter Abrahams for the appellant

Grant R. Dow for the respondent, Troy Raymond

Noona Barlow for the respondent, Metropolitan Separate School Board

HEARD: September 20, 2002

ORALLY RELEASED: September 20, 2002

On appeal from the judgment entered by Justice David G. Stinson, sitting with a jury, on July 16, 1999.

ENDORSEMENT

[1] The jury’s initial response to one of the questions under the “Apportionment of Fault” part of the jury questionnaire was potentially inconsistent with the earlier answers given by the jury which had clearly negated the liability of the defendant, Raymond. Mrs. Mills took the position that a mistrial should be declared and counsel for the defendants took the position that the jury should be asked to clarify its answer. The trial judge decided to ask for clarification and re-instructed the jury. The jury amended the answer which was potentially the source of some confusion and thereby removed any possible ambiguity.

[2] We see no error in the procedure followed by the trial judge and, in our view, that procedure clearly removed the possible inconsistency in the initial answers given by the jury.

[3] In any event, even on the basis of the initial answers given by the jury, the plaintiff’s action had to fail. The jury found that Raymond acted in self defence and that the fight was consensual. In addition, the jury found that the plaintiff, Mrs. Mills, had suffered no damages. These findings could lead to no result other than the dismissal of the claim.

[4] It is also argued that the jury’s findings of fact were not supported by the evidence. The defendant, Raymond, testified and the alleged victim, Justin Mills, did not testify. The findings of fact made by the jury find support in the evidence of Raymond and, in our view, cannot be described as contrary to the evidence.

[5] Having regard to the provisions of the Young Offenders Act which deem persons not to have been convicted under that Act in certain circumstances, we see no error in the trial judge’s ruling with respect to the use that the plaintiff could, and could not make of the transcripts of the proceedings in the Young Offenders Court arising out of the same event.

[6] The instructions to the jury were adequate. We see no misdirection with respect to contributory negligence or the potential liability of the School Board defendants.

[7] The appellant also seeks leave to appeal costs. In our view, the costs order made by the trial judge was an appropriate one. It must, of course, be borne in mind that costs orders are discretionary and deference must be shown to the awards made at trial. We would grant leave to appeal costs, but would not interfere with the costs award fashioned by the trial judge.

[8] In the result, appeal is dismissed.

“Doherty J.A.”

“Louise Charron J.A.”

“Janet Simmons J.A.”