DATE: 20020124 DOCKET: C35242
COURT OF APPEAL FOR ONTARIO
RE:
SAMANTHA JACK, a minor by her Litigation Guardian, LEONA BLANCHE JACK and LEONA BLANCHE JACK (Plaintiffs/Respondents) – and – LORRAINE KIRKRUDE, CLARENCE GIBBONS, WEECHI-IT-WIN CHILD AND FAMILY SERVICES, LOUISE MORRISON and REGGIE MORRISON, Defendants (Appellants/Respondents)
BEFORE:
MORDEN, CATZMAN and ROSENBERG JJ.A.
COUNSEL:
Stephen J. Wojciechowski for Weechi-It-Te-Win Child and Family Services, Louise Morrison and Reggie Morrison, defendants (appellants)
Robert Somerleigh for the plaintiffs (respondents)
Alex Demeo for Lorraine Kirkrude and Clarence Gibbons, defendants (respondents)
HEARD:
January 16 and 17, 2002
RELEASED ORALLY:
January 17, 2002
On appeal from the judgment of Justice Stanley R. Kurisko dated October 24, 2000.
E N D O R S E M E N T
[1] The appellants, Weechi-It-Te-Win Child and Family Services, Louise Morrison and Reggie Morrison, appeal from a judgment of Justice Kurisko based on the verdict of a jury.
[2] Although the appellants made a submission to the effect that the defendant Lorraine Kirkrude was solely responsible for the accident, their basic argument was that the jury erred substantially in its apportionment of liability among the defendants. In this part of the appeal, Mr. Wojciechowski submitted that there was no basis on which Reggie Morrison could be found liable. We note that appellants’ counsel at trial, after all of the defence evidence had been given, did not make a motion for a non-suit on the basis that there was no evidence on which his clients could be found liable. In this regard, he informed us that the issue that he addressed before the jury was confined to the weight to be given to the evidence before them. We are satisfied that, on the evidence, it was open to the jury to find that Mr. Morrison had given permission for the young children to use the rock slide in the absence of proper supervision.
[3] The appellants have a particularly heavy burden. It is accepted that “a very strong and exceptional case” is required before an appellate court may interfere with a judge’s apportionment (Sparks v. Thomson, [1975] 1 S.C.R. 618 at 625-26) and the view has been expressed that this principle applies with greater force to an apportionment fixed by a jury (Deshane v. Deere & Co. (1993), 15 O.R. (3d) 225 (C.A.) at 238).
[4] The appellant’s basic challenge is that the jury seriously erred in finding Lorraine Kirkrude only ten percent responsible for the accident. Counsel have extensively reviewed with us portions of the evidence bearing on her role in the accident. Based on this evidence, we think that it was clearly open to the jury to find that, before and at the time of the accident Ms. Kirkrude was driving at a walking speed, three to four miles an hour (or even more slowly at the time of the accident), that her view of the rock slide was obstructed as she approached it, and that just before the accident she had looked to her right and seen nothing. She first saw the infant plaintiff as a purple blur virtually at the time of the accident when the plaintiff slid into the rear portion of her car on the right hand side. It could be considered to be a sudden, almost unavoidable, accident. Having regard to the standard of review to which we have referred, we cannot interfere with this conclusion.
[5] The next issue raised is the matter of the premium of $25,500 included in the costs awarded to the plaintiffs. It is carefully considered in the reasons of the trial judge ([2000] Carswell Ont. 4969 (S.C.J.)), and for the reasons which he gave, we agree with him that this was a proper case to award the premium. In this regard we say, with respect, that we think that he was right to follow Roberts v. Morana (2000), 49 O.R. (3d) 157 (C.A.) rather than Finlayson v. Roberts (2000), 136 O.A.C 271.
[6] Turning to a new point raised by the appellant at the opening of the appeal, we think that, in the interest of justice, we should grant leave for the appellants to amend the notice of appeal to argue that the judgment against them should be reduced by $10,921.44 on the basis of the judgment of this court in Sullivan Estate v. Bond (2001), 55 O.R. (3d) 97. Mr. Somerleigh fairly conceded that, if the amendment were allowed, there is no answer to this particular ground of appeal. We give effect to it.
[7] Leave to appeal costs is granted, the appeal is dismissed, with costs, subject to the reduction of the judgment against the appellants by $10,921.44.
[8] Having heard further submissions we fix the costs of the respondent/plaintiffs at $10,000 and of respondents Kirkrude and Gibbons at $7,500. We fix the plaintiff/respondents costs of the motion before the Registrar at $500.00.
“J.M. Morden J.A.”
“M.A. Catzman J.A.”
“M. Rosenberg J.A.”