DATE: 20050309

DOCKET: C41851

COURT OF APPEAL FOR ONTARIO

RE:

WAYNE LYMAN COOPER (Plaintiff (Appellant)) – and – HILL REAL ESTATE LTD. and HILL TRANSPORT INTERNATIONAL INC. (Defendants (Respondents))

BEFORE:

SIMMONS, GILLESE and LAFORME JJ.A.

COUNSEL:

Barry Laushway and Scott Laushway

for the appellant

David Bierstone

for the respondent

HEARD & RELEASED ORALLY:

March 4, 2005

On appeal from the judgment of Justice G.T. Roccamo of the Superior Court of Justice, sitting with a jury, dated April 30, 2004.

E N D O R S E M E N T

[1] This is an appeal from a judgment and jury’s verdict that the defendant was not liable for the injuries suffered by the plaintiff when he fell on the defendant’s property. The appellant submits that the jury’s verdict was perverse in that it was completely unsupported by the evidence at trial. In this regard, the appellant makes two basic submissions: (i) that because of comments made by defence counsel, the jury was inflamed and allowed this to unfairly prejudice them in their verdict; and (ii) the evidence at trial established that the defendants did nothing to remedy the conditions and thereby failed to meet the standard of care required of them in law.

[2] Counsel fairly concedes that the issue of inflammatory comments is not a discrete ground of appeal, but rather it can amount to a reason – when considered along with others – to explain why the jury rendered the perverse verdict it did. We disagree.

[3] Even if one were to conclude that the closing remarks of defence counsel were inflammatory, the trial judge adequately corrected this in her charge to the jury. It is important to note that plaintiff’s counsel did not object to the trial judge’s charge in this regard at the time. The alleged inflammatory remarks, if any, did not render the trial unfair and could not have misdirected the jury.

[4] Regarding the evidence at trial, it is again important to note that plaintiff’s counsel took no objection to the trial judge’s review of the evidence to the jury. In that charge, the trial judge comprehensively reviewed the evidence and fairly instructed the jury on the positions of counsel in respect of it. In summary, on a plain reading of the proceedings taken together with the trial judge’s instructions, there was evidence upon which the jury could rely upon to reach the verdict it did.

[5] For these reasons, we cannot conclude that the jury committed any palpable and overriding error in reaching its verdict.

[6] The appeal is therefore dismissed.

[7] In light of our disposition, the cross-appeal is dismissed as abandoned. Costs of the appeal to the respondents on a partial indemnity basis fixed at $7,500 inclusive of GST and disbursements.

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

“H. S. LaForme J.A.”