COURT OF APPEAL FOR ONTARIO

DATE: 20050321

DOCKET: C38114

RE:

TAMMY BYERS, by her Litigation Guardian DAVID BYERS, GAIL BYERS and the said DAVID BYERS (Plaintiffs (Appellants)) – and – PENTEX PRINT MASTER INDUSTRIES INC., DOSEY GEORGE BLACK, and CANADIAN PROFESSIONAL ENGRAVERS ASSOCIATION INC. (Defendants (Respondents))

BEFORE:

MACPHERSON AND CRONK JJ.A., AND WHALEN J. (ad hoc)

COUNSEL:

Wayne P. Cipollone

for the appellants

A. Peter Trebuss

for Pentex Print Master Industries Inc. and Dosey George Black

David Zuber

for Canadian Professional Engravers Association Inc.

HEARD & RELEASED ORALLY:

March 17, 2005

On appeal from the judgment of Justice H. E. Sachs of the Superior Court of Justice, sitting with a jury, dated April 10, 2002.

E N D O R S E M E N T

[1] The appellants raise five main grounds of appeal in this case. They argue that: (i) the trial judge erred by declining to order production at trial by the respondents of relevant documents prior to the close of the appellants’ case; (ii) the questions left for the jury’s consideration were improper and prejudicial to the appellants; (iii) the trial judge erred by failing to recharge the jury, before it reached its verdict, in accordance with objections made by the appellants’ counsel to the jury charge; (iv) the charge itself was flawed and unfair to the appellants in several respects; and (v) the jury verdict was unreasonable.

[2] We did not find it necessary to hear from the respondents in respect of any of these issues.

(1) Production Order

[3] We are not persuaded that the trial judge erred in the timing of her production order at trial. The appellants were not entitled to such an order absent a showing by them of the relevance of the requested documents. When this occurred, production was ordered. Thereafter, the appellants did not seek an adjournment of the trial or an order permitting them to re-open their case or to recall any of their witnesses. As well, the appellants had the benefit of the use of the documents throughout their cross-examinations of the respondents’ witnesses.

(2) Questions Left to the Jury

[4] The questions left for the jury’s consideration were formulated by the trial judge, after receiving submissions from counsel for the parties. In the context of the matters at issue in this action, the questions were unobjectionable and designed to assist the jury in focusing its attention on the central issues and the appellants’ main theory of liability. This was entirely proper.

(3) and (4) Jury Charge and Recharge Request

[5] The appellants’ complaints regarding the jury charge and the trial judge’s failure to recharge the jury are unsustainable.

[6] The appellants’ principal theory of liability against the respondents was that Tammy Byers’ tragically severe asthmatic attack was caused by her exposure to hardeners associated with the ink mixtures utilized by the respondent Pentex Print Master Industries Inc. (“Pentex”) at a trade show that Ms. Byers attended. To succeed at trial on this theory, the appellants were obliged to establish that: (i) the hardeners were present and in use on the day in question; and (ii) Ms. Byers was pre-sensitized to the hardeners, leaving her vulnerable upon re-exposure to a serious and potentially fatal asthmatic attack. By its answer to the first question posed for its consideration, the jury found that the hardeners were not present in the Pentex booth at the trade show. On this basis, the jury rejected any liability on the part of the respondents. It follows that any alleged deficiencies in the jury charge are irrelevant. In any event, however, in our opinion, the charge in this case was thorough, fair and balanced.

[7] In addition, with respect to the challenge of the trial judge’s failure to recharge the jury, we note that the trial judge did not accept the appellants’ submissions concerning the need for a recharge. The transcript indicates that the trial judge was about to deliver this ruling on the request for a recharge, when it became known that the jury had reached a verdict.

(5) Unreasonable Verdict

[8] Finally, we do not agree that the high test for appellate intervention with a jury’s findings in a civil negligence proceeding has been met in this case: see Mizzi v. Hopkins (2003), 64 O.R. (3d) 365 (C.A.). To the contrary, the jury’s verdict is supported by the evidential record.

(6) Disposition

[9] For these reasons, the appeal is dismissed without costs.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“W.L. Whalen J. (ad hoc)”