COURT OF APPEAL FOR ONTARIO

DATE: 2005-01-20

DOCKET: C40196

RE:

ADELMO MARRELLI, LILIANA MARRELLI, IDA MARRELLI, a minor under the age of 18 years, by her Litigation Guardian, Adelmo Marrelli, ALESSANDRO MARRELLI, a minor under the age of 18 years, by his Litigation Guardian, Adelmo Marrelli, and MARCELLO MARRELLI, a minor under the age of 18 years, by his Litigation Guardian, Adelmo Marrelli (Plaintiffs (Respondents)) – and – ANDREW DEATHE, CLEMENT DELUCA (Defendants (Appellants))

AND BETWEEN:

TRUDY BARTHORPE (Plaintiff (Respondent)) – and – ANDREW DEATHE and CLEMENT DELUCA (Defendants (Appellants))

BEFORE:

MACPHERSON, CRONK and LANG JJ.A.

COUNSEL:

Lee Samis and David A. DiLella for the appellant, Clement Deluca

Anil Varma and Eric D. Zeldin for the respondent, Andrew Deathe

HEARD & RELEASED ORALLY:

January 17, 2005

On appeal from the judgment of Justice John Jennings of the Superior Court of Justice, sitting with a jury, dated June 19, 2003.

E N D O R S E M E N T

[1] The appellant raises two grounds of appeal. First, he argues that the jury made its allocation of fault as between the two co-defendants based on particulars of negligence that are unsustainable in law. Second, he asserts that the opening address to the jury by trial counsel for the respondent Andrew Deathe was sufficiently prejudicial to the appellant that trial fairness was irreversibly compromised.

[2] We found it unnecessary to call upon the respondent with respect to the first ground of appeal. In our view, all three negligence particulars concerning the appellant identified by the jury fell within the broad ambit of the allegations of negligence set out in the pleadings and were open to the jury on the evidence led at trial.

[3] In connection with the second ground of appeal, the challenged opening address was clearly improper in numerous respects. In our view, left unremedied, it was both unfair and highly prejudicial to the appellant. However, the trial judge delivered a corrective instruction concerning the opening address in clear, blunt and detailed terms. This instruction unambiguously directed the jury to disregard counsel’s improper comments during the opening address and to base its decision solely on the evidence. The instruction left no uncertainty as to the proper way in which the jury was to approach its task: see Brochu v. Pond (2002), 2002 20883 (ON CA), 62 O.R. (3d) 722 (C.A.) at paras. 26 and 27. Import-antly, the instruction included a caution that the jury was to disregard the impugned comments about the actions of the appellant. The trial judge then reiterated that the jury was to base its findings on the evidence.

[4] In addition, given the way in which the trial subsequently unfolded and the nature of the evidence led by the parties, the jury could have been in no doubt that the central issue in the case was whether the appellant Deluca, in the manner of his driving, cut off the respondent Deathe.

[5] Although we might have exercised our discretion differently from the trial judge and ordered a mistrial, we are not persuaded that the trial judge exercised his discretion here on wrong principles. Accordingly, appellate intervention is not warranted and the appeal is dismissed. In the unique circumstances of this case, we award no costs of the appeal.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“S.E. Lang J.A.”