DATE: 20060306

DOCKET: C42777

COURT OF APPEAL FOR ONTARIO

RE:

DEBBIE LOSIER, MAURIL LOSIER, MARGARET MACFARLANE, ALEX MACFARLANE and CHELSEY ANN LOSIER and SAMANTHA LOSIER, by their Litigation Guardian, MAUREL LOSIER (Plantiffs) – and – NIKITA SMIRNOV (Respondent), EVANS FORD LINCOLN INC., o/a Big M Car & Truck Leasing, also known as Evans Lincoln Mercury Sales, MARIE R. SARDINHA (Appellant) and LIBERTY MUTUAL INSURANCE COMPANY (Defendants)

BEFORE:

McMURTRY C.J.O., FELDMAN and LANG JJ.A.

COUNSEL:

Chris Blom

for the appellant

Sheldon Gilbert Q.C.

for the respondent

HEARD & ENDORSED:

March 3, 2006

On appeal from the judgment of Mr. Justice Lissaman of the Ontario Court of Justice dated November 16, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, the instruction given to the jury by the trial judge were inadequate and to some extent in error.

[2] The law in Ontario has long recognized that there is a very heavy onus on a driver making a left hand turn into the path of an approaching vehicle. In this case the appellants approaching vehicle would have been within a few feet of the respondent, who on his own evidence, at no time saw the approaching vehicle, turned left into the rear portion of that vehicle as it proceeded through the intersection.

[3] While the trial judge instructed the jury with respect to the relevant left hand turn section of the Highway Traffic Act he spoke of “competing onuses” in relation to the duties of the two drivers, which probably left the jury with the impression that there were equal duties of care or obligation on the part of both drivers, when the much heavier onus was on the driver making the left hand turn. If the trial judge had read the standard jury charge, this error could have been avoided.

[4] In our opinion, the trial judge also failed to adequately review the evidence with the jury and in this context, it was unhelpful of him to express his personal opinions with respect to the possible negligence of the appellant.

[5] In our view, the trial judges inadequate instructions probably caused a miscarriage of justice in this case.

[6] In conclusion, the appeal is allowed and a new trial is ordered. The appellant is entitled to her costs of the appeal fixed in the amount of $15,000.00 plus G.S.T. and disbursements.

[7] The costs of the first trial are reserved to be determined by the trial judge presiding at the new trial.