CITATION: Schisler v. Connell, 2007 ONCA 3

DATE: 20070102

DOCKET: C42859

COURT OF APPEAL FOR ONTARIO

RE:

ROBERT MARL SCHISLER (Plaintiff/Respondent) – and – DALE P. CONNELL, TIMOTHY J. PENMAN, TRAVIS D. CLARK, DOUGLAS G. BOOTH, THOMAS R. CORBETT, BERNARD G. FLOHR, ERNIE E. COSSITT, JOHN DOE, FIONA GREENWAY, JODY WATSON AND CITY OF TORONTO CHIEF OF POLICE DAVID BOOTHBY (Defendants/Appellants)

BEFORE:

SHARPE, BLAIR and MACFARLAND JJ.A.

COUNSEL:

Kevin McGivney and Robin Squires

for the Dale Connell et al

Hedy Epstein

for Robert Schisler

HEARD & ENDORSED:

December 20, 2006

On appeal from the judgment of Justice Paul Rivard of the Superior Court of Justice dated December 1, 2004.

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

[1] The appellants raise three grounds.

(1) Reasonable & Probable Grounds

[2] We are satisfied that fairly read as a whole, the judge’s instructions to the jury properly set out the legal test for reasonable and probable grounds and the jury would have understood that that was the test to apply to the defendant’s conduct. While it perhaps would have been preferable had the trial judge reiterated that test in answer to the jury’s question regarding the definition of dangerous driving, when considered in light of the change as a whole, the absence of any objection from trial counsel and the specific questions posed to the jury, we are satisfied that the jury understood its task was to apply the reasonable and probable grounds test.

(2) Damages – Past & Future Income loss

[3] There was evidence before the jury to support the award for loss of past and future lost income. We see no basis for the submission that the verdict was unreasonable.

(3) Substantial Indemnity Costs

[4] We see no reason to interfere with the discretion of the trial judge to award substantial indemnity costs. He identified factors justifying the award including the failure to make timely disclosure of crucial documents and the jury’s acceptance of the “gay bashing” element. We do not agree that the finding of no malice for malicious persecution demonstrates the jury’s rejection of those allegation.

(4) Cross-Appeal

[5] Aggravated damages were not pleaded. There was no discovery on the issue and it was not addressed during the course of the trial except inadvertently by the trial judge during his charge. In these circumstances, there is no basis for us to interfere with the trial judge’s exercise of discretion requiring an amendment to the statement of claim.

Conclusion

[6] Accordingly, the appeal and the cross-appeal are dismissed. The respondents are entitled to costs of the appeal and the appellant to the costs of the cross-appeal. We fix the costs at $25,000 net to the respondents inclusive of disbursements and GST.