Court File and Parties

CITATION: McMahon v. Scott, 2008 ONCA 118

DATE: 20080219

DOCKET: C44501

COURT OF APPEAL FOR ONTARIO

LANG, MACFARLAND and ROULEAU JJ.A.

BETWEEN:

CODY McMAHON, JOHN O. McMAHON and JOHN HIRAM BETTES (Plaintiffs/Respondents)

and

WAYNE J. SCOTT, BRENDA PANDER-SCOTT, AILEEN PANDER, JOHN PANDER and 564105 ONTARIO LIMITED (Defendants/Appellants)

Counsel: Geoffrey D.E. Adair, Q.C. and M. Jordan for the appellants Michael J. Pretsell for the respondents Cody McMahon and John O. McMahon Alan A. Farrer for the respondent John Hiram Bettes

Heard & released orally: February 12, 2008

On appeal from the judgment of Justice Myrna L. Lack of the Superior Court of Justice dated October 26, 2005.

ENDORSEMENT

[1] This is an appeal from a jury verdict that awarded the respondents Cody McMahon and John O. McMahon damages for malicious prosecution and the appellant, Wayne Scott, $1.00 damages for assault. The appellants own a trailer park and the respondents are nearby cottagers who use a disputed right of way over the trailer park property. The appellants reported incidents of alleged assaults by the respondents to the police, who laid criminal charges. The respondents were acquitted and brought this action for malicious prosecution alleging, in essence, that the appellants, particularly, Wayne Scott lied to the police about the incidents and his injuries. The jury trial occupied twelve days. The trial judge charged and recharged the jury for more than four hours. The length of the charge was dictated by the complexity of the issues and the factual background of the allegations. The jury deliberated for more than a day before arriving at its verdict. The appellants appeal on several grounds.

[2] First, the appellants argue that the jury verdict was unreasonable regarding the Cody McMahon (Cody) allegations. We do not agree. There was a body of evidence from which it was open to the jury to conclude that the appellants lied to the police when they alleged Cody ran over Wayne Scott’s toe with a car. The evidence included that of Cody that he did not back over Mr. Scott’s foot and the physical evidence regarding whether it was possible for Cody to have reversed the car over Mr. Scott’s foot, particularly, if the jury accepted that he backed straight up after the confrontation.

[3] The appellants argue that the jury’s verdict was unreasonable despite this evidence in light of other evidence including an audio-tape recorded by Wayne Scott at the time of the incident. However, the audio-tape was not conclusive about what happened because its contents were open to interpretation and were challenged at trial. The respondents’ position at trial was that Wayne Scott’s audible expression of pain on the audio-tape, immediately following the sound of Cody’s car engine, was faked as was his physical action of hopping up and down as soon as Cody reversed his car. In light of the evidence at trial to the effect that the appellants had set up the respondents, it was open to the jury to reject the audio-tape evidence.

[4] There was also evidence that Wayne Scott’s toe was fractured and evidence of a tire mark on the white shoe Wayne Scott claimed to be wearing at the time of the incident. However, particularly in the history of the circumstances and the allegations that the appellants set-up the respondents, it was open to the jury to conclude that the toe was not fractured by any action on the part of Cody McMahon.

[5] The determination of the Cody McMahon allegations largely depended upon the jury’s credibility and factual findings. The jury verdict establishes that the jury did not find Mr. Scott credible, but found Cody McMahon credible. In these circumstances, it cannot be said that no jury properly instructed and acting judicially could have reached the verdict arrived at by this jury. Accordingly, this ground of appeal does not succeed.

[6] Second, the appellants argue that there was no evidence to support the jury’s finding regarding the Jake McMahon (Jake) altercation and argue both that the trial judge ought to have allowed their motion for a directed verdict and, in any event, that there was no evidence to support the jury’s conclusion that Jake did not assault Wayne Scott. The appellants argue that in light of indisputable evidence of an assault, they could not be liable for malicious prosecution.

[7] In essence, it was the respondents’ position, given the long history of the circumstances surrounding the cottagers’ use of the right of way and the outstanding injunction, that Wayne Scott was attempting to set Jake up to involve him in an altercation for the purpose of generating grounds to prevent his continued use of the right of way. It was in this context that the jury concluded that Wayne Scott consented to his physical removal from the right of way and then falsely reported an assault to the police.

[8] The judge fairly put the issue to the jury on more than one occasion. In the charge proper, the trial judge put the issue of the set up this way:

Was he at that point, when Mr. McMahon arrived, languishing on the road, or was he laying in wait to set Mr. McMahon up to assault him so that through charging him with assault he could stop him using the road? You will want to consider why the tape recorder was going. Mr. Scott said that he activated it before the meeting with Cody. He said he wore it to protect himself because of problems in the past and had done that many times.

[9] In her recharge, which was approved in advance by both counsel, the trial judge gave this instruction:

There is no issue, as I said, that Mr. McMahon applied force. The issue is the extent of it. When you determine who you believe about the extent of the force, you will then decide if the nature or extent of the force was something that by his actions Mr. Scott consented to, or did it go beyond anything called for by Mr. Scott’s actions.

Now, in a nutshell, was Mr. Scott inviting Mr. McMahon to push him aside? If Mr. Scott wasn’t doing that, then there is no consent. If there is no consent then Mr. Scott’s action for damages must succeed.

If you find that Mr. Scott was really inviting Mr. McMahon to push him aside, but Mr. McMahon’s actions went beyond what was necessary to push him aside, then, again, Mr. Scott’s claim for damages must succeed.

If you find Mr. Scott was really inviting Mr. McMahon to push him aside, and that is all that Mr. McMahon did, in other words if you accept Mr. McMahon’s version of events, then Mr. Scott’s claim for damages for assault fails. Okay?

[10] We see no error in these instructions in the unusual circumstances of this case and would not give effect to this ground of appeal.

[11] Third, the appellants challenge the jury charge regarding the applicable legal principles and the inclusion of what the appellants refer to as “numerous marginal or irrelevant factual issues”. However, these arguments are not supported by the reading of the jury charge as a whole.

[12] Furthermore, in response to concerns raised by the appellants, the trial judge re-charged the jury regarding the appellants’ position to be certain that the jury was focussed on the important issues that were determinative of the claims. Any concern the appellants had that the complexity of the issues may have distracted the jury from the proper focus were corrected in the recharge in the manner requested and approved by counsel.

[13] Notably, the trial counsel told the trial judge that she correctly charged on the legal principles and the charge on the facts was both fair and balanced. We see no flaw in the trial judge’s instructions to the jury about the issue of consent, which was not premised on either the outstanding injunction regarding the interference with the right of way or any improper reference to honest belief. Having been properly instructed, the central question of consent was primarily a factual one for the jury, which it was required to consider in the context of all the circumstances. We see no reviewable error in the charge, including in any of the specific examples listed in the appellants’ factum.

[14] Finally, the appellants argue that the $1 damage assessment regarding the separate assault by Mr. Bettes was perverse because counsel and the trial judge all proposed to the jury, in the event of liability, that a reasonable range for damages would be between $5,000 and $10,000. However, the jury’s question, which we will discuss later in these reasons, clearly indicated that it determined the assault was “minor” and rejected as fabricated Mr. Scott’s evidence that he suffered a severe concussion rendering him unconscious and leaving him with ongoing neurological problems. On the other hand, there was objective evidence that Mr. Scott suffered a superficial and transient abrasion to his cornea that would heal within twenty-four to forty-eight hours. While another jury may have come to a different result on the basis of this abrasion, it was open to this jury to conclude that the appellant was entitled to no more than nominal damages.

[15] Accordingly, the appeal is dismissed.

[16] The cross-appeal relates to the jury’s verdict that Mr. Bettes assaulted Mr. Scott and its dismissal of Mr. Bettes’ claim against Mr. Scott for malicious prosecution. It raises two issues. First, Mr. Bettes argues the verdict of an assault was unreasonable in light of the contents of the question posed by the jury and second, that the trial judge ought to have instructed the jury that the finding of an assault did not necessarily lead to the conclusion that the prosecution was not malicious. In the course of deliberations, the jury asked the following question:

We the jury, feel in question 14 although there was an assault committed by John Bettes, this was part of a set up to get John Bettes to do or say something for a conviction on the camera. We feel that the assault was a minor accident. We would like to find a party responsible for the legal expenses incurred by Mr. John Bettes in the amount of $25000 special damages.

[17] We do not agree that this question is determinative of whether Mr. Bettes’ conduct was an accident and not an assault. In response to the jury’s question, the trial judge properly instructed the jury that it could not award costs as special damages and the jury resumed its deliberations. The next day the jury returned with its verdict that Mr. Bettes’ actions were an assault, but in accordance with their earlier characterization of it as “minor”, the jury limited Mr. Scott’s damages to $1. The jury verdict also resulted in the dismissal of Mr. Bettes’ malicious prosecution claim.

[18] On the first ground of unreasonable verdict, there was evidence capable of supporting the finding of an assault and, as discussed earlier, evidence of an injury. It cannot be said that Mr. Bettes has met the high standard of review necessary to establish the verdict was unreasonable.

[19] On the second ground, Mr. Bettes argues that further instruction was required after the above question to tell the jury that if the assault was a minor accident, there would still be no evidence to justify the charge for the bodily harm aspect of the assault charge. In our view, the question did not require a recharge on this issue because the jury must have found that there was some degree of bodily harm in the form of the corneal abrasion. It follows that the fact of the abrasion could form the basis for Mr. Scott’s report to the police that he had been injured and, hence, led to the charge of assault causing bodily harm. In any event, apparently no request was made to the trial judge for further instruction either on this basis or on the basis that the jury could conclude that the prosecution was malicious irrespective of a finding of assault. Accordingly, we would not give effect to the cross-appeal.

[20] Both the appeal and the cross-appeal are dismissed. Costs are payable by the appellants to the McMahon respondents in the amount of $10,000 plus G.S.T. The success of the respondent Bettes on the appeal and cross-appeal was mixed. There will be no order as to costs for or against Bettes in respect of the appeal or the cross-appeal.

“S.E. Lang J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A.”