CITATION: Senger v. Lachman, 2008 ONCA 323
DATE: 20080501
DOCKET: C44628
COURT OF APPEAL FOR ONTARIO
ROULEAU, WATT and EPSTEIN JJ.A.
BETWEEN:
COLLEEN SENGER, KEVIN COOK, KATHLEEN BUSEY, BRIAN BUSEY, MICHAEL COOK, by his litigation guardian Colleen Senger, BRADLEY COOK, by his litigation guardian Colleen Senger
Plaintiffs (Appellant)
and
SATROHAN LACHMAN and PARBATEE LACHMAN
Defendants (Respondents)
Anne E. Posno and Farah Malik for the appellant
Wilfrid Menninga for the respondents
Heard: February 20, 2008
On appeal from the judgment of Justice Gordon Sedgwick of the Superior Court of Justice dated November 30, 2005.
ROULEAU J.A.:
[1] The appellant’s fifteen year old son died when the bicycle he was riding collided with an automobile on a country highway near Consecon, Ontario. The respondents, Mr. Satrohan Lachman and Mrs. Parbatee Lachman are, respectively, the driver and owner of the automobile. After a fifteen-day trial, this action was dismissed on the basis of the jury’s conclusion that the accident was not caused by any negligence on the part of the respondents.
[2] On appeal, the appellant argues that the trial judge’s instructions to the jury contained several errors. The appellant asks that the judgment be set aside and a new trial ordered on the issue of liability.
[3] For the reasons that follow, I have concluded that the errors in the trial judge’s instructions to the jury on the onus of proof would have confused the jury as to the state of the law. This was central to the question to be decided by the jury and, therefore, a new trial is necessary.
Facts
[4] On July 11, 1998, Shawn Busey, the appellant’s son, was riding his bicycle north on Loyalist Parkway, a curved two lane highway near Consecon, Ontario. The highway has a posted speed limit of 80 kilometres per hour and a gravel shoulder. Mr. Lachman was also driving north on the highway with his wife. At approximately 11:25 a.m., Shawn’s bicycle collided with the Lachman vehicle. Shawn was killed as a result of the collision.
[5] Mr. Lachman testified that he was some distance away from Shawn when he first observed him riding on the right side of the northbound lane. As he approached, he observed Shawn weaving and swerving back and forth on his bicycle. Mr. Lachman decreased his speed to approximately 60 kilometres per hour and pulled to the left to pass. Mr. Lachman did not sound his horn and as he reached Shawn, he observed him make a sharp left turn to cross the highway. The evidence of Mr. Lachman and of Norman Storms, an independent witness, who was driving his vehicle south on the same highway, was that the bicycle essentially drove into the side of the motor vehicle.
[6] Mr. Lachman testified that the events happened so quickly that he did not have time to react. A professional engineer testified about “perception reaction time” and concluded that, when the cyclist turned suddenly to the left, “Mr. Lachman had no time to react or take evasive action.”
[7] Mr. Storms testified that, had Mr. Lachman not collided with Shawn, the direction of the bicycle was such that it would have taken Shawn directly into the path of his southbound vehicle.
Discussion
[8] This was a relatively straightforward case centered on the issue of liability. Although the appellant raises several grounds of appeal, the principal challenge is to the portion of the charge dealing with the onus of proof. On the facts of this case, that portion of the charge was critical. It was essential that it be properly understood by the jury.
[9] About midway through his charge to the jury, the trial judge explained the burden of proof that applied in this case. As explained by the trial judge, because Mr. Lachman was operating an automobile and Shawn was riding a bicycle at the time of the collision, subsection 193(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 applied. Section 193(1) reads as follows:
When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.
The trial judge explained the effect of s. 193(1) as follows:
So it is the law of our province that where a motorist collides with a bicyclist or a pedestrian, on a highway or where his automobile causes injury, that motorist is presumed to be at fault and must satisfy you, the Jury, by a reasonable preponderance of evidence that he was not at fault or negligent.
[10] The trial judge later read to the jury the first question that they would be called upon to answer. The question was phrased as follows:
Has the defendant, Satrohan Lachman, satisfied you that the accident was not caused by any negligence or improper conduct on his part? Answer “Yes” or “No”.
[11] After reading the question to the jury, the trial judge then repeated, in a different way, that the onus was on the respondents to satisfy the jury on the preponderance of evidence that the driver of the automobile was not negligent.
[12] Unfortunately, later in his charge, while he was explaining the standard of care that applies to a driver of a motor vehicle, the trial judge contradicted and confused his earlier explanation of the onus. In this portion of the charge, he started with the statement that the driver is “not asked to maintain a standard of perfection or to take extravagant precautions. The mere fact that an accident has happened and damage has been sustained, does not permit you to draw an inference that the accident was caused by somebody’s negligence.” Such direction represents a clear departure from the onus of proof established under s. 193(1).
[13] It is likely that the trial judge simply misspoke at this point in his charge. The instruction, however, is clearly wrong. The trial judge compounded the error when, later in his charge, he set out examples of what might constitute negligence. Specifically, he dealt with the duty on the driver of the motor vehicle under the Highway Traffic Act to sound the horn “whenever it is reasonably necessary to notify pedestrians or others, of his vehicle’s approach.” He went on to state, “[i]f you are satisfied that the failure of Mr. Lachman to sound the horn was an effective cause or a proximate cause of the accident, then you should find this omission an act of negligence.” This explanation to the jury may well have furthered the erroneous view that a specific act of negligence had to be proven by the appellant.
[14] Another portion of the charge may also have served to reinforce the incorrect impression that the onus was on the appellant to prove that Mr. Lachman was negligent. Prior to his instruction on onus of proof, the trial judge dealt with the damages claimed by Shawn’s mother and explained proximate cause to the jury. In doing so, he stated “the evidence must not only establish that the defendant, Satrohan Lachman, was negligent but also that his negligence was the proximate cause of her injuries or damages.” Again, this may well have confused the jury as to the presumption of negligence applicable in this case. How this distinction could be reconciled with his instruction concerning subsection 193(1) of the Highway Traffic Act was not explained by the trial judge when he subsequently provided the instruction on the onus of proof, thereby serving to exacerbate the jury’s confusion on this critical legal issue.
[15] Each of these problems, taken individually, may not have been sufficient to justify ordering a new trial given that, in the section dealing with the burden of proof, the trial judge had correctly instructed the jury on the Highway Traffic Act provision respecting onus, and had correctly described its impact. However, when these three portions of the charge are viewed together and the charge is read as a whole, I am not satisfied that the jury would have clearly understood that the burden of proof remained on the respondents throughout the trial, and that they (the jury) did not have to identify a specific breach of the duty of care (such as the failure to sound the horn) as the cause of the accident. It was up to the respondents to satisfy the jury that, upon the whole of the evidence, Mr. Lachman was not negligent: Bronson v. Evans and Evans, 1943 CanLII 75 (ON CA), [1943] O.R. 248 at 257 (C.A.).
[16] The respondents argued that the failure of the appellant’s trial counsel to object to these portions of the charge should be fatal to the appeal. I disagree. As set out by this court in Gellie v. Naylor (1986), 1986 CanLII 2673 (ON CA), 55 O.R. (2d) 400 at 403 (C.A.), the failure to object “does not preclude the appellant from relying on the misdirection, although the appellant’s contention would have been reinforced by a timely and appropriate objection.” Where, as here, the error bears directly on the jury’s central task the failure to object will not be fatal: Mizzi v. Hopkins (2003), 2003 CanLII 52145 (ON CA), 64 O.R. (3d) 365 at para. 50 (C.A.).
The Appropriate Remedy
[17] The parties agree as to the appropriate standard of review that applies in appeals from civil jury verdicts. Pursuant to s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, a new trial shall not be directed unless some “substantial wrong” or “miscarriage of justice” has occurred. In a jury trial, the trial judge has a duty to provide the jury with a clear explanation of the law to allow the jury to discharge its responsibility as judge of the facts. A substantial wrong, therefore, may include a charge that leaves the jury with a misapprehension of the applicable law, is materially deficient or fails to clearly state the law on a critical issue. Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 2006 CanLII 12284 (ON CA), 267 D.L.R. (4th) 690 at paras. 75 and 76 (Ont. C.A.).
[18] Onus of proof was critical to the jury’s assessment of liability in this case. A review of the trial judge’s charge on this issue makes it clear that the direction provided was both contradictory and confusing. There is a serious risk that the charge left the jury with a misapprehension of the applicable legal principles respecting the onus of proof. This makes the charge materially deficient and constitutes a substantial wrong. In my view, a new trial on the issue of liability should therefore be ordered.
Disposition
[19] In conclusion, I would set aside the judgment and would order a new trial on the issue of liability. I would award the appellant costs of the appeal fixed at $25,000 inclusive of GST and disbursements.
“Paul Rouleau J.A.”
“I agree David Watt J.A.”
“I agree G. Epstein J.A.”
RELEASED: May 01, 2008