O'Neill v. The Standard Life Assurance Company, 2008 ONCA 408

CITATION: O'Neill v. The Standard Life Assurance Company, 2008 ONCA 408

DATE: 20080523

DOCKET: C46421

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., DOHERTY and GILLESE JJ.A.

BETWEEN:

HUGH O’NEILL

Plaintiff (Respondent)

and

THE STANDARD LIFE ASSURANCE COMPANY

Defendant (Appellant)

Elizabeth Bennett-Martin and Danielle Young for the appellant

Karl Arvai and Ryan Steiner for the respondent

Heard and orally released: May 20, 2008

On appeal from the judgment of Justice T.D. Little of the Superior Court of Justice, sitting with a jury, dated November 21, 2006.

ENDORSEMENT

The Appeal

[1] This is an appeal by the insurer (defendant) from a jury verdict and a cross-appeal by the insured (plaintiff).

[2] Insurer’s counsel alleges that plaintiff’s counsel at trial made numerous improper comments in the course of his closing address to the jury. Counsel submits that the trial judge should have discharged the jury in light of these comments, or expressly drew to the jury’s attention the improper comments, and told the jury to disregard those comments.

[3] In his discussion with counsel, the trial judge indicated that there were certain improper comments made by counsel, but he did not identify those comments. In his instructions, the trial judge chose not to expressly address the alleged improprieties in counsel’s address. The trial judge made it clear to the jury, however, that it must take all legal instructions exclusively from him and that the jury must base their factual findings on their own recollections of the evidence and not the recollections of counsel or the trial judge.

[4] We find it unnecessary to address individually the propriety of the many statements made by plaintiff’s counsel in his closing address that counsel for the insurer contends were improper. Assuming without deciding that plaintiff’s counsel did on occasion misstate the evidence and invite the jury to apply an improper test for the plaintiff’s entitlement to disability benefits, we are satisfied that these comments could not have prejudiced the insurer at trial.

[5] The jury had to decide two issues in this case:

• Was the plaintiff entitled to disability benefits under the policy?

• Was the plaintiff entitled to punitive damages?

[6] The jury decided that the plaintiff was entitled to the disability benefits and they decided the question of punitive damages against the plaintiff and in favour of the insurer.

[7] The trial judge correctly instructed the jury on the meaning of disability under the policy. He specifically told the jury to ignore anything counsel had said about the law applicable to the interpretation of the policy. No objection was made to the trial judge’s instructions in this regard by counsel for the insurer. After some deliberation, the jury returned with a question that suggests that the jury had honed in on the crucial question to be determined on the disability issue. The jury’s question does not suggest any confusion in the jury’s mind, but rather indicates to us that they had fixed on the proper issue. The trial judge heard submissions from counsel and repeated his initial instructions on the meaning of disability under the policy. Once again, no objection was taken to these instructions.

[8] Given the trial judge’s instructions, it is beyond doubt that the jury decided the question of disability on a proper instruction as to the applicable legal principles. The instruction on entitlement was accurate, complete and even-handed. In our view, the issue was a straightforward one both factually and legally. We are not convinced that anything counsel might have said that shaded the evidence or suggested a different test for disability could possibly have affected the jury’s consideration. We note that most of the alleged improper comments by counsel occurred in the part of his jury address in which he was dealing with the issue of punitive damages. Clearly, those comments, assuming they were improper, did not in any way prejudice the insurer as the jury found against punitive damages in this case.

[9] In the course of oral argument, counsel for the insurer submitted that the verdict was perverse in that no reasonable jury could have found in the plaintiff’s favour on the question of disability. As we understand it, counsel made this argument not as a stand alone ground of appeal but to demonstrate that the allegedly improper comments by counsel for the plaintiff must have misled and confused the jury and resulted in a verdict that could not be supported on any reasonable view of the evidence.

[10] We disagree with the premise of this submission. There was ample evidence from the plaintiff, his experts and, to some extent, from the insurer’s experts to give substance to the appellant’s disability claim. No doubt, there was also evidence that supported the insurer’s position on this issue. It was for the jury to assess the competing positions and the evidence relied on by the parties in support of their position. Nothing in the result reached by the jury suggests that they were improperly influenced by anything counsel said.

[11] The appeal is dismissed.

The Cross-Appeal

[12] On the cross-appeal, the plaintiff contends that the trial judge erred in: (1) his charge to the jury in respect of punitive damages; (2) his calculation of prejudgment interest; (3) using the language suggested by the insurer in the formal judgment; and (4) the costs awards.

[13] We do not agree that the trial judge erred in any of these respects and we did not call on the insurer to respond to the cross-appeal.

[14] We see no error in the charge to the jury in respect of punitive damages. It was consistent with the now well established legal principles. On the totality of the evidence, the plaintiff did not have a strong case for punitive damages. It was open to the jury to refuse to award such damages on this record.

[15] Insofar as prejudgment interest is concerned, the plaintiff argues that the trial judge was bound to apply the presumptive 6 percent rate of prejudgment interest. We disagree. The order made by the trial judge reflects the fact that the amounts owing to the plaintiff were payable on a periodic basis and that the interest rates fluctuated during that period. There is no basis to interfere with the trial judge’s exercise of his discretion.

[16] As to the form of judgment, the plaintiff submits that the approved form would prevent him from pursuing a claim for disability benefits beyond November 21, 2006, the date referred to in the judgment. We do not read the judgment that way. Claims referable to the period beyond November 21, 2006 will have to be determined on their own merits, if and when they arise.

[17] Insofar as the cross-appeal relates to the question of costs, we begin by noting that the plaintiff did not seek leave to appeal costs. There is no basis upon which leave should be granted. In any event, we see no error in the trial judge’s exercise of his discretion. He was fully justified in deciding the various issues relating to costs in the light of the atmosphere that existed between counsel and their very adversarial conduct throughout the trial. This includes the trial judge’s determination that the plaintiff’s rule 49 offer was uncertain because it failed to directly and expressly advert to the claim for declaratory relief.

[18] The cross-appeal is dismissed.

[19] No order as to costs of the appeal or cross-appeal.

“D. O’Connor A.C.J.O.”

“Doherty J.A.”

“E.E. Gillese J.A.”