CITATION: Walsh v. 1124660 Ontario Limited, 2008 ONCA 431
DATE: 20080530
DOCKET: C45641
COURT OF APPEAL FOR ONTARIO
DOHERTY, MOLDAVER and CRONK JJ.A.
BETWEEN:
CHARLENE WALSH
Appellant (Plaintiff)
and
1124660 ONTARIO LIMITED, BRIGITTE REGENSCHEIT, P.C. ANDREW MAY, P.C. JIM STRAVRAKIS
Respondents (Defendants)
Ernest J. Guiste for the appellant
David Shiller for the respondents, 1124660 Ontario Limited and Regenscheit
Diana W. Dimmer and Mark Siboni for the respondents, May and Stravrakis
Heard: May 14 and 16, 2008
On appeal from the judgment of Justice Dennis Lane of the Superior Court of Justice, sitting with a jury, dated June 2, 2006.
ENDORSEMENT OF MAY 14, 2008
[1] Counsel for the appellant requests an adjournment of this appeal. He advances two reasons. First, counsel advises that a certain exhibit at trial – a videotape – is not available on the appeal. He submits that this exhibit is central to the appeal. The respondents argue that the appeal can proceed using available copies of this exhibit and that counsel for the appellant was less than diligent in ensuring that the exhibit would be available for the appeal if, as he now claims, it is integral to the appeal.
[2] We are satisfied that the appeal, which has already been adjourned once, can proceed without the exhibit. Copies of the exhibit are available for use on the appeal should counsel be so advised. If, at the end of argument, we are satisfied that the actual exhibit is needed to fully understand the issues raised on the appeal, we can adjourn the appeal and provide for further argument upon obtaining the exhibit. Counsel, of course, are responsible for taking whatever steps are necessary to make the required equipment available should they propose to use the copies of the exhibit in the course of oral argument.
[3] Counsel also submits that the appeal should be adjourned because Justice Moldaver, a member of this panel, should not sit on the appeal. In 2004, Justice Moldaver sat on the appeal from an order of Nordheimer J. granting summary judgment in favour of two of the defendants in this action. This court dismissed that appeal on October 18, 2004.
[4] Counsel argues that the dismissal of the appeal by a unanimous panel of which Moldaver J.A. was a member is somehow indicative of a reasonable apprehension of bias on this appeal on the part of Moldaver J.A.
[5] We have examined the brief reasons of this court. The appeal from the summary judgment of Nordheimer J. failed because on the record before Nordheimer J., counsel for the appellant failed to adduce any evidence giving rise to a genuine issue for trial concerning the defendants’ denials of the allegations of wrongdoing in their affidavits filed on the motion. Nothing in the reasons of this court could possibly support a reasonable apprehension of bias on the part of an informed reasonable observer.
[6] Counsel for the appellant makes a second argument in support of the contention that Moldaver J.A. should not sit on this appeal. He tells us that Moldaver J.A. made certain comments during argument of the previous appeal that he and his co-counsel found personally offensive. Counsel tells us that these comments, in his view, support an allegation of a reasonable apprehension of bias by Moldaver J.A. There is no evidence before us to support any of the accusations made by counsel. Moreover, as we understand it, no prior notice was given that these accusations would be made. We also note that Moldaver J.A. sat on a motion by conference call in this appeal in February 2008 without any objection from counsel. We are surprised and very concerned that a serious allegation of this kind would be raised in this manner. We do not for a moment accept that there is any legitimate basis for, or any validity to, the accusations that have been made by counsel for the appellant.
[7] It is, however, important that this appeal proceed on its merits without further delay and expense to the parties. Our colleague, Moldaver J.A., while understandably deeply offended by the accusations that have been made, has decided that it is in the interests of justice for all parties that the appeal proceed without any further delay. He has, therefore, determined on his own that he will not sit on the appeal. Arrangements have been made to have the duty judge join this panel in place of Moldaver J.A. at 2:30 p.m. today. The appeal will proceed at 2:30 p.m.
“Doherty J.A.”
“M.J. Moldaver J.A.”
“E.A. Cronk J.A.”
CITATION: Walsh v. 1124660 Ontario Limited, 2008 ONCA 432
DATE: 20080530
DOCKET: C45641
COURT OF APPEAL FOR ONTARIO
DOHERTY, ROSENBERG and CRONK JJ.A.
BETWEEN:
CHARLENE WALSH
Appellant (Plaintiff)
and
1124660 ONTARIO LIMITED, BRIGITTE REGENSCHEIT, P.C. ANDREW MAY, P.C. JIM STRAVRAKIS
Respondents (Defendants)
Ernest J. Guiste for the appellant
David Shiller for the respondents, 1124660 Ontario Limited and Regenscheit
Diana W. Dimmer and Mark Siboni for the respondents, May and Stravrakis
Heard: May 14 and 16, 2008
On appeal from the judgment of Justice Dennis Lane of the Superior Court of Justice, sitting with a jury, dated June 2, 2006.
ENDORSEMENT OF MAY 16, 2008
[1] The appellant worked for a Tim Horton’s restaurant (the respondent, numbered company). The management of that outlet became concerned that staff members (not the appellant) were stealing from the store on the night shift. A videotape was activated so that the management could watch the conduct of the employees. After viewing a videotape that included a period of time during which the appellant was working on the takeout window, the manager became concerned that the appellant was stealing money by not depositing all the money received from customers into the cash register. That manager contacted the owner who instructed him to contact the local police. The police investigated and the appellant was charged with theft. She was later acquitted.
[2] The appellant commenced a lawsuit against the arresting officer (the respondent, May) and the numbered company. She advanced numerous causes of action, including malicious prosecution, wrongful dismissal, intentional infliction of mental distress and defamation. After a lengthy trial, the jury found against her on all issues.
[3] We see no basis upon which we can revisit the jury’s factual findings. None of those findings can be properly characterized as unreasonable. We approach this appeal on the basis that the jury was entitled on the evidence it heard, assuming it was properly instructed, to come to the factual conclusions reflected in the jury’s answers to the questions posed by the trial judge.
[4] We also recognize that the test for interference with a civil jury verdict is a high one. An appellate court will not order a new trial unless a substantial wrong or miscarriage of justice has occurred and the interests of justice plainly require a new trial.
[5] The appellant advanced several grounds of appeal in her factum. Counsel made oral submissions in support of some of those grounds. We have considered all those grounds of appeal but required submissions from the respondents on only three. These reasons address only the three grounds on which we required submissions from the respondents.
[6] The grounds upon which we required submissions are the following:
(i) Did the trial judge misdirect the jury on the requisite legal elements of the offence of theft and, if so, what was the impact of that error?
(ii) Did the trial judge fail to adequately outline to the jury the position of the plaintiff with respect to the allegation of theft?
(iii) Did the trial judge err in failing to limit the allegation of theft relied on by the defendants to a single occurrence referred to as the “toonie incident” and by allowing the defence to justify the theft allegation by reference to other occurrences captured on the videotape?
The Definition of Theft
[7] The appellant submits that the trial judge misdirected the jury on the definition of theft. The trial judge gave the jury an accurate definition of theft that included reference to the requisite mental element. However, in expanding on the definition, he used the phrase “knowing it could be Tim Horton’s property” when he should have said “knowing it was Tim Horton’s property” [Emphasis added.]. The balance of the charge was, however, correct and, in particular, the trial judge had only moments earlier told the jury that the taking must be of another’s property.
[8] More to the point, the case turned on the appellant’s assertion that she was lawfully entitled to keep the money she took because that money represented proper tips. There is no possibility that the jury could have misunderstood that the appellant was entitled to keep her tips. There was no assertion by anyone that the appellant was not entitled to keep her tips. The whole thrust of the very long trial centred around the appellant’s assertion that she did not steal any money and that the money she was seen taking was her own tip money.
The Position of the Plaintiff at Trial
[9] The argument that the trial judge failed to adequately outline the plaintiff’s position on the issue of theft is to some extent addressed in our consideration of the first ground of appeal. The trial judge did not deal separately with the position of either the plaintiff or the defendants on the theft related issues. It would have been better had he made at least some discrete reference to the respective positions of the parties and expressly alerted the jury to the competing positions taken on whether the appellant had committed theft. However, as we have already observed, the positions of the parties involving the issue of theft were simple and straightforward. The jury could not have failed to appreciate those respective positions, which were fully explored throughout the lengthy evidence and in closing submissions by counsel. We note that counsel for the appellant did not object to the jury instructions on this ground.
The Scope of the Theft Allegation
[10] The appellant argued that the criminal theft allegation made against her was limited to the allegation of theft of a single toonie arising out of a single occurrence. Counsel submits that the trial judge improperly allowed the defendants, in their defence of the malicious prosecution charge, to expand the allegation of theft to include other actions by the appellant seen on the videotape. Counsel argues that as the criminal charge related only to the single alleged theft of one toonie, it was incumbent on the defendants, in defending against the malicious prosecution allegation, to limit their justification for the allegation to the single occurrence of theft involving the toonie.
[11] Without passing on the legal legitimacy of the appellant’s submission, we are satisfied that it fails for another reason. We cannot agree on this record that the criminal allegation was limited to a single occurrence involving a single toonie. As we cannot agree that the criminal allegation was as narrowly drawn as counsel alleges, it follows that this submission must fail.
Conclusion
[12] We would dismiss the appeal.
[13] We note that the trial judge, in an appropriate but generous exercise of his discretion, declined to make any order as to costs against the appellant at trial. The respondents have been entirely successful on the appeal and are entitled to their costs of the appeal if, in all the circumstances, they think it appropriate to seek those costs. Should the respondents seek costs, they should provide written submissions of no more than seven pages within ten days of the release of these reasons. The appellant should have ten days to respond in writing to those submissions. Her response should be no more than seven pages.
“Doherty J.A.”
“M. Rosenberg J.A.”
“E.A. Cronk J.A.”