Wiseman v. Home Depot of Canada Inc., 2008 ONCA 706

Citation: Wiseman v. Home Depot of Canada Inc., 2008 ONCA 706

Date: 2008-10-15

Docket: C46437

Court of Appeal for Ontario

Before: O’Connor A.C.J.O., Simmons and Lang JJ.A.

Between:

Matthew Walker Wiseman an infant, by his Litigation Guardian, Karen Wiseman, Karen Wiseman personally, Darrin Walker, Alan Wiseman, Elsie Wiseman, George Walker and Carol Walker

Plaintiffs (Respondents)

and

Home Depot of Canada Inc. and Cramaro Tarpaulin Systems Ltd. c.o.b. Insta-Fence

Defendants (Appellant)

Counsel:

Donald G. Cormack and Derek V. Abreu, for the appellant Home Depot of Canada Inc. et al.

Barry A. Percival, Q.C., for the appellant Cramaro Tarpaulin Ltd., c.o.b. Insta-Fence

Heard and released orally: October 9, 2008

On appeal from the judgment of Justice H. Rady of the Superior Court of Justice dated December 1, 2006.

Endorsement

[1] On May 24 1998, the infant plaintiff was severely injured when a fence on the appellant Home Depot's premises fell on top of him. The fence had been installed by the respondent Insta-Fence about one month before the accident. The plaintiffs sued Home Depot and Insta-Fence.

[2] After a trial with a jury the plaintiff was awarded approximately $3 million in damages. The jury found that both Home Depot and Insta-Fence were negligent and apportioned liability 95% to Home Depot and 5 % to Insta-Fence.

[3] This appeal relates only to the apportionment of damages. In oral argument, Home Depot pursued only one ground of appeal.

[4] Home Depot argues that the trial judge erred in admitting a statement and, after admitting it, in failing to caution the jury about its use. The statement was made by Rob Dixon, one of the employees of Insta-Fence, who installed the gate on Home Depot’s premises. Mr. Dixon died before trial. In his statement made shortly after the accident, Mr. Dixon said that he installed the fence with a butterfly configuration at the request of a Home Depot employee and that he warned the employee that the fence would be unstable.

[5] As to the admissibility of the statement, it is not clear on the record that Home Depot’s counsel (not counsel on the appeal) objected to its admissibility when it was entered into evidence. It is also not clear that the trial judge would necessarily have excluded the statement even if an objection had been made.

[6] We turn then to the argument that the trial judge failed to caution the jury appropriately about the use to be made of Mr. Dixon’s statement. We agree with the appellant that it would have been preferable if the trial judge had warned the jury about the appropriate use of the statement. However, counsel had a copy of the trial judge’s charge before it was delivered and, on a fair reading of the several exchanges between counsel and the trial judge, it appears that counsel for Home Depot did not press the point that further instruction should be given.

[7] While in response to a question from the jury, the trial judge read the Dixon statement to them, it is important to note that the jury made no reference to that statement in answering the question regarding Home Depot’s liability. The absence of such a reference is particularly telling in light of the detailed particulars of Home Depot’s negligence relied upon by the jury. The focus of the jury’s answers related to the fact that the fence had fallen down on three prior occasions and that Home Depot’s employees did nothing to rectify the situation.

[8] In these circumstances, we are not satisfied that the jury’s apportionment of liability constituted a substantial wrong or a miscarriage of justice.

[9] In its factum, Home Depot raised other grounds of appeal. None of these grounds warrant appellate interference.

[10] The plaintiff’s damages have been paid in full. The appeals against the award of damages are dismissed on consent.

[11] In the result, the appeal is dismissed.

“D. O’Connor A.C.J.O.”

“Janet Simmons J.A.”

“S. E. Lang J.A.”