CITATION: Favuzzi v. West Arthur Place Limited, 2009 ONCA 337
DATE: 20090428
DOCKET: C47972-C47974
COURT OF APPEAL FOR ONTARIO
Doherty, Cronk and Rouleau JJ.A.
BETWEEN
Cheryl Favuzzi and Robert Favuzzi
Plaintiffs (Appellants)
and
West Arthur Place Limited and 642542 Ontario Ltd. a.k.a. Nor-West Elevator Co. Ltd.
Defendants (Respondents)
AND BETWEEN
Tammy Beerthuizen, Albert Francoeur, and Justin Francoeur and Brittney Francoeur, minors by their litigation guardian, Tammy Beerthuizen
Plaintiffs (Appellants)
and
West Arthur Place Limited and 642542 Ontario Ltd. a.k.a. Nor-West Elevator Co. Ltd.
Defendants (Respondents)
W. Danial Newton and Edward S.E. Kim, for the appellants, Favuzzi and Beerthuizen
Gregory R. Birston, for the respondent, West Arthur Place Limited
Barry A. Percival, for the respondent, 642542 Ontario Ltd. a.k.a. Nor-West Elevator Co. Ltd.
Heard and orally released: April 16, 2009
On appeal from the judgment of Justice H. Pierce of the Superior Court of Justice, sitting with a jury, dated October 15, 2007.
ENDORSEMENT
Background
[1] On December 10, 2002, the appellants and several co-employees were in an elevator in a building owned by the respondent, West Arthur Place Limited. The elevator was maintained by the respondent, Nor-West Elevator Co. Ltd. The appellants and their co-workers got into the elevator and it proceeded to the ground floor. The door did not open entirely and the elevator moved back up to the sixth floor. It then dropped to the fifth floor, stopped momentarily and then dropped further. It eventually came to rest between the second and the third floors. The appellant, Beerthuizen, jumped down to the second floor and injured her ankle. The appellant, Favuzzi, remained in the elevator. She had, however, injured her back when it jolted to a halt. Both sued the respondents.
[2] The case was tried by a judge and jury. The jury found against the appellants on liability. They assessed Favuzzi’s damages at $36,733.35 and they assessed the damages of Beerthuizen at $78,293.15.
[3] The plaintiffs’ expert testified that in his view a prior incident involving the elevator had been caused by a speed control malfunction. He offered the opinion that this problem had not been corrected and must have reoccurred causing the incident involving the appellants.
[4] The appellants and several other people in the elevator testified about the incident. They insisted there was no horseplay by anybody in the elevator prior to the incident.
[5] The defence experts testified that on their examination of the relevant records and the elevator, the elevator had been properly maintained prior to the incident. They also testified that they could find no evidence of any mechanical or other problems with the elevator that could have caused the incident. By a process of elimination, the experts concluded that there must have been some external cause of the malfunction such as the misconduct of the passengers in the elevator.
THE LIABILITY APPEAL
[6] Counsel for the appellants advance four grounds of appeal. Three arise out of the charge to the jury and one concerns an evidentiary ruling made by the trial judge.
(i) Did the trial judge err in failing to review the evidence relating to the defence position that the incident was caused by the misbehaviour of the occupants in the elevator?
[7] The trial judge put the respective positions of the plaintiffs and the defence to the jury in a fair and balanced manner. She did not refer to the evidence for or against the positions of either the plaintiffs or the defence. She had reviewed her proposed charge to the jury with counsel prior to delivering those instructions. Counsel did not take any exception to the manner in which she proposed to deal with the positions of the parties or the evidence. In particular, there was no suggestion that a more detailed review of the evidence was necessary. There was also no objection taken to the charge after it was delivered.
[8] Counsel had reviewed the evidence in the course of their addresses to the jury. The relevant evidence was straightforward, brief and not difficult to understand or recall. In these circumstances, we see no reversible error in the trial judge’s failure to review the relevant evidence. We are confident that the jury was fully aware of the evidence when it made its determination.
(ii) The alleged misdirection in telling the jury that no adverse inference should be drawn from the defence failure to call a witness.
[9] This issue arises out of the following circumstances. The defence had indicated at the outset of the trial that it intended to call a person named “Kyle” who had been in the elevator. The defence ultimately did not call Kyle. Defence counsel explained that it had come to his attention that Kyle knew two of the jurors and had talked to at least one juror during the trial. Consequently, the defence determined that it would not call Kyle. The trial judge, after consultation with counsel, instructed the jury that in these circumstances, no adverse inference should be drawn against either side for the failure to call Kyle as a witness. In effect, the trial judge made it clear to the jury that they should decide the case based on the evidence they heard. In our view, this was an appropriate instruction in these circumstances.
(iii) Did the trial judge misdirect the jury on the burden of proof?
[10] During her instructions, on more than one occasion, the trial judge gave the jury a full, accurate and specific instruction on the burden and standard of proof. In the course of instructing the jury on the significance of compliance or non-compliance with applicable governmental standards to the issue of negligence, the trial judge said:
Where governing legislation stipulates a specific standard of care to be followed and the defendant complies with that government standard, the plaintiffs bear a heavy onus to prove negligence by the defendant who has complied with the standard.
[11] Based on other authorities brought to our attention, this appears to be a commonly used instruction. It is clearly intended to assist the jury in understanding the evidentiary significance on the question of negligence of evidence that a party did or did not comply with applicable governmental standards. Used in this way, the instruction is proper.
[12] It would be better and more to the point of the instruction were this instruction made without any reference to the term “heavy onus”. We agree with counsel’s submission that this phrasing does pose some risk of a suggestion of a higher burden of proof than the applicable balance of probabilities standard. However, having reviewed the trial judge’s instructions in their entirety, we are satisfied that this risk did not arise in this case. We would not give effect to this ground of appeal but do suggest that the term “heavy onus” should be avoided in future instructions.
(iv) Did the trial judge err in refusing to allow the plaintiffs’ expert to testify regarding applicable maintenance standards?
[13] Counsel has taken us through the relevant parts of the transcript. We see no error in the trial judge’s decision. The trial judge did not preclude the plaintiffs’ expert from testifying about the adequacy of Nor-West Elevator Co. Ltd.’s response to either the prior incident or this incident.
[14] Counsel for the appellants candidly acknowledged that on the ruling as it was ultimately made, it was open to counsel at trial to elicit the evidence that had in fact provoked the objection.
Disposition
[15] We dismiss the appeal from the findings against the appellants on the issue of liability. Consequently, we do not reach the damages issues raised by the appellants. The appeal is dismissed.
[16] We award costs to each of the respondents in the amount of $16,000, inclusive of disbursements and GST.
“Doherty J.A.”
“E.A. Cronk J.A.”
“Paul Rouleau J.A.”