Court of Appeal for Ontario

Citation: Amato v. Pesek, 2010 ONCA 708

Date: 2010-10-27

Docket: C50657

Between:

Pauline Amato

Respondent (Plaintiff)

and

Phillip J. Pesek and George Pesek

Appellants (Defendants)

Before: Moldaver, Simmons and Gillese JJ.A.

Counsel:

Todd J. McCarthy and Tara L. Lemke, for the appellants

Donald Martin, Q.C. and Mark Elkin, for the respondent

Heard: October 18, 2010

On appeal from the judgment of Justice Peter Howden of the Superior Court of Justice, sitting with a jury, dated May 29, 2009.

ENDORSEMENT

[1] The respondent, Pauline Amato, was injured in a motor vehicle accident on January 17, 2005. Following a trial before Justice Howden, and a jury, in which the jury was called upon only to assess damages, liability having been conceded, the jury awarded the respondent $100,000 in general damages, $109,000 for past loss of income, $389,000 for future loss of income and $400,600 for future care costs.

[2] The appellants seek to set aside the judgment entered in accordance with the jury’s verdict and request that a new trial on the issue of damages be directed. The appellants raise three issues on appeal:

(1) Did the trial judge improperly interfere with the conduct of the trial by questioning witnesses, not for the purpose of clarifying their evidence but for the purpose of enhancing the plaintiff’s credibility and assisting her case;

(2) Did the trial judge unfairly diminish the position of the defence in his charge to the jury; and

(3) Was the jury’s award so excessive that it should be set aside.

[3] The appellants did not pursue the third ground of appeal in oral argument. In any event, we see no basis for interfering with the jury’s award. If, as appears to be the case, the jury concluded that the respondent was telling the truth about the nature and extent of her injuries and the pain she was suffering, the awards are not excessive, let alone grossly excessive.

[4] With respect to the primary ground of appeal, our review of the record leads us to conclude that while the trial judge did question a number of witnesses, at considerable length in some instances, the questions posed were largely designed to clarify answers that had been given in-chief or cross-examination and/or to elicit further information that would enhance the jury’s understanding of the witnesses’ evidence.

[5] By and large, the questions posed by the trial judge took the form of examination-in-chief. They were non-leading in nature and largely non-confrontational. Questions that took the form of cross-examination were, for the most part, limited to follow-up questions that logically flowed from responses the witness had already given to non-leading questions. In our view, the appellants have failed to demonstrate that the trial judge’s questions affected the defence in any material way.

[6] In concluding that the trial judge’s questioning did not overstep the bounds of propriety, we note that experienced defence counsel [not Mr. McCarthy or Ms. Lemke] did not raise a single objection to the questions which the appellants now submit, for the first time on appeal, were highly prejudicial and improper. In the same vein, we note that defence counsel, although invited to do so, did not ask any questions arising out of the questions posed by the trial judge.

[7] As this court has said before, trial counsel are in the best position to gauge whether a trial judge is overstepping the bounds of propriety and improperly interfering with the conduct of the trial. While not fatal, a failure to object constitutes powerful evidence that neither the appellants nor their counsel felt that the trial judge was improperly interfering with the conduct of the trial as they now suggest.

[8] Mr. McCarthy, for the appellants, forcefully submitted that we should not place undue emphasis on the failure of trial counsel to object. He observed that it is difficult for counsel to object to the conduct of a trial judge and counsel often feel constrained from doing so.

[9] Much as we appreciate Mr. McCarthy’s submission, there are times when trial counsel can be expected to raise objections, especially when they feel that a trial judge is exceeding the bounds of judicial propriety and taking up the cause of one of the parties. Polite but firm objections, in these circumstances, are entirely appropriate. Counsel should not feel constrained for fear of judicial censure. In this regard, we note that defence counsel was not shy to object when he felt the need to do so. The record disclosed several occasions in which he forcefully but politely, registered his disagreement with the trial judge.

[10] For these reasons, we would not give effect to the primary ground of appeal.

[11] With respect to the second ground, we are not at all persuaded that the trial judge failed to fairly put the position of the defence to the jury. In fact, the trial judge made every effort to instruct the jury in a fair and balanced manner and in our view, he set out the position of both sides fully and fairly. In particular, we are not persuaded that defence counsel’s objection to one sentence of the trial judge’s description of a defence doctor’s evidence was valid. In any event, the trial judge instructed the jury that it was their interpretation of the evidence that should govern. Further, we view the appellants’ complaint that the trial judge did not fully describe the “expertise” of the defence doctor as inconsequential. In the end, we see no basis for interfering.

[12] In the result, we would dismiss the appeal. Costs to the respondent in the agreed-upon amount of $20,000, inclusive of disbursements and applicable taxes.

Signed: “M. J. Moldaver J.A.”

“Janet Simmons J.A.”

“E.E. Gillese J.A.”