Court File and Parties

Citation: Nicholson v. Whan, 2011 ONCA 28

Date: 2011-01-14

Docket: C51393

Court of Appeal for Ontario

Before: Winkler C.J.O., Simmons and Watt JJ.A.

Between:

Derek Nicholson, Emma Nicholson, Amanda Nicholson, Haley Nicholson and Talia Nicholson by their Litigation Guardian, Derek Nicholson, Michael Nicholson, Moira Nicholson and Brian Forsyth

Plaintiffs (Appellants)

And

Beverly Ann Whan, Elaine Marilyn Steele and Shabian Equestrian Centre

Defendants (Respondents)

Counsel:

Michael Burgar, for the appellants

Joseph Obagi, for the respondents

Heard and endorsed: January 13, 2011

On appeal from the judgment of Justice Robert Maranger of the Superior Court of Justice, sitting with a jury, dated November 13, 2009.

Appeal Book Endorsement

[1] In a case involving a claim under the Dog Owner's Liability Act, R.S.O. 1990, C. D. 16, the appellant claims that the trial judge erred in his instructions to the jury concerning the word "attack" as it appears in s. 2(1) of the Act.

[2] The appellant argues that the trial judge misdirected the jury by instructing them that the language in a strict liability statute must be given a strict and narrow interpretation. The appellant also contends that the trial judge's explanation of the term attack was inadequate.

[3] We would not give effect to this ground of appeal. Even accepting that the trial judge erred in instructing the jury that the language in a strict liability statute must be given a narrow interpretation, absent misdirection on the meaning of the words, we are not persuaded the jury would have been led into error by this instruction.

[4] Concerning the alleged inadequacy of the trial judge's instructions, none of the issues raised on appeal were the subject of objections at trial. As this court said in Rizzi v. Mavros, [2008] O.J. No. 935, at para. 38, the absence of objection suggests that the issue was not seen as central to the jury's deliberations. Particularly in the absence of the closing addresses to the jury, and given the manner in which the trial judge framed the positions of the parties, we are not persuaded that the alleged inadequacies would have had any impact on the jury's deliberations.

[5] The appellant also raises an issue about the admission of alleged hearsay evidence of a statement made by one of the appellant's witnesses. Although this evidence may have been relevant in a general way to the issue of credibility, its primary relevance related to the issue of contributory negligence. Having regard to the jury's finding that the dogs did not attack the appellant, we do not reach the issue of contributory negligence. Once again, appellants’ counsel raised no objection to the admission of this evidence or to the trial judge’s failure to instruct the jury concerning hearsay. Particularly in the absence of the closing addresses, we are unable to conclude that this issue was central to the jury’s deliberations as to whether an attack occurred. Similar considerations apply to the appellants’ argument that the rule in Browne v. Dunn was offended.

[6] The appellant did not pursue the issue of read-ins in oral argument. We would not give effect to this ground of appeal.

[7] Even if the jury misunderstood the trial judge’s instructions on damages, it does not impugn the integrity of their first conclusion that there was no attack.

[8] Costs of the appeal are to the respondents, on a partial indemnity scale fixed in the amount of $15,665.84 inclusive of disbursements and applicable taxes.