CITATION: Burhoe v. Mohammed, 2011 ONCA 339

DATE: 20110429

DOCKET: C50682

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Lang and Karakatsanis, JJ.A.

BETWEEN

Derrick Burhoe

Plaintiff (Respondent)

and

Abdenuce Mohammed, Budget Car Rentals Toronto Ltd.

Defendants (Appellants)

Chris G. Paliare and Andrew K. Lokan, for the appellants

Mark A. Klaiman, for the respondent

Heard: April 21, 2011

On appeal from the orders of Justice Gordon D. Lemon of the Superior Court of Justice, dated June 3, 2009 and June 2, 2009, respectively.

APPEAL BOOK ENDORSEMENT

[1] We do not agree with the trial judge that the jury’s answers were inconsistent. Given the nature of the jury award, the jury clearly thought that the injury suffered was significantly less serious than that claimed and that the plaintiff was entitled to some past wage loss. Given the fact that the expert evidence for past wage loss gave the jury two scenarios of either nothing or $11,000, that it did not clearly indicate the annual wage losses, and given the relatively small amount involved, the jury was entitled to do the best it could with the evidence it had. However the jury clearly did not believe the plaintiff was entitled to future wage earnings or increased general damages and there was evidence to support those findings. The appeal is allowed and the jury’s verdict is reinstated.

[2] The respondent concedes that the order for costs was wrong given the order for a re-trial. Leave is granted, the costs order is set aside, and the issue of costs is remitted to the trial judge.

[3] Costs fixed at $15,000 all inclusive.