CITATION: Agius v. Home Depot Holdings Inc., 2011 ONCA 686

DATE: 20111104

DOCKET: C50120

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Sharpe J.A. and Cunningham A.C.J. (ad hoc)

BETWEEN

Charles and Irene Agius

Plaintiffs (Appellants)

and

Home Depot Holdings Inc.

Defendant (Respondent)

Tim Danson and Marjan Delavar, for the Appellants

S. Wayne Morris and Teri Liu, for the Respondent

Heard and released orally: September 29, 2011

On appeal from the judgment of Justice Leonard Ricchetti of the Superior Court of Justice sitting with a jury, dated February 6, 2009.

ENDORSEMENT

[1] We do not agree that the jury charge was deficient. We note that the experienced trial counsel representing the appellant made no objection to the charge during the trial. Further, the trial judge did not misstate the appellant’s testimony; rather the impugned passage merely reflected the respondent’s position. The omission of the summary of the evidence from the written charge would have been apparent to the jury and caused no prejudice. In addition, we disagree with the appellant’s position that the trial judge misstated the law under the Occupier’s Liability Act, R.S.O. 1990, c O.2. The trial judge set out the law with respect to an occupier’s duty clearly.

[2] On our reading of the record, the trial judge did not exclude the appellants except – on agreement of counsel – until after they were called to testify. There is no error in this respect.

[3] As for the ground of appeal alleging that the jury address was inflammatory, it was not inappropriate for counsel for the defendants to ask the jury to conclude, based on the evidence, that one or more of the witnesses were “liars”.

[4] The appeal is dismissed.

[5] Costs to the respondent in the agreed upon amount of $30,000 all inclusive.

“W.K.Winkler C.J.O.”

“R. J. Sharpe J.A.”

“J.D. Cunningham A.C.J. ad hoc”