COURT OF APPEAL FOR ONTARIO

CITATION: Vokes Estate v. Palmer, 2012 ONCA 510

DATE: 20120724

DOCKET: C53990

Simmons, Juriansz and Epstein JJ.A.

BETWEEN

The Estate of Michelle Vokes, deceased, Bradley Vokes, Madison Vokes and Abigail Vokes, by their Litigation Guardian, Bradley Vokes

Plaintiffs/Respondents

and

Randall A. Palmer by his Litigation Guardian, Marnie Palmer, and Ing Insurance Company of Canada

Defendants/Appellant

David R. Young and Kevin Bridel, for the appellant

James L. Vigmond and Adam R. Little, for the respondents

Heard: July 16, 2012

On appeal from the judgment of Justice John R. Sproat of the Superior Court of Justice, sitting with a jury, dated June 16, 2011.

ENDORSEMENT

[1] This appeal arises from a jury’s verdict in an action involving a fatal motor vehicle accident. The deceased, Michelle Vokes, was pregnant and approaching her delivery date. The unborn child did not survive the accident. Ms. Vokes was survived by her husband and two young daughters aged five and three.

[2] In oral argument, the appellant advanced three of the issues raised in its factum.

[3] First, the appellant argued that the trial judge erred in his instructions concerning the duty owed by Ms. Vokes on entering a highway under s. 139(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[4] In the course of vetting his draft jury charge with counsel, the trial judge said he intended to omit the emphasized words set out below from his draft instructions concerning this duty:

That section therefore imposes a very positive duty on Michelle Vokes in this case, breach of which would clearly constitute negligence. On the other hand, this positive duty on Ms. Vokes does not relieve Mr. Palmer who was operating his motor vehicle on the [through] highway from exercising ordinary care in the circumstances.

The trial judge subsequently charged the jury using the modified language.

[5] The appellant claims that the trial judge’s modified language departs from standard language used in other cases to describe the duty on a driver entering a highway and that the trial judge’s modification improperly diminishes the extent of that duty.

[6] We disagree. First, we note that trial counsel for the appellant did not object to these changes in the language of the draft jury charge when the trial judge said he intended to make them. Moreover, at the conclusion of the trial judge’s charge, which included the modified language, trial counsel for the appellant not only again failed to object but also went further and described the jury charge as “an exercise in perfection.”

[7] While a failure to object is not always fatal in a civil jury trial, “an appellate court is entitled to give it considerable weight”: Marshall v. Watson Wyatt & Co. (2002), 2002 CanLII 13354 (ON CA), 57 O.R. (3d) 813, 209 D.L.R. (4th) 411 (C.A.). In the absence of an objection at trial, in most instances, an alleged misdirection or non-direction will not result in a new trial in a civil case unless the appellant can show that a substantial wrong or miscarriage of justice has occurred: Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board (2004), 2004 CanLII 874 (ON CA), 71 O.R. (3d) 803 (C.A.) at paras. 22-28.

[8] In this case, in our view, the trial judge's modified description of Ms. Vokes’ duty on entering a highway was not inappropriate having regard to the circumstances of the accident. It is undisputed that, at the time of accident, the defendant driver was travelling at a speed significantly in excess of the posted speed limit of 50 kph. Moreover, there was evidence indicating that it would have been difficult for Ms. Vokes to detect the excessive speed in the circumstances. Finally, we note that the trial judge in this case did not make the error made in one of the decisions relied on by appellant – namely, the error of suggesting that there were competing onuses on the two drivers.

[9] Second, the appellant argued that the trial judge erred by failing to instruct the jury on the available range of damages for loss of guidance, care and companionship. Trial counsel for the appellant asked the trial judge to give such an instruction. However, when opposing counsel gave the trial judge a decision indicating that such an instruction can only be given with the consent of counsel, appellant’s trial counsel took no steps to correct the mistaken impression of the law that was created.

[10] Under s. 118 of the Courts of Justice Act, R.S.O. 1990, c. 43, a trial judge may, but is not obliged, to instruct the jury on the range of damages. Although we agree that such an instruction may have been helpful in this case, in our view, it is not open to the appellant to complain, on appeal, about the trial judge’s failure to give what is essentially an optional instruction when appellant’s trial counsel took no steps to clarify that consent to such an instruction was not required. In our view, this omission was the effective equivalent of a failure to object.

[11] Finally, the appellant argued that the amounts awarded by the jury for loss of guidance, care and companionship are gross and excessive and should be set aside.

[12] We disagree. The threshold for appellate intervention in a jury’s award of damages is extremely high. In the absence of an error in the charge, to warrant appellate intervention “the jury’s assessment must be so inordinately high (or low) as to constitute a wholly erroneous assessment of the guidance, care and companionship loss”: Fidler v. Chiavetti, 2010 ONCA 210, [2010] O.J. No. 1159, at para. 77, citing To v. Toronto (City) Board of Education (2001), 2001 CanLII 11304 (ON CA), 55 O.R. (3d) 641 (C.A.) at para. 31.

[13] As we have said, we agree that the jury in this case may well have benefited from an instruction concerning the range of such damages. Nonetheless, although the amounts awarded are high, in our view, they are not so inordinately high in all the circumstances of this case as to meet the threshold for appellate intervention.

[14] The appeal is therefore dismissed with costs to the respondents on a partial indemnity scale fixed in the amount of $20,000 inclusive of disbursements and applicable taxes.

“J. M. Simmons J.A.”

“R. G. Juriansz J.A.”

“G. J. Epstein J.A.”