COURT OF APPEAL FOR ONTARIO

CITATION: Zurek v. Ferris, 2012 ONCA 742

DATE: 20121105

DOCKET: C53999

Laskin, Blair and Epstein JJ.A.

BETWEEN

Deanna Zurek and Theodore Zurek-Dunne by his litigation guardian, Deanna Zurek

Plaintiffs (Appellants)

and

Jon Ferris and Enterprise Rent A Car Canada Limited

Defendants (Respondents)

Karl Arvai, for the appellants

James K. Brown and Greg Robson, for the respondents

Heard: October 3, 2012

On appeal from the judgment of Justice T. David Little of the Superior Court of Justice, sitting with a jury, dated June 8, 2011.

ENDORSEMENT

[1] The appellant, Deanna Zurek, suffered soft tissue injuries to her neck and back, when her car was struck from behind by the respondents’ car. The respondents admitted liability for Ms. Zurek’s injuries. After a trial, a jury assessed her damages as follows:

• General non-pecuniary damages: $40,000

• Past loss of income: $40,000

• Future loss of income: $0

• Future care costs: $30,000

• Loss of guidance, care and companionship damages for Ms. Zurek’s son: $15,000

[2] Ms. Zurek seeks to set aside the jury’s verdict and asks this court to order a new trial. The overriding issue on the appeal is whether the trial judge’s charge to the jury deprived Ms. Zurek of a fair trial – or, in the words of s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43, caused a substantial wrong or miscarriage of justice.

[3] We acknowledge that the charge was, to use Mr. Arvai’s word, “unorthodox”. Moreover, some of the trial judge’s comments were unnecessary and not germane to the issues the jury had to decide.

[4] We are nonetheless satisfied that the charge as a whole was fair. It presented to the jury in a balanced way and in ordinary language the issues the jurors had to resolve and the evidence bearing on those issues.

[5] For example, the trial judge instructed the jury:

• “You try and be fair and use your common sense to compensate the plaintiff for the injuries she sustained, the hurt that she got as a result of the negligence because Ferris drove into the back of her car.”

• “You don’t have to find great big bumps and blood and cuts to have a real whiplash.”

• “… [I]t’s hard to determine whether it’s faking or whether it’s real or whether it’s embellished. But I’ll tell you something, she all of a sudden went for treatment after the accident – something happened. Things changed, think about that.”

• “Sit and pick a fair figure, using your common sense, that will properly compensate her for her lost future wages caused by [the] accident…”

• “… [S]he’s entitled to be put right back in the position she was in before, as best we can, so she doesn’t have to walk around with a neck brace and a cane, trying to wash dishes. She doesn’t have to do that, so we’re trying to put her back.”

[6] That few objections to the charge were raised at trial supports our conclusion that the charge as a whole was fair.

[7] Ms. Zurek’s main, though not only, complaint with the jury’s verdict was its decision not to compensate her for future income loss. The evidence at trial, however, reasonably supported the jury’s decision on this issue.

[8] Before the accident, Ms. Zurek had frequently switched jobs and had never earned more than a modest income. By the time of the accident, her commitment to remaining involved in her business, Get-Around-Organics, was questionable. Indeed, when the accident occurred, she was home-schooling her young son. Then, about a year before the trial, she moved from London to the Bracebridge area where she spent the summer in a park and leased a cabin for the winter.

[9] Ms. Zurek had the burden to establish on a balance of probabilities that the accident prevented her from earning an income similar to her pre-accident income. It is apparent from the verdict that in the jury’s opinion, she failed to do so. We cannot say that this opinion was unreasonable.

[10] Finally, we are not persuaded that the trial judge made any legal error in his charge. He told the jury, “[t]he lawyers have gone through the questions with you, the lawyers have even put the law to you and I think they’re right, generally.”

[11] The trial judge’s charge was not perfect. But in the words of this court in Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722, at para. 68 it “got the job done.”

[12] Accordingly, the appeal is dismissed, with costs in the amount of $15,000, inclusive of disbursements and applicable taxes.

“John Laskin J.A.”

“R.A. Blair J.A.”

“G.J. Epstein J.A.”