COURT OF APPEAL FOR ONTARIO

CITATION: McLean v. Knox, 2013 ONCA 357

DATE: 20130531

DOCKET: C54865

Rosenberg, Gillese and Rouleau JJ.A.

BETWEEN

Kyle McLean

Plaintiff (Respondent/

Appellant by way of cross appeal)

and

Matthew Edward Knox, Judith Knox, 1197584 Ontario Inc. carrying on business as Finnigan’s Roadhouse and The Personal Insurance Company

Defendants (Appellant/

Respondent by way of cross appeal)

and

Pembridge Insurance Company

Statutory Third Party

Robert S. Franklin, for the appellant/respondent by way of cross appeal

William J. Sammon and Amanda Estabrooks, for the respondent/appellant by way of cross appeal

Heard: March 18, 2013

On appeal and cross appeal from the judgment of Justice Robert J. Smith of the Superior Court of Justice, sitting with a jury, dated December 8, 2011, with reasons reported at 2011 ONSC 7298 and further reasons reported at 2012 ONSC 3184 and on appeal from the costs order dated December 8, 2011, with reasons reported at 2012 ONSC 1069.

Gillese J.A.:

[1] This appeal and cross-appeal revolve around a jury verdict rendered after a 13-day civil trial.

BACKGROUND IN BRIEF

The Accident

[2] Matthew Knox and Kyle McLean (“McLean” or the “plaintiff”) began drinking at Finnigan’s bar in the evening of June 3, 2005. They continued drinking at Finnigan’s bar until approximately 3:00 a.m. the following morning. The evidence suggests that both Knox and the plaintiff were seriously intoxicated when they, and two others, climbed into Knox’s car and Knox drove off.

[3] Shortly afterwards, 19 year old Knox lost control of his car while driving at an excessive speed down a main street in Renfrew, Ontario. Neither Knox nor Brad Pelletier, a young cook from Finnigan’s bar who was in the rear seat directly behind Knox, were seriously injured. Tragically, 19 year old Lindsay Norton – the fourth occupant in the car – was thrown from the car and died.

[4] McLean, also aged 19, was found upside down, hanging from his seatbelt, unconscious and bleeding from his head. The most serious injuries he suffered were a concussion and a fracture in three areas of his right elbow, which extended into the joint.

The Law Suit

[5] McLean sued Knox, as the driver of the vehicle, and 1197584 Ontario Inc., carrying on business as Finnigan’s Roadhouse (“Finnigan’s” or the “appellant”), on the basis that it had over-served Knox and him, thereby causing or contributing to the cause of the accident and his injuries.

[6] Shortly before trial, Finnigan’s agreed to settle liability on the basis that it would admit that it was “at least 1% liable” and McLean would limit his damages claim to a maximum of $1 million. From the record, it is unclear whether Finnigan’s admission of liability related to the accident or to McLean’s damages or to both matters. It was further agreed that the trial would proceed to determine McLean’s damages, the degree of McLean’s contributory negligence in causing those damages, and Finnigan’s liability. Knox, who was noted in default, would remain in the action while all of the other defendants would be released without costs.

[7] Extensive medical evidence was required at trial, in part because of Mclean’s pre-existing medical situation. McLean was born with a severe cleft palate. Despite an operation when he was about 10 months old, he was left with a serious lifelong learning disability. As a result of that disability, he completed only grade 8 and dropped out of school part way through grade 9. His learning disability, together with his limited education, make it highly unlikely that he can be retrained for employment in “non-heavy” labour. Prior to the accident, McLean had worked intermittently as both a roofer and a mover.

Motions to Strike the Jury

[8] Before the opening of trial, the plaintiff brought a motion to strike the jury due to the factual complexity of the medical and actuarial evidence and the legal complexity of the apportionment of liability issue. The trial judge dismissed the motion.

[9] During the trial, the plaintiff brought another motion to strike the jury. This motion was based on the conduct of defence counsel to that point in the proceedings, as well as a renewed concern about the complexity of the medical and actuarial issues before the jury. This motion was also dismissed.

The Jury Verdicts

[10] After a 13-day trial, the jury provided these answers (in bold) to the following questions:

(1) Was there any negligence on the part of the Plaintiff Kyle McLean that caused or contributed to the injuries and damages he sustained as a result of the motor vehicle accident of June 4, 2005?

Yes.

(3) (a) If your answer is “Yes” to Question 1, what is the percentage of Kyle McLean’s contributory negligence?

15%

(b) By what percentage, if any, should Kyle McLean’s contributory negligence (answer in Question 3.(a)) be reduced due to Finnigan’s negligence in over-serving him?

1%

(c) What is the net contributory negligence of Kyle McLean (% in 3.(a) X % in 3.(b) provided % in 3.(b) is greater than 0%. If the % in 3.(b) is 0%, then insert the same % as in 3.(a))?

15%

(4) Given the deemed admission of liability by the Defendant Matthew Knox, and the admission by the Defendant Finnigan’s of 1% liability, state in percentages the degree of negligence you attach to each party:

Matthew Knox: 84%

Finnigan’s: 1%

Mr. McLean: 15% (Insert answer to Question “3a” if your answer is “Yes” to Question 1.)

[11] The jury assessed McLean’s damages as follows:

▪ Past income loss from June 4, 2005 until the day of trial - $13,720

▪ Pain, suffering and loss of enjoyment of life - $52,600

▪ Future income loss - $0

▪ Future care costs, including loss of homemaking and householder services - $3,000.

Motion to Refrain from Entering the Jury Verdict on Future Income Loss

[12] After the jury was discharged, the plaintiff brought a motion asking the trial judge to refrain from entering a judgment of $0 for loss of future income, as determined by the jury, and to assess those damages himself instead.

[13] The trial judge set out the law governing his power to intervene with the jury verdict. He also thoroughly canvassed the evidence with respect to McLean’s loss of future income. Based on defence evidence alone, the trial judge concluded that as a result of the accident, McLean:

• could no longer work as a roofer;

• at some point, should have the metal screw that had been inserted to hold his elbow together removed, which would require him to be off work for between two and four weeks;

• had lost 30-40% of the strength in his right arm; and,

• had a 5-10% probability of developing osteoarthritis in his elbow that would likely be increased by heavy lifting.

[14] The trial judge noted that the case before him was not a situation where there was no evidence to support the jury’s verdict of $0 for future income loss but, rather, that the jury’s verdict was given in the face of “uncontradicted” defence evidence to the contrary. He concluded that the jury’s verdict on loss of future income was devoid of any evidentiary foundation and unsupportable in law. He granted the motion and awarded McLean $117,200 for loss of future income.

[15] The trial judge also awarded him costs of the trial of $150,000, plus disbursements of $80,000 and HST.

The Judgment

[16] By judgment dated December 8, 2011 (the “Judgment”), he ordered Finnigan’s to pay damages of $141,378.00, plus the costs award.

THE ISSUES

[17] Finnigan’s raises two issues on appeal:

1. Did the trial judge err in refusing to enter judgment in accordance with the jury’s verdict on the claim for future income loss and in assessing those damages himself? and

2. Did the trial judge err in his costs award?

[18] McLean raises the following additional issues by way of cross appeal:

3. If the appeal is allowed, he asks that this court set aside the jury’s verdict and order a new trial on all issues other than Finnigan’s admitted liability, on the basis of:

(i) the improper conduct of defence counsel at trial, which he contends rendered the trial unfair; and/or

(ii) the trial judge’s failure to strike the jury, given the complexity of the issues and defence counsel’s conduct at trial.

4. If the appeal is dismissed, he seeks an order varying the Judgment without regard to the deductible under the Insurance Act, R.S.O. 1990, c. I.8.

THE APPEAL

The Jury Verdict on Future Income Loss

[19] Finnigan’s submits that in substituting his own determination of damages for future income loss, the trial judge erred in two ways. First, it contends that the trial judge was not entitled to disregard the jury’s verdict of $0 for that head of damages. Second, it says that in any event, the trial judge did not have the power to substitute his own assessment of those damages. Rather, if the trial judge was entitled to set aside the jury award, his only recourse was to order a retrial.

[20] There is no dispute as to the law that governs when a trial judge can refuse to enter judgment in accordance with the verdict of a jury. At common law, a trial judge can disregard the answers which form the jury verdict only: (i) if there is no evidence to support the jury finding; or (ii) the jury gives an answer to a question which cannot in law provide a foundation for a judgment: see Hill v. Church of Scientology of Toronto (1992), 1992 7516 (ON SC), 7 O.R. (3d) 489 (Gen. Div.), at p. 498, rev’d in part on other grounds (1994), 1994 10572 (ON CA), 18 O.R. (3d) 385 (C.A.), aff’d 1995 59 (SCC), [1995] 2 S.C.R. 1130.

[21] Further, rule 52.08 of the Rules of Civil Procedure, R.R.O. 1990, O.Reg. 194, sets out certain conditions under which a trial judge can order that an action be retried or dismissed:

52.08 (1) Where the jury,

(a) disagrees;

(b) makes no finding on which judgment can be granted; or

(c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,

the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action. [Emphasis added.]

[22] In my view, neither the common law test nor the conditions in rule 52.08 were met. Consequently, the trial judge was not entitled to disregard the jury’s verdict on future income loss.

[23] In respect of the common law, it cannot be said that there was no evidence to support the jury verdict of $0 for future income loss. There was evidence that the plaintiff earned as much income, or more, following the accident as he had earned before the accident. Also, the plaintiff suffered from serious credibility issues in respect of his income and his motivation to work. In addition, there was evidence that the plaintiff had alternative job opportunities available to him. For example, when asked in cross-examination about his sources of income in 2010, the plaintiff testified that he had done some cooking at a sports bar.

[24] In these circumstances, it cannot be said that there was no evidence on which the jury could reject a claim for future income loss. Even assuming that the defence evidence on the plaintiff’s injuries was “uncontradicted and uncontested”, as the trial judge found, that evidence was not determinative of the question of future income loss – credibility and motivation to work were also relevant to such a determination.

[25] As the trial judge placed significant reliance on Teskey v. Toronto Transit Commission (2003), 3 C.P.C. (6th) 181 (Ont. S.C.), a comment on that case is in order. In Teskey, the plaintiff’s claim was for defamation and malicious prosecution. The jury was instructed to assess the plaintiff’s damages regardless of their findings on liability. It returned a verdict of $0 for both torts. The trial judge rejected those verdicts.

[26] The trial judge overturned the jury verdict in respect of defamation because of the presumption that once defamation is proven, nominal damages – at a minimum - follow. The jury award of $0 led her to conclude that the jury did not understand the instructions they had been given in respect of damages for defamation. That is, she found that the jury had given an answer to a question which could not, in law, provide a foundation for the judgment.

[27] As for damages for malicious prosecution, the trial judge in Teskey found the jury award of $0 not supportable based on the undisputed evidence of the plaintiff’s legal expenses incurred in defending the charges against him. At para. 58 of Teskey, the trial judge explained that the only conclusion that the jury could have reached, had they understood their instructions, was to find damages of at least $2,140, the amount of the legal bills for which supporting documentation had been filed.

[28] In the present case, the trial judge stated that the ruling in Teskey in respect of damages for defamation did not apply because there is no presumption of damages for future income loss. I agree.

[29] However, I do not agree with the trial judge that the reasoning in Teskey, in relation to damages for malicious prosecution, is applicable to this case. In Teskey, the plaintiff incurred legal expenses in defending the charges and he proved those expenses. Had the jury understood their instructions, they would have been bound to have found damages of at least that amount. A $0 award, in those circumstances, was not sustainable. In the present case, however, there is no certainty that McLean would suffer future income loss. As already explained, the jury had to decide that question based on not only the medical and other expert evidence but also on McLean’s work history and credibility.

[30] Finally, to the extent that the trial judge’s determination in this case was implicitly based on the view that the jury’s verdict on future income loss was unreasonable or perverse, as distinct from lacking an evidentiary foundation, I note that the issue of an unreasonable or perverse verdict is a matter for the appellate court: see Lang v. McKenna (2000), 2000 16814 (ON CA), 135 O.A.C. 304 (C.A.), at para. 24, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 539.

[31] As for rule 52.08(1), it is readily apparent that none of the conditions set out in (a) to (c) were in play. And, for the reasons already given, it cannot be said that there was no evidence on which to base the jury verdict of $0 for future income loss.

[32] Having found that the trial judge erred in setting aside the jury’s verdict on damages for future income loss, it becomes unnecessary to decide whether the trial judge had the power to substitute his own assessment of damages for future income loss.

[33] Nothing in the foregoing reasons should be taken as approving the trial judge’s decision to set aside the jury verdict on damages for malicious prosecution in Teskey or to substitute her assessment of those damages.

The Costs Award at Trial

[34] Finnigan’s says that the trial judge erred in not ordering some costs of the trial in its favour.

[35] I disagree.

[36] The trial judge gave detailed reasons for the costs award. He considered the factors set out in Rule 57 of the Rules of Civil Procedure, including:

• the complexity and importance of the matter;

• the amounts that the plaintiff had claimed versus the amounts that the jury awarded;

• the defendants’ collective offer to settle, dated January 26, 2011, and Finnigan’s offer to settle, dated September 14, 2011, neither of which – as the trial judge correctly found – qualified as a rule 49.10 offer; and,

• the conduct of defence counsel, which the trial judge described as being “on the edge” and which necessitated numerous correcting instructions to the jury.

[37] The trial judge also fairly reduced the costs awarded to reflect the plaintiff’s unsuccessful motions to strike the jury.

[38] Further, the trial judge noted that Finnigan’s was represented by experienced counsel who had not filed a costs outline, as required by rule 57.01(6), and who did not submit that the costs claimed by the plaintiff were beyond what the unsuccessful party would reasonably have expected to pay.

[39] The plaintiff was successful at trial. There was no rule 49.10 offer. He is presumptively entitled to his costs unless there are special circumstances to deprive him of costs. The trial judge found that no such circumstances existed. I agree.

[40] Even factoring in the result of the appeal, I see no basis on which to interfere with the costs award. The amount of the plaintiff’s damages was but one factor in the trial judge’s exercise of discretion. Furthermore, while the outcome of this appeal is to set aside the trial judge’s substituted assessment of damages for future income loss, the full effect of that is diminished by the partial success that McLean enjoys in respect of the cross appeal, as explained below.

THE CROSS APPEAL

[41] It will be recalled that the cross appeal was framed in the alternative, depending upon whether the appeal was allowed. Because I would allow the appeal in part, I must address the first of the two issues raised by way of cross appeal, namely, whether the trial judge erred in refusing to strike the jury because of improper conduct by defence counsel at trial or the complexity of the matters in issue. In addition, however, in its supplementary notice of cross appeal, the respondent (cross appellant) raised the issue of the validity of the jury questions on the apportionment of liability. As both parties made submissions on this issue and it bears on the primary question on the cross appeal of whether a new trial ought to be ordered, this issue must also be addressed.

The Trial Judge’s Refusal to Strike the Jury

[42] The plaintiff set out numerous instances of alleged improper conduct by defence counsel at the trial, including breaches of agreements between counsel, ignoring court directions on the use of evidence, improperly attacking the evidence of the plaintiff’s experts, misstating the law and evidence in addresses to the jury, and making misleading statements before the jury. He points out that defence counsel has been chastised for behaviour of this type in prior jury trials: see Jordan v. Hall (1987), 17 C.P.C. (2d) 285 (Ont. Dist. Ct.), at pp. 286-88; and Typis (Litigation Guardian of) v. Lavigne (2009), 73 C.P.C. (6th) 346 (Ont. S. C.), at paras. 6 and 22. He contends that the trial judge’s finding that there was no evidence to support the jury verdict on future income loss supports his position that defence counsel’s conduct was so serious that it undermined the fairness of the trial and puts into doubt the validity and fairness of the jury’s verdict.

[43] I am unable to accede to the plaintiff’s submission that a new trial must be ordered on all issues other than Finnigan’s admitted liability.

[44] The trial judge twice considered the plaintiff’s allegations of improper defence conduct, once in the middle of the trial and again after the jury rendered its verdicts. When the trial judge dismissed the plaintiff’s midtrial motion to strike the jury because of defence counsel’s conduct (coupled with the factual and legal complexity of the issues), he was fully aware of defence counsel’s conduct to that point in the proceedings. The trial judge again considered the issue of defence counsel’s conduct when deciding costs. At that point, the trial judge had both observed the entire trial and received the jury verdicts on damages. He stated that although defence counsel’s conduct required a number of correcting instructions, “was pushing the boundaries” and “on the edge”, it was not “so extreme” as to be a major factor in deciding costs.

[45] The trial judge was in the best position to assess the impugned conduct and whether it impaired trial fairness. In his view, the conduct was not so egregious as to require that the jury be struck or that costs sanctions be imposed. Considerable deference is owed by this court to that assessment: see Groen v. Harris, 2010 ONCA 621, at para. 9. I see no basis on which to overturn that assessment.

[46] As for the contention that the complexity of the case warranted the striking of the jury, I see no basis for interfering with the trial judge’s exercise of discretion in refusing to do so. The trial judge was guided by the legal principle that the substantive right to a trial by jury is not to be interfered with, absent just cause: see Graham v. Rourke (1990), 1990 7005 (ON CA), 75 O.R. (2d) 622 (C.A.), at p. 625. He fully considered the matter but was satisfied that the case was not too complex for a jury.

[47] Accordingly, I would not give effect to this ground of the cross appeal.

The Jury Questions on Apportionment of Liability

[48] The plaintiff contends that the questions put to the jury on apportionment of liability were flawed in law.

[49] I agree.

i. Commercial Host Responsibility and Pilon v. Janveaux

[50] The Supreme Court of Canada established the principle of commercial host responsibility in Jordan House Ltd. v. Menow, 1973 16 (SCC), [1974] S.C.R. 239. In Jordan House, a patron drank alcohol at a hotel, to the point of intoxication. After being ejected from the hotel, the patron was struck by a car while walking on the highway. The Supreme Court held that the hotel, having served the patron to the point of intoxication, had a common law duty to see that he got home safely. There was a breach of that duty for which the hotel was responsible, according to the degree of fault found against it.

[51] In Pilon v. Janveaux (2005), 2005 39863 (ON CA), 203 O.A.C. 345 (C.A.) (“Pilon #1”), Feldman J.A., writing for this court, applied the principle of commercial host responsibility in a case remarkably similar to the present appeal.

[52] In Pilon #1, two people were drinking together at a tavern. They were injured in an ensuing motor vehicle accident. The injured passenger sued both the driver of the vehicle and the tavern. The defendant tavern admitted that it, along with the other defendants, was liable for the accident. However, it did not accept responsibility for the plaintiff’s injuries, in part because the plaintiff had “willingly” accepted a ride when he knew or ought to have known the driver was impaired. The tavern argued that it was not necessary for the jury to apportion fault for the damages among the defendants or to quantify the tavern’s responsibility for over-serving the plaintiff.

[53] The trial judge accepted the tavern’s contention, with the result that the jury was instructed to quantify only the plaintiff’s damages and his degree of contributory negligence.

[54] On appeal, this court concluded that the jury had failed to fully perform its apportionment functions, saying at para. 28 of Pilon #1:

[T]wo aspects of the tavern’s liability should have been identified for the jury: liability for causing or contributing to the accident by its negligent conduct toward the driver, and liability for causing or contributing to the damage by its negligent conduct toward the [passenger]. The jury should have been asked to apportion the degree of fault for each aspect of the liability of the tavern separately, along with the liability of each of the other respondents for the accident and for the damage and of the appellant for the damage.

[55] As the court also noted in Pilon #1, at para. 27, ss. 3 and 6 of the Negligence Act, R.S.O. 1990, c. N.1, as amended, require the apportionment of fault among the parties in situations of contributory negligence. Those sections read as follows:

3. In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.

4. In any action tried with a jury, the degree of fault or negligence of the respective parties is a question of fact for the jury.

ii. Application to the Present Case

[56] As I have already mentioned, the present case is remarkably similar to Pilon #1. As in Pilon #1, the plaintiff and the driver of the car were drinking at a bar before the accident and the plaintiff sued both the driver and the bar for the injuries he suffered as a result of the accident. Just as in Pilon #1, the bar that had been serving the plaintiff and the driver – in this case, Finnigan’s – defended the action on the basis that the plaintiff had been a “willing” passenger in a car driven by a person he knew, or ought to have known, was intoxicated. And, just as in Pilon #1, the trial judge accepted the bar’s contention that there was no need for the jury to separately apportion liability for the accident between the driver of the car and the bar. This court found that to be an error in Pilon #1 and it was an error in this case as well.

[57] Paragraph 28 of Pilon #1 (set out above) makes it clear that the jury should have been instructed to determine Finnigan’s liability for: (1) causing or contributing to the accident, by its negligent conduct toward Knox, and (2) causing or contributing to the damages that McLean suffered, by its negligent conduct toward each of Knox and McLean. The first was not done at all and, as I explain below, the second was done incorrectly.

[58] It is not blind adherence to precedent that leads me to conclude that it was an error to fail to follow the dictates of Pilon #1. Apportionment of liability is a difficult area of the law. For the jury to properly discharge its task of apportioning liability, the jurors need to clearly understand the differences between liability for the accident and liability for the plaintiff’s damages. This clarity begins by having the jury approach the two matters sequentially and in that order: (1) apportionment of liability for the accident, and then (2) apportionment of liability for the plaintiff’s damages.

[59] In apportioning liability for the accident, the jury had to consider only two parties: Knox, as the driver of the car, and Finnigan’s, for having over-served him. On the facts of this case, only those two parties caused or contributed to the accident. Accordingly, no fault could be attributed to the plaintiff for the accident.

[60] In apportioning liability for the damages that McLean suffered as a result of the accident, however, the jury had to decide what degree of fault to attribute to each of Knox, the plaintiff, and Finnigan’s.

[61] Knox’s liability for McLean’s damages flows from his role as driver of the car.

[62] The plaintiff’s liability (contributory negligence) for his damages flows from having “willingly” accepted a ride with Knox when he knew, or reasonably ought to have known, that Knox was impaired and that he might suffer injury as a result of being a passenger in a car driven by an impaired driver. In determining the plaintiff’s liability, the jury must consider the plaintiff’s appreciation of the risk he took in becoming a passenger in the car. But, a passenger’s “willingness” to accept a ride with an impaired driver may arise in part because he or she was drunk. If that drunkenness was caused in part by the commercial host, the commercial host could be found to share responsibility for the passenger’s actions: see Pilon #1, at para. 24.

[63] Thus, Finnigan’s liability for McLean’s damages flows from two separate things: over-serving Knox and over-serving the plaintiff.

[64] The advantage of requiring the jury to quantify liability for the accident and for damages separately and sequentially is evident. The jury’s assessment of a commercial host’s liability for the accident will necessarily inform its apportionment of liability for damages. As this court noted in Pilon v. Janveaux (2006), 2006 6190 (ON CA), 211 O.A.C. 19 (C.A.) (“Pilon #2”)[^1], at para. 12, the degree of the commercial host’s responsibility for allowing the driver to become impaired, as a matter of logic, will normally be similar to the degree of the commercial host’s responsibility for allowing the passenger to become impaired.

[65] This is not to suggest that the jury must necessarily ascribe the same level of responsibility to the commercial host for the accident as for the plaintiff’s damages in every case. After all, the evidence may show any number of differences between the passenger and driver, such as how much they weighed, what they had consumed before they got to the bar, and the quantity and type of alcohol that the two consumed while at the bar.

[66] However, what this sentence does highlight is the relationship between the two apportionment issues. In considering the commercial host’s liability for the accident, the jury will have to make findings about, among other things, the amount that it served the driver and over what period of time. Where the driver and passenger were drinking together at the bar, those findings will be relevant when the jury considers how much the commercial host served the passenger and over what period of time, considerations critical to the jury’s apportionment of liability for the passenger’s damages. As explained above, the degree to which the commercial host over-served the passenger is relevant to the apportionment of liability for the passenger’s damages. Thus, the jury’s findings on the issue of liability for the accident will inevitably influence its allocation of both aspects of the commercial host’s liability for the passenger’s damages, flowing from having over-served the driver and from having over-served the passenger.

iii. Errors in the Jury Questions

[67] For the reasons given, the jury should have been asked: (1) to apportion liability for causing or contributing to the accident between the driver, for driving while intoxicated, and the commercial host, for over-serving the driver: and (2) to apportion liability for causing or contributing to the plaintiff’s damages among the driver, for driving while intoxicated, the plaintiff, for accepting a ride from the intoxicated driver, and the commercial host, for over-serving both the driver and the plaintiff.

[68] The jury was not asked to apportion liability for the accident. As I have explained, in light of Pilon #1 that failure was an error.

[69] In respect of the apportionment of liability for the plaintiff’s damages, while the intent of the jury questions was to have the jury allocate responsibility among Knox, Finnigan’s, and the plaintiff, in my view, the questions are defective.

[70] As counsel for Finnigan’s acknowledged at the oral hearing of the appeal that Question 3(c) cannot be correct, no more need be said about it.

[71] Question 4 is the most significant of the questions, as it requires an allocation of responsibility among Knox, Finnigan’s, and the plaintiff. It asked the jury to state in percentages the degree of negligence that it attached to each party, “[g]iven the deemed admission of liability by the Defendant Matthew Knox, and the admission by the Defendant Finnigan’s of 1% liability”.

[72] This question is simply wrong. It is explicitly premised on Finnigan’s having admitted 1% liability whereas Finnigan’s admitted at least 1% liability. The embedded assumption completely undermined the primary task of the jury, which was to determine the respective degrees of responsibility for the plaintiff’s damages.

[73] It is further wrong as it does not direct the jury to apportion Finnigan’s liability for the plaintiff’s damages flowing from having over-served Knox and from having over-served McLean.

[74] I would add that the questions were in breach of the agreement between the plaintiff and Finnigan’s, entered into before trial, in which Finnigan’s agreed to admit that it was at least 1% liable and that its further liability would be determined at trial.

[75] Finnigan’s argues that the jury instructions cure any errors in the jury questions.

[76] I disagree. In my view, the instructions replicate the errors in the jury questions.

[77] Page 1291 of the trial transcript shows the trial judge instructing the jury both that Finnigan’s had admitted responsibility for “at least” 1% of McLean’s damages (line 2) and that it had admitted responsibility for 1% of those damages (lines 13-15). The two cannot stand together. Whether Finnigan’s was 1% liable or more than 1% liable for McLean’s damages was a critical matter for the jury when deciding apportionment on the issue of liability for McLean’s damages.

[78] And, at p. 1294 of the transcript, lines 11 -12, the trial judge appears to take away the task of apportioning liability between Knox and Finnigan’s from the jury:

[T]he acts or omissions of two or more persons may work concurrently as the effective cause of the injury, and in such a case, each of the participating acts or omissions is regarded in law as a proximate cause, and if you find that to be the case, you must apportion the degrees of negligence between the parties responsible.

Finnigan’s has admitted that it is at least one per cent responsible for causing the injuries suffered by [McLean] by over-serving Knox and Knox is deemed to have admitted that his driving at an excessive speed while impaired was a proximate cause of [McLean’s] injuries. As a result, you do not have to decide this issue as it has been admitted. [Emphasis added.]

[79] Read in context, this instruction appears to tell the jury that they need not decide the respective degrees of fault of Knox and Finnigan’s.

[80] Furthermore, the trial judge never explicitly instructed the jury on how Finnigan’s liability for McLean’s damages could flow both from over-serving Knox and from over-serving the plaintiff.

[81] Finally, in a number of places in the instructions, the trial judge mixes liability between the tortfeasors for causing the accident with issues surrounding McLean’s contributory negligence, thereby lumping the victim in with the tortfeasors, and confusing the very issues the jury was to decide.

[82] In conclusion, as a result of the errors in the jury questions, coupled with the flaws in the jury instructions, I have serious doubt as to the validity of the jury verdicts on the apportionment of liability for the plaintiff’s damages.

iv. The Remedy

[83] The plaintiff argues that in light of the errors in the jury questions, a new trial should be ordered on everything except Finnigan’s admitted liability.

[84] I would not accede to this submission. As I have mentioned, this case is very similar to Pilon #1. In Pilon #1, this court found that the legal errors in the jury instructions would normally result in a new trial being ordered. However, it declined to order a new trial and, instead, decided the issue of apportionment itself. In refusing to order a new trial, the court considered the amount of time that had passed since the accident, the length of the original trial, and the costs involved in a new trial.

[85] Those same considerations apply to the present case. The accident in this case took place in 2005. It is now 2013. Memories will be stale. The trial took place over 13 days and involved extensive medical evidence. The costs involved in a new trial would be very significant. Those costs must be considered alongside the very modest amounts that the jury awarded for damages. Apart from the amount that the jury awarded for future income loss, there was no real challenge to those awards.[^2]

[86] A new trial in a civil case will only be ordered when the interests of justice plainly require it: see Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385, at para. 9. For the reasons given, the interests of justice augur against ordering a new trial. Instead, this court should perform the apportionment task that the jury ought to have been instructed to perform.

[87] If the parties are unable to resolve the apportionment issues, they may make brief written submissions, not to exceed eight pages, within fifteen days of the date of release of these reasons, on the issue of the apportionment of liability for the plaintiff’s damages. In those submissions, the parties should address the impact of any purported apportionment on the statutory deductible.

[88] In regard to the statutory deductible, I recognize that the plaintiff raised this issue in its cross appeal and that I have not dealt with it in these reasons. I have not done so because the issue of the deductible was framed as a matter to be dealt with if the appeal failed. Because I would allow the appeal in part, the precondition to dealing with the issue was not met.

[89] However, the issues of apportionment of liability for the plaintiff’s damages and apportionment for the deductible are interrelated. Thus, it is necessary to hear from the parties on both matters.

[90] In making submissions on the apportionment of liability and the impact on the statutory deductible, I would invite the parties to consider addressing the following two matters in their submissions.

[91] The first relates to the trial judge’s handling of Finnigan’s liability for the deductible. In this regard, the parties should address the correctness of the trial judge’s proposed method of handling this matter, particularly in light of this court’s decision in Sullivan Estate v. Bond (2001), 2001 8584 (ON CA), 55 O.R. (3d) 97.

[92] The second relates to the matter of waiver. Without deciding the matter, in light of the mandatory language of s. 267.5(7) of the Insurance Act, it may be that waiver, in the strict sense of the word, is not available. Nonetheless, defence counsel’s conduct may be relevant to a determination of its liability for the statutory deductible. Counsel may wish to address this consideration and how it impacts on the apportionment of liability for the statutory deductible.

DISPOSITION

[93] Accordingly, I would allow the appeal in part and vary the Judgment to provide $0 for future income loss. I would make no change to the costs award at trial.

[94] I would allow the cross appeal in part and determine the apportionment of liability for the plaintiff’s damages in accordance with the resolution of that issue by the parties, failing which, following receipt of their written submissions on this matter, in accordance with the directions set out above.

[95] Success being divided on appeal and cross appeal, I would make no order as to costs of the appeal and cross appeal.

Released: May 31, 2013 (“E.E.G.”)

“E.E. Gillese J.A.”

“I agree. M. Rosenberg J.A.”

“I agree. Paul Rouleau J.A.”

[^1]: After releasing its initial reasons in Pilon #1, this court gave supplementary reasons in which it apportioned liability for the plaintiff’s damages between him and the tavern.

[^2]: In its notice of cross appeal, the plaintiff listed, as a ground of appeal, the jury’s verdict on each head of damages on the basis the verdicts were perverse, unjust and unreasonable. However, the plaintiff did not pursue this ground beyond the notice.