Court of Appeal for Ontario

CITATION: Vanderbeke v. O'Connor, 2013 ONCA 665

DATE: 20131101

DOCKET: C55163

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Keith Vanderbeke

Plaintiff (Appellant)

and

Michael O’Connor, Howard Mutual Insurance Company

Defendants (Respondents)

James J. Mays and Anna Szczurko, for the appellant

Michael J. Huclack and David Visschedyk, for the respondent

Heard: October 28, 2013

On appeal from the judgment of Justice Terrence L.J. Patterson of the Superior Court of Justice, dated February 2, 2012.

By the Court:

[1] This appeal arises out of a motor vehicle collision between the appellant and the respondent Michael O’Connor on August 29, 2003. The appellant’s vehicle was rear-ended and he suffered injuries, including the exacerbation of a pre-existing lower back injury.

[2] The focus of the four-week jury trial was on whether the injuries suffered by the appellant prevented him from returning to his employment as an electrician with Chrysler Canada.

[3] The jury awarded the appellant non-pecuniary general damages of $50,000, damages for future wage loss in the amount of $67,000 and pre-judgment interest for a total award of $114,216.44.

[4] On appeal, the appellant submits that the trial judge made the following errors: (i) admitting into evidence a statement of claim issued by the appellant against the Workplace Safety and Insurance Board (“WSIB”); (ii) failing to strike the jury or to provide sufficient and balanced corrective comments to the jury as a result of the cross-examination of the appellant’s spouse, Diane Mifflin; (iii) failing to provide correcting instructions and comments to the jury concerning the closing address of the respondents’ counsel; and (iv) failing to provide a proper charge to assist the jury in understanding the law, issues and evidence. The appellant submits that the cumulative effect of these errors was that trial fairness was compromised to a degree sufficient to result in a substantial wrong or miscarriage of justice and that a new trial is required.

[5] The respondents cross-appeal on the issue of costs. They submit that the trial judge failed to appreciate rule 49.10 (2) of the Rules of Civil Procedure or failed to follow his own Rule 49 ruling by awarding disbursements to the appellant for the period after the delivery of the respondents’ settlement offer.

THE APPEAL

1. Admission of the Statement of Claim

[6] Prior to the accident the appellant had made a series of claims for compensation to the WSIB as a result of workplace injuries. In 2002 after compensation was cut off by the WSIB he commenced an action against the WSIB and the Province of Ontario. In that proceeding he alleged an improper denial of benefits by the WSIB and took the position that he was disabled. The pleading was drafted by the appellant without the assistance of counsel and contained intemperate comments and serious allegations against the WSIB.

[7] At trial the appellant objected to the admission of the document on the basis that its prejudicial impact outweighed any relevance. The trial judge admitted the statement of claim in evidence. The cross-examination of the appellant on the statement of claim focused not on the injury that was the subject of the claim, but on the appellant’s conduct in commencing the claim. During cross-examination no objection was made by counsel for the appellant regarding any of the questions asked on this issue.

[8] The appellant submits that the admission into evidence of the statement of claim and the cross-examination thereon subjected him to ridicule and invited emotional decisions by the jury based on irrelevant considerations. We disagree.

[9] The trial judge admitted the document, apparently on the basis that it was relevant to the issues of general damages and economic loss. He also advised counsel that he would hear from them if they wished to have the jury given a specific instruction regarding the document either in his final charge or as a mid-trial charge. Counsel for the appellant did not raise with the trial judge the issue of a correcting instruction either prior to or after the delivery of the final charge.

[10] With respect to the use of the document, counsel for the appellant submits that it was used for an improper purpose unrelated to the basis upon which it was admitted. However, counsel did not object at trial to the questions asked in cross-examination regarding the claim or to the references made to it in the closing submissions of counsel for the respondents. While the failure to object is not fatal, it is a significant factor in a determination of whether the impugned conduct of counsel warrants appellate intervention.

[11] The admission of the statement of claim into evidence was a decision within the trial judge’s discretion. We see no basis to interfere with the manner in which he exercised his discretion. We do note, however, that the statement in his ruling to the effect that the relevancy of the document was a matter for determination by the jury was incorrect and inconsistent with the evidentiary gatekeeper role played by a trial judge.

2. Cross–Examination of Diane Mifflin

[12] Ms. Mifflin was served with a summons to witness requiring her to produce, among other things, documents related to a corporation that owned a family farm where the appellant resides. She did not produce those documents.

[13] During the cross-examination of Ms. Mifflin, counsel for the respondents repeatedly accused her of “intentionally flouting the authority of the court” and concealing evidence. She explained that she did not believe that she was a director of the corporation and was therefore not required to produce the documents. In fact, she was a director of the corporation. The trial judge stated on the record and before the jury that he accepted her evidence that she did not believe that she was a director of the corporation.

[14] Ms. Mifflin was also cross-examined regarding several letters she wrote to various doctors and insurers requesting that they correct errors in their reports regarding her spouse. Counsel for the respondents continuously suggested before the jury that Ms. Mifflin was attempting to influence these parties. In response, Ms. Mifflin stated that she was only endeavouring to correct factual errors in the reports.

[15] At trial the appellant brought a motion to strike the jury relying upon the prejudicial impact of this evidence. That motion was denied.

[16] The appellant submits that while the trial judge attempted to make some form of balancing comments, the comments were insufficient and that the references made to “hiding” and “influencing” were highly prejudicial. According to the appellant, in declining to strike the jury the trial judge erred in failing to fully analyze the prejudice arising from the comments during the cross-examination of Ms. Mifflin.

[17] We would not give effect to this ground of appeal. A trial judge’s decision regarding whether to strike a jury will be afforded considerable deference. An appellate court will only interfere with the trial judge’s discretion in that regard where it was exercised capriciously, arbitrarily or was based on incorrect or inapplicable principles of law: see Cowles v. Balac, 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.). There is no suggestion that the decision of the trial judge not to strike the jury was capricious or arbitrary.

[18] We are also not satisfied that the court exercised its discretion based on a legal error. In denying the motion to strike the jury, the trial judge correctly relied upon the decision of the Supreme Court of Canada in Hamstra v. B.C. Rugby Union, 1997 CanLII 391 (SCC), [1997] 1 S.C.R. 1092, in which the court held that the discharge of a jury is a remedy of last resort to be granted only if a substantial wrong or miscarriage of justice has foreclosed the possibility of a fair trial with the jury.

[19] The trial judge was not obliged to provide a correcting instruction or to intervene in the cross-examination. A court has an obligation to prevent cross-examination which is abusive, unduly repetitive or inflammatory, or which delves into irrelevant matters. Otherwise courts grant counsel wide latitude in conducting cross-examination. In the present case we fail to see how the cross-examination was improper. Ms. Mifflin did not produce the required documentation requested pursuant to a valid summons and took no steps to quash the summons in whole or in part. There was nothing impermissible in counsel cross-examining her on this issue or the issue of her correspondence with the doctors and insurers. Both categories of questions were relevant to her credibility as a witness and the questions related to the farm were relevant to the issue of potential income received by the appellant from the farming operations.

[20] We note as well that if counsel wished to rely upon the letters to impeach Ms. Mifflin’s credibility he was obliged, pursuant to the rule in Browne and Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), to put those letters to her in cross-examination in order to afford her the opportunity to respond. That is precisely what was done in this case.

3. Closing Address of the Respondents’ Counsel

[21] Counsel for the respondents is alleged to have made numerous statements of personal belief and opinion, along with unfounded and inflammatory allegations in his closing submission. The appellant submits that those references were designed to prejudice the jury against the appellant based on improper considerations and that the trial judge’s failure to provide any direction in his charge regarding these comments amounted to a legal error. We disagree.

[22] In the present case, the comments made by counsel were directed to the appellant’s credibility, which was a critical issue at trial. While certain comments made by the respondents’ counsel were factually inaccurate (e.g. regarding who was served with the summons to witness) and included statements of opinion, we do not conclude that they individually or cumulatively required the trial judge to provide a correcting instruction to the jury.

[23] It is also significant that there was no objection made by the appellant to the closing address and no request for an instruction by the trial judge. There is no absolute rule that a failure to object to the contents of a jury charge in a civil trial will estop an appellant from raising an objection, but, “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 (C.A.). Moreover, as this court found in Vokes Estate v. Palmer, 2012 ONCA 510, 294 O.A.C. 342: “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.” We do not conclude that the comments made by the respondent’s counsel rise to the level of a substantial wrong or miscarriage of justice requiring a new trial.

4. Jury Charge

[24] The appellant submits that the trial judge did not properly explain the interplay of WSIB benefits, accident benefits, employment benefits and the tort system in his charge. In addition, the appellant submits that the trial judge erred in relying upon a summary of the evidence supplied by counsel.

[25] We reject this ground of appeal for the following reasons. First, there is no rule that in a civil jury trial the judge is required to review the facts in a jury charge. Nor is there any authority for the proposition that the failure of the trial judge to review the facts necessarily requires an appellate court to order a new trial: see Berthiaume-Palmer v. Borgundvaag, 2010 ONCA 470, 273 O.A.C. 397. In the present case there was a review of the facts as supplied by counsel. The trial judge was under no obligation to supplement those facts if he chose not to do so. Indeed, the appellant has not indicated what relevant or necessary facts were omitted from the charge.

[26] Second, as noted above, in the absence of an objection from counsel to the form of the jury charge, appellate interference is only warranted where a substantial wrong or miscarriage of justice has occurred. The appellant has not met his onus in this regard. The charge contained a review of the law, the applicable standard of care and the issues. While the trial judge could have taken steps to more fully explain some of the legal issues, we do not conclude that the charge was so deficient that it constitutes a substantial wrong or miscarriage of justice.

5. Conclusion

[27] It follows from the foregoing analysis that we are not persuaded that the way in which the trial was conducted amounts to a substantial wrong or miscarriage of justice requiring a new trial.

THE CROSS-APPEAL

[28] The respondents seek leave to appeal the decision of the trial judge regarding costs. We are satisfied that there is good reason to doubt the correctness of the decision regarding the costs as the trial judge’s decision on costs appears to be internally inconsistent. He concluded that the settlement offer made by the respondents on February 9, 2011, was more favourable to the appellant than the result achieved at trial. On this basis he held that “the plaintiff is entitled to costs up to February 9, 2011, and the defendant is entitled to his costs thereafter.”

[29] The trial judge went on to award to the appellant’s first counsel fees fixed at $50,000 plus tax and $20,000 plus tax in disbursements. The trial judge awarded fees to the appellant’s second counsel for the period from November 10, 2009, to February 11, 2011, in the amount of $30,000 plus tax. The respondents take no issue with these decisions by the trial judge.

[30] Where the respondents take issue with the costs award is the trial judge’s decision to order payment of disbursements of $50,000 plus tax for the appellant’s counsel for the period from November 10, 2009 to February 11, 2011. The issue is that the appellant’s bill of costs for that period only claims disbursements of $7,069.65 plus tax. By the completion of trial the total disbursements incurred by the appellant were in excess of $50,000.

[31] It is unclear from the reasons given by the trial judge whether he intended to differentiate between fees and disbursements and exercise his broad discretion to award disbursements for the period after the service of the settlement offer. Alternatively the award for disbursements may have been a typographical error. It does not appear to be consistent with his ruling that the appellant would be entitled to his costs for the period up to February 9, 2011, and that the respondents would be entitled to their costs thereafter.

[32] The onus is on the appellant on the cross-appeal to prove an error by the trial judge. Given the state of the record before us we are unable to determine whether an error was made. Accordingly, the appellant on the cross-appeal has not met his onus and the cross-appeal must be dismissed.

DISPOSITION

[33] For the foregoing reasons, the appeal and cross-appeal are dismissed, with costs to the respondent fixed at $15,000, inclusive of disbursements and applicable taxes.

Released: November 1, 2013 “JCM”

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”

“C. William Hourigan J.A.”