COURT OF APPEAL FOR ONTARIO

CITATION: Sant v. Sekhon, 2014 ONCA 623

DATE: 20140908

DOCKET: C57233

Weiler, Laskin and van Rensburg JJ.A.

BETWEEN

Evan Matthew Sant, a Person Under Disability, by his Litigation Guardian,

Elisabeth Sant, Elisabeth Sant, personally,

Christopher Sant and Andrew Sant

Plaintiffs (Respondents)

and

Jharmal Singh Sekhon, Capital Transport Corporation,

Canada Drayage Inc., Joel Sant and Oakwood Services Ltd.

Defendants (Appellants)

Hillel David, Jim Tomlinson and Adrian Nicolini, for the appellants

Earl A. Cherniak, Q.C. and Jasmine Akbarali, for the respondent

Heard and released orally: September 2, 2014

On appeal from the judgment of Justice Leonard Ricchetti of the Superior Court of Justice, dated May 23, 2013.

ENDORSEMENT

[1] The respondent, Evan Sant, was a passenger in a pickup truck driven by Joel Sant that entered an intersection on a red light and was hit by a freightliner driven by Mr. Sekhon going through the intersection on the green light. In a negligence action brought by Evan Sant for the injuries he sustained, the jury found Joel Sant 95% liable for the accident and Mr. Sekhon 5% liable.

[2] Mr. Sekhon and the owners of the transport truck he was driving, Capital Transport Corporation and Canada Drayage Inc., appeal.

[3] The grounds of appeal and our disposition of them are as follows.

(1) Was the jury’s verdict regarding Sekhon “so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it”?

[4] The jurisprudence on the standard of care of a driver with a green light is not in dispute. A driver with a green light is free to go through the intersection assuming that drivers approaching the intersection from other directions and who necessarily are being shown a red light will stop. However, a statutory right of way does not absolve a driver from exercising proper care. A driver should not exercise his or her right of way 1) if the driver becomes aware or should become aware that the driver without the right of way is going to go through the intersection and 2) if the circumstances are such that the driver with the right of way had the opportunity to avoid the collision: Behmanesh v. Yokhana, 2011 ONSC 4950, at para. 15; Goodwin v. Wrycraft, 1965 CanLII 219 (ON CA), [1966] 1 O.R. 26 (C.A.), at para. 16, Vertulia v. Kratz, 1956 CanLII 385 (ON CA), [1956] O.R. 884, at para.18.

[5] The appellant submits that nothing in the circumstances alerted or should have alerted him to the fact that the driver of the pickup was going to go through the red light. We disagree. There was evidence, such as the evidence of the independent witness Mr. Miller and from the respondent’s expert Mr. Raftery, from which the jury could infer that a reasonably prudent driver should have been aware of the hazard posed by the pickup. Similarly, it was open to the jury to accept Mr. Raftery’s evidence with respect to causation. This ground of appeal is dismissed.

(2) Did the trial judge misdirect the jury on the element of causation and did the jury fail to make a cogent finding on the critical issue of causation?

[6] The appellant submits that the following portion of the trial judge’s charge to the jury was in error in that he effectively instructed the jury to ignore the element of causation:

It is not necessary for you to find that the driver with the green light could have or should have become aware the driver of the other vehicle was going to go through the red light any earlier than he actually became aware of it.

[7] In this portion of his charge the trial judge was instructing the jury with respect to question #5, the question dealing with standard of care. Counsel for the appellants did not object to this portion of the charge at trial. When the charge is read in context and as a whole, the trial judge did not misdirect the jury on the issue of causation.

[8] There is also no merit to the appellants’ argument that the jury of necessity would have been misled by this passage because of the form of their answer to question # 5. The fact that the jury provided more extensive detail regarding Joel Sant’s negligence as opposed Mr. Sekhon’s does not necessarily mean that an inference can be drawn that the jury was confused. In the context of the question put to the jury and the trial judge’s charge, the jury’s answer was entirely appropriate.

(3) Was there improper and inflammatory cross-examination of Sekhon which may have influenced the jury to decide as it did?

[9] During cross-examination of Mr. Sekhon, counsel for Joel Sant repeatedly asked Mr. Sekhon whether his lawyers had instructed him to provide particular answers during his testimony. This line of questioning was improper since its only purpose was to suggest to the jury that Mr. Sekhon’s evidence had been fabricated. There was no basis for that suggestion.

[10] In order for appellate intervention to be justified, however, the improper conduct must be “sufficiently serious to undermine the fairness of the trial or put the validity of the verdicts into real doubt”: Abdallah v. Snopek (2008), 2008 CanLII 6983 (ON SCDC), 89 O.R. (3d) 771 (C.A.), at para. 39 quoting Rogacki v. Belz (2004), 2004 CanLII 21439 (ON CA), 243 D.L.R. (4th) 585 (Ont. C.A.), at para 22 leave to appeal denied (2005), 339 N.R. 197 (S.C.C.). The cross-examination questions the appellants object to do not meet this standard.

[11] Accordingly, the appeal is dismissed.

Costs

[12] The costs of the appeal are to the respondents and are fixed in the amount of $30,000 inclusive of disbursements and all applicable taxes.

“K.M. Weiler J.A.”

“John Laskin J.A.”

“K. van Rensburg J.A.”```