COURT OF APPEAL FOR ONTARIO

CITATION: Stilwell v. World Kitchen Inc., 2014 ONCA 770

DATE: 20141104

DOCKET: C57348 C57372

Gillese, Pepall and Hourigan JJ.A.

BETWEEN

Lanny Stilwell and Moira Neale

Plaintiffs (Respondents)

and

World Kitchen Inc. and Corning Incorporated

Defendant (Appellants)

Paul J. Pape and Sanam Goudarzi, for the appellant, World Kitchen Inc.

Young Park, for the appellant, Corning Incorporated

Christopher Morrison and Paul J. Cahill, for the respondents

Heard: August 19, 2014

On appeal from the judgment of Justice Ian F. Leach of the Superior Court of Justice, sitting with a jury, dated June 12, 2013.

Hourigan J.A.:

[1] World Kitchen Inc. (“World Kitchen”) and Corning Incorporated (“Corning”) appeal the judgment of Justice Leach, sitting with a jury, awarding the respondents aggregate damages of $1,157,850 for negligence related to product liability.

[2] For the reasons that follow, I would dismiss the appeal in its entirety, save for the appeal of the award of $25,000 in aggravated damages, which award I would set aside.

Background

[3] On September 11, 2000, the respondent, Lanny Stilwell, was washing a glass Visions brand Dutch oven (the "Dutch oven" or the "pot") in his sink when he heard a popping noise and the pot shattered in his hands (the "incident"). As a result of the incident, Mr. Stilwell suffered severe injuries to his wrist.

[4] In January 2002, Mr. Stilwell and his common law wife, the respondent Moira Neale, commenced an action against World Kitchen, alleging negligence and breach of warranty. Corning was added as a defendant in August 2008. The action proceeded as a jury trial.

[5] Corning brought a motion before the trial judge, in the absence of the jury, to dismiss the claim against it on the basis that it was commenced after the expiry of the six-year limitation period and was, therefore, statute barred. In oral reasons, the trial judge dismissed the motion, concluding:

In my view, having regard to all of the circumstances of the case, and having particular regard to the information available to the plaintiffs and their counsel on or before August 18th, 2002, I cannot find that the plaintiffs and their counsel knew or ought to have known all the material facts concerning the advisability of a formal claim against Corning Incorporated more than six years prior to advancement of that claim in 2008. The applicable limitation period accordingly had not commenced and run its course prior to the plaintiffs adding Corning Incorporated to the litigation.

[6] The jury found the defendants (appellants on appeal) 75% at fault for their failure to adequately warn of the dangers associated with the Dutch oven. Mr. Stilwell was found to be 25% at fault for the incident.

[7] The jury assessed Mr. Stilwell’s damages at $1,132,850, including $25,000 in aggravated damages. Ms. Neale’s damages were assessed at $25,000 for loss of care, guidance and companionship.

[8] The jury provided the following answer with respect to the particulars of its finding of negligence:

Not clearly stated the difference between deep versus minor scratches.

Not identified what constitutes a deep scratch and when the consumer should contact manufacturer.

Warning due to accidental breakage from impact and subsequent potential injury should be further emphasized in manual warning and included on exterior of box.

[9] With respect to its finding of contributory negligence, the jury stated:

Based on the balance of probability it is likely that an impact occurred. Evidence from the expert witnesses indicates that a breakage was most likely due to mechanical force such as an impact plus an internal stress.

In addition Mr. Stilwell was experiencing a stressful day and Mr. Stilwell admitted that it was his first time washing the pot (4.5 l vision dutch oven). The pot was large (4.5 l) the obstruction of the tap, plus dimensions of the sink increased the likelihood of an impact occurring.

[10] World Kitchen and Corning appeal the judgment made in accordance with the jury verdict. Corning also appeals the dismissal of its motion to dismiss.

Positions of the Parties

[11] World Kitchen and Corning submit that the jury verdict should be set aside because there was no evidence to support the finding that the alleged failure to adequately warn the respondents caused or contributed to the incident. In particular, they assert that the respondents failed to adduce any evidence that they would have acted differently had they been warned of the potential danger. Moreover, they argue that there is no causal connection between the types of warnings the jury referenced in the verdict sheet and the incident.

[12] The appellants further submit that the trial judge erred in his instruction to the jury regarding aggravated damages. They allege that the trial judge failed to advise the jury that, in order to award such damages, they must be satisfied that any increased injury to the respondents due to the manner in which the injury was inflicted must have occurred as a result of misconduct by the appellants.

[13] Corning also submits that the trial judge erred in finding that the action was commenced against it within the applicable six-year limitation period. Corning’s position is that the trial judge articulated too high a threshold for the level of actual or deemed knowledge required to commence the running of a limitation period.

[14] The respondents submit that the appellants’ argument on causation amounts to an invitation to this court to usurp the role of the jury as trier of fact and to make factual findings that are inconsistent with the jury’s answers. Their position is that the findings of the jury were well supported on the evidence and there is, therefore, no basis for appellate interference.

[15] With respect to the trial judge’s ruling on the limitation period defence, the respondents submit that the trial judge articulated and properly applied the correct test.

[16] The respondents concede that the trial judge erred in his instruction to the jury on the issue of aggravated damages. However, they argue that the only effect of the misdirection was that the jury was instructed to consider increasing the award for general damages to compensate Mr. Stilwell for the manner in which his injury occurred. Therefore, they submit that the $25,000 in aggravated damages should be added to the general damages award.

Issues

[17] The appeal raises the following issues:

(i) Did the trial judge err in finding that the respondents’ claim was not statute barred?

(ii) Should the jury’s liability finding be set aside?

(iii) Should the jury’s award of $25,000 in aggravated damages be set aside or added to the award for general damages?

Analysis

(i) Limitation Period

[18] Corning submits that where the identity of a potential defendant is in question, the limitation period commences when the plaintiff has, or is deemed to have, prima facie grounds to infer that the relevant acts or omissions were caused by a particular party: Kowal v. Shyiak, 2012 ONCA 512, 13 C.L.R. (4th) 7, at para. 18.

[19] Corning concedes that the determination of when the plaintiff has, or is deemed to have, such prima facie grounds is primarily a question of fact and that the corresponding standard of review by an appellate court is one of palpable and overriding error. However, Corning argues that the articulation and application of this legal threshold must be reviewed on a standard of correctness. The motion judge, it submits, erred in articulating too low a standard of reasonable diligence on the part of the respondent in investigating its potential claim. Corning claims that this error is extricable from the trial judge’s findings of fact and is, therefore, reviewable according to a standard of correctness.

[20] I would reject this argument for the following reasons.

[21] Counsel for Corning conceded in oral argument that the trial judge articulated the correct legal issue in his ruling when he stated that “the real question to be answered is whether the plaintiffs and/or their counsel learned that they had a cause of action against Corning Incorporated, or through the exercise of reasonable diligence ought to have learned that they had a cause of action against Corning Incorporated prior to August 19th, 2002.”

[22] Corning submits that the trial judge subsequently erred when he stated that the material fact in question was the “identity of the party likely to bear responsibility for that alleged Visions Dutch oven,” and when he concluded that he could not find that the respondents knew or ought to have known the “material facts concerning the advisability of a formal claim against Corning”.

[23] In my view, the trial judge made no error in principle in his analysis of the limitation defence. There is nothing in the impugned comments of the trial judge, or in his ruling as a whole, that evidences any change in the formulation of the test. I reject Corning’s submission that the phrases “likely to bear responsibility” or “advisability of a formal claim” indicate any material departure from the prima facie threshold.

[24] Having failed to identify a legal error, Corning’s argument essentially amounts to an attack on the trial judge’s factual findings that supported his conclusion that the respondents exercised reasonable diligence in attempting to identify the proper defendants. In my view, the trial judge’s factual findings were amply supported by the evidence, including:

(i) the Internet searches conducted by the respondents and their counsel, which suggested World Kitchen was responsible for the Vision products;

(ii) the email correspondence between the respondents and World Kitchen, which also suggested World Kitchen, if anyone, was responsible for the products;

(iii) the letter from counsel for World Kitchen to counsel for the respondents dated March 19, 2002, which stated that “the correct defendant is World Kitchen Inc.”;

(iv) the steps taken by counsel for the respondents during the ensuing examinations for discovery to follow up and confirm that the correct defendant had been named; and

(v) the information in the trademark search commissioned by counsel for the respondents, which, in the words of the trial judge, “indicated a progression from various Corning entities to a World Kitchen entity”.

[25] Based on this evidence, the trial judge concluded that there was “a good deal of support for the plaintiffs’ position that, in these early stages of the investigation and litigation, the available information pointed to World Kitchen as the entity likely to bear responsibility, if any, for the Visions cookware”.

[26] Contrary to the submission made by counsel for Corning, the trial judge did not ignore the evidence that Corning says should have alerted the respondents to a potential claim. Rather, the trial judge considered that evidence and declined to draw the inferences urged upon it by Corning.

[27] In considering Corning’s arguments, the trial judge also recognized the practical difficulties the respondents faced in trying to identify the correct defendant in the context of a very complicated corporate organizational structure. In these circumstances, the trial judge concluded that the respondents' reliance on the representation by World Kitchen that they had sued the correct party was reasonable.

[28] On the evidence, it was open to the motion judge to come to the conclusion he did and Corning has failed to identify any palpable or overriding error in the trial judge's limitation period analysis. There is, therefore, no basis for appellate interference with the motion judge's ruling regarding the limitation period.

(ii) Causation Finding

[29] Other than the issue of aggravated damages, which will be discussed below, the appellants do not take issue with the jury charge. Rather, the focus of their argument is that the jury’s findings are inconsistent with the evidence presented at trial. In particular, the appellants submit that there was no evidence of causation between the alleged failure to warn and the incident.

[30] In support of their position, the appellants point to the answers from the jury in the verdict sheet. They submit that the evidence does not support a causal connection between the types of warnings the jury referenced in its answer and the incident. Their position is that since the jury did not find any negligence in the design or manufacture of the pot and there was no evidence of scratches, a warning to discontinue use of the pot if it was scratched would have had no effect.

[31] The appellants also argue that a more comprehensive warning would not have altered the behaviour of Ms. Neale, who, according to the evidence, was extremely safety conscious, or the behaviour of Mr. Stilwell, who never read the warnings.

[32] In considering these submissions, it is important to have regard to two well-developed and long-standing principles of law related to civil jury trials.

[33] First, the standard of review of civil jury verdicts is exceptionally high. A civil jury’s verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict: Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, at para. 49; Goodwin (Litigation Guardian of) v. Olupona, 2013 ONCA 259, 305 O.A.C. 245, at para. 23.

[34] Second, a jury’s verdict is entitled to a fair and liberal interpretation in light of the evidence and of the circumstances: Malone v. Trans-Canada Airlines, 1942 CanLII 115 (ON CA), [1942] O.R. 453, at para. 25 (C.A). Answers by a jury should be given the fullest possible effect and supported, if possible, by any reasonable construction. A new trial should be ordered only where the jury seems to have confused the issues at trial, it is doubtful whether the jury paid attention to the real point in issue, and the questions answered or unanswered leave the real issue in doubt and ambiguity: Jamieson v. Harris (1905), 1905 CanLII 71 (SCC), 35 S.C.R. 625, at para. 2; Graham v. Regent Motors Ltd., [1939] O.J. No. 163, at para. 9 (Ont. H. Ct. J.).

[35] This approach to the review of jury answers is entirely justified on policy grounds. Our courts recognize that civil juries are made up of laypeople who are untrained in the law, and that allowances for this lack of training must be made in considering their answers to questions. It is also important to remember that civil juries are instructed not to give reasons for their decisions, so their answers must be read in this context.

[36] The appropriate degree of judicial deference to be applied in the consideration of jury answers and verdicts was described by Laskin C.J.C. in his dissent in Wade v. C.N.R., 1977 CanLII 194 (SCC), [1978] 1 S.C.R. 1064, at pp. 1069-1070:

Appeal Courts do not fine-comb jury answers but accord them the respect of a common sense interpretation even where there may be some ambiguity in the answers.… It is always timely to be reminded that juries do not write reasons for judgment, and their answers must be taken against the background of the evidence from which they are entitled to select, without manifesting their selection, what is credible, what is significant, what is persuasive to them. It is very often easy for an appellate Court, in the leisurely scrutiny of the transcript, to find significance in pieces of evidence to contradict jury findings, and in so doing to usurp the jury’s function. What an appellate Court may believe from a reading of the transcript may be the very things which a jury disbelieved or believed in part only. It is one thing to interfere with a jury’s verdict where there is simply no evidence to support its findings or to support a critical one; it is a different thing, and not to be encouraged, to interfere with its findings where there is evidence, however slight, on which they may be based, but where because of offsetting evidence a question of credit and weight arises. These are matters for the jury alone.

[37] With these principles in mind, I turn to a consideration of the jury’s verdict in the present case. As a starting point, it is useful to put the jury’s verdict and their answers to the questions posed in the context of the evidence they heard at trial.

[38] There was evidence that prior to Ms. Neale's purchase of the pot, the appellants were aware of over 2,000 reported injuries related to the use of the Visions products.

[39] The warning regarding breakage was not found in the warning section of the manual or on the outside of the box, but in the “Remember” section of the manual. It indicated only that the product was subject to breakage if dropped or subjected to hard impact.

[40] The evidence at trial established that Ms. Neale was extremely careful in her use and care of the product. She never stacked the pot, never used the pot in a manner that was contrary to the instructions (e.g. deep frying), never dropped or banged the pot, and never washed it in the dishwasher.

[41] At the time of the incident, Mr. Stillwell was in the process of hand-washing the Dutch oven. This care for the product was specifically mandated by the product's instruction manual.

[42] The glass experts provided evidence at trial that the Dutch oven could have been suffering from an internal stress; however, they disagreed about the likelihood that an internal stress was, in fact, present. The appellants' expert opined that there likely was no internal stress while the respondents’ expert held the opposite view.

[43] There was also evidence that, following the incident, Ms. Neale immediately stopped using the cookware. She did not throw out the other pots in the set because she was fearful that someone would find them and use them, which she believed would be unsafe.

[44] I turn now to the appellants’ argument that there is no connection between the alleged failure to provide a better warning regarding deep versus minor scratches and the incident.

[45] I disagree with this submission. There were three theories advanced at trial regarding the cause of the breakage: an impact hard enough to break the Dutch oven, an impact plus an internal stress, and a spontaneous break. There was expert evidence that a deep scratch could cause or be a sign of internal stress.

[46] On a fair and liberal reading of the verdict sheet, it appears that the jury rejected Mr. Stilwell’s testimony that he did not bang the pot when he was cleaning it and accepted the middle-ground theory that the breakage occurred due to a combination of an internal flaw and an impact. This finding was open to the jury to make on the evidence before them.

[47] It was also open to the jury to find that, despite the fact that there was no evidence of anyone noticing a deep scratch in the Dutch oven, such a scratch could have been present and contributed to the internal stress.

[48] The appellants argue that because the respondents were aware the product would break if struck hard enough, and because Ms. Neale was extremely careful with the Dutch oven, an enhanced warning would have made no difference in how the respondents used and cared for the product.

[49] I accept the submission of the appellants that there was no direct evidence as to how the respondents would have acted had an adequate warning been given. However, this does not end the analysis. The jury, like any trier of fact, was permitted to make inferences based on the evidence. Specifically, it was open to the jury to infer that Ms. Neale would not have purchased the product had she been adequately warned.

[50] A sufficiently clear product warning may be a significant factor in a consumer's decision to purchase a product. Based on the evidence that Ms. Neale was extremely cautious in her use and care of the product, there was an available inference that she would not have purchased the cookware had she been adequately warned that the combination of an internal stress and an impact while caring for the product in the manner recommended by the manufacturer could cause catastrophic failure, exposing the user to risk of significant injuries.

[51] In my view, there was an evidentiary basis for the conclusion reached by the jury. While a different jury, or a judge sitting alone, may have drawn different inferences and reached different conclusions, I am not satisfied that the verdict is plainly unreasonable and unjust or that, in reaching it, the jury was not acting judicially. Therefore, I would not give effect to this ground of appeal.

(iii) Aggravated Damages

[52] It is common ground among the parties that the trial judge erred in his charge to the jury on the issue of aggravated damages. The trial judge instructed the jury that if they found that Mr. Stilwell suffered anxiety, nervousness and an initial fear of glass objects as a result of the manner in which the injury occurred, an award of aggravated damages was appropriate to compensate him for those injuries. The trial judge erred in failing to advise the jury that, in order to award such damages, they had to be satisfied that any increased injury to Mr. Stilwell due to the manner in which the injury was inflicted had to be tied to – that is, be a result of – particularly reprehensible misconduct by the appellants.

[53] The respondents submit that, while the types of damages described in the jury charge are not compensable as aggravated damages, they are recoverable as non-pecuniary general damages flowing from the respondents’ negligent conduct. Consequently, they submit, that the only error made by the trial judge was in mislabelling the damages.

[54] I cannot accept the respondent’s submission on this point. The fact remains that the jury was provided with an incorrect instruction regarding aggravated damages. They were also provided separate instructions regarding general non-pecuniary damages and awarded Mr. Stilwell $100,000 under this head of damages.

[55] It is entirely speculative to assume, as the respondents invite us to do, that had they been properly instructed, the jury would have increased the general damages by $25,000.

[56] Therefore, I would set aside the award of aggravated damages.

Disposition

[57] I would allow the appeals in part and set aside the $25,000 aggravated damages award.

[58] With respect to costs, the respondents submitted that, if successful on all issues, they should be entitled to total partial indemnity costs of approximately $40,000, and if they were not successful on the aggravated damages issue, then they should be entitled to total partial indemnity costs of $30,000. The appellants did not take issue with these figures. Accordingly, I would order that the appellants are jointly and severally liable for the respondents’ costs in the amount of $30,000, all inclusive.

Released: November 4, 2014 “E.E.G.”

“C. William Hourigan J.A.”

“I agree E.E. Gillese J.A.”

“I agree S.E. Pepall J.A.”