COURT OF APPEAL FOR ONTARIO

CITATION: Hoang v. Vicentini, 2016 ONCA 723

DATE: 20161005

DOCKET: C55389

Laskin, Hourigan and Brown JJ.A.

BETWEEN

Christopher Hoang and Danielle Hoang, both minors by their Litigation Guardian, San Trieu, and San Trieu, personally

Plaintiffs (Appellants)

and

Adriano Vicentini, Ford Credit Canada Leasing Company and Can Hoang

Defendants (Respondents)

Geoffrey D.R. Adair and Gord McGuire, for the appellants

Kerri Kamra, for the respondent Can Hoang

David A. Zuber and Joshua Henderson, for the respondent Adriano Vicentini

S. Wayne Morris and Melissa Miles, for the respondent The Personal Insurance Company

Bruce R. Mitchell, for the respondent Ford Credit Canada Leasing Company

Heard: April 13, 2016

On appeal from the judgment of Justice Darla A. Wilson of the Superior Court of Justice, dated March 9, 2012.

Brown J.A.:

I. Overview

[1] On August 6, 2004 the respondent, Can Hoang, drove his six-year old son, Christopher, one of the appellants, and three other children to downtown Toronto for a planned outing to Centre Island. Hoang let the children out of the car at the intersection of Yonge Street and Queen’s Quay Boulevard, across from the ferry terminal, before parking the car. As Christopher began to walk across Yonge Street, a few feet behind the other children, a gust of wind blew his hat off his head into the intersection. Christopher ran after his hat and into the intersection where he was struck by a vehicle driven by the respondent, Adriano Vicentini. Christopher suffered significant injuries.

[2] Christopher brought an action against his father, Vicentini, and the respondent, Ford Credit Canada Leasing Company, the owner of the Vicentini vehicle. Christopher was joined in his action by his minor sister, Danielle Hoang, and his mother, San Trieu, both of whom asserted claims for loss of care, guidance and companionship pursuant to the provisions of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”).

[3] Following a 38-day trial, the jury found that Hoang negligently caused the accident and his son’s injuries. The jury assessed Christopher’s damages at $150,000 for non-pecuniary damages and $684,228.22 for future care costs. Christopher’s mother, the appellant San Trieu, was awarded damages under the FLA of $20,000; the FLA claim of Christopher’s sister, Danielle, was dismissed. As well, the action was dismissed as against Vicentini and Ford Credit.

[4] The trial judge ordered the plaintiffs to pay partial indemnity costs to Vicentini fixed at $435,214.19 and to Ford Credit in the amount of $173,695.39. She also ordered Hoang to pay the plaintiffs their partial indemnity costs fixed at $899,750.

[5] The plaintiffs appeal, asking this court to order a new trial on the issue of the liability of Vicentini and Ford Credit and increase the damages for future care costs to $1.1 million. The appellants also seek orders requiring The Personal Insurance Company (“The Personal”), Hoang’s vehicle insurer, to pay the costs the trial judge awarded to them, Vicentini and Ford Credit.

[6] Hoang abandoned his cross-appeal that sought to dismiss the action as against him.

[7] The appellants advance six main grounds of appeal:

(i) The trial judge erred in her rulings concerning the scope of evidence admissible on the issue of the operation of the brakes on Vicentini’s vehicle;

(ii) The trial judge erred in admitting certain evidence from human factors experts;

(iii) The trial judge erred in failing to charge the jury on the issue of the operation of the brakes and leave that issue with the jury for its consideration;

(iv) The trial judge erred in her instructions to the jury on the use they could make of a chart appellants’ trial counsel used on the issue of future care costs;

(v) The trial judge erred in awarding costs against the minor plaintiff, in awarding separate costs to each of Vicentini and Ford Credit, and in refusing to grant a Sanderson Order; and,

(vi) Trial counsel for Hoang, whom The Personal appointed, was in a position of conflict during the trial. That conflict might have contributed to the denial of Christopher’s right to a fair trial. The appropriate remedy is for this court to require The Personal to pay all costs awarded at trial to the various parties.[^1]

[8] The appellants also brought a motion for leave to adduce fresh evidence consisting of an affidavit sworn by Hoang describing the history of his dealings with the defence counsel The Personal appointed, as well as with his personal counsel. No objection was taken to the court considering this evidence; indeed, Vicentini included Hoang’s affidavit in his appeal book and compendium. Consequently, I would grant the motion to adduce fresh evidence, and I have taken into account the chronology of events described in the fresh evidence.

[9] For the reasons set out below, I would dismiss the appeal on the issues of liability and damage. I would, however, allow the appeal on costs to the extent only of varying the judgment so that the amounts ordered payable by the minor appellants are payable by their litigation guardian, San Trieu, personally and in her capacity as litigation guardian.

II. Issues concerning the condition of the Vicentini vehicle’s brakes

A. Overview

[10] At the time of the accident, Vicentini was travelling westbound on Queen’s Quay. He testified that when he was about three metres from the white stop line at the Yonge St./Queen’s Quay intersection, he suddenly saw a blue object blow into the intersection from the north side crosswalk. A second later, he saw a small boy running out from the crosswalk. Vicentini applied his brakes hard, but the right front corner of his car struck the boy, who disappeared under the car.

[11] Shortly after the accident, Police Accident Reconstruction Specialist Detective De Los Rios arrived at the scene and conducted his investigation.

[12] The police impounded Vicentini’s vehicle. Three days after the accident a police automotive service technician, Sergio Grisolia, inspected it for mechanical fitness. As part of his inspection, Grisolia road tested the vehicle for brake performance.

[13] Both De Los Rios and Grisolia were called to testify at trial. As well, Vicentini and the appellants called accident reconstruction litigation experts, Jamie Catania and James Hrycay.

[14] The appellants submit the trial judge erred by:

(i) refusing to allow Grisolia to comment on his findings about the car’s brake function because his safety inspection report did not contain any opinion on brake functioning;

(ii) allowing De Los Rios to opine the brakes operated properly at the time of the accident notwithstanding he was not qualified as an expert; and

(iii) instructing the jury in her charge that the brakes had nothing to do with the accident notwithstanding the reverse onus on Vicentini and evidence of material defects in his vehicle.

B. The admissibility of Grisolia’s evidence

The state of the evidence prior to trial

[15] Grisolia completed portions of a Vehicle Mechanical Examination Request form (the “Examination Form”) recording the results of his inspection. On the form, he indicated that he found defects and he had road tested the car. Regarding the brakes, Grisolia recorded that both the “friction material” and “mechanical components” were “unsatisfactory,” commenting that “front calipers sliders seized.” Grisolia also noted that several elements of the brakes were “satisfactory,” including drums/discs and service brake performance.

[16] In preparing his Collision Reconstruction Report, De Los Rios reviewed Grisolia’s Examination Form and commented:

The vehicle was found in satisfactory mechanical condition. Notwithstanding the satisfactory mechanical status, one item was identified as unsatisfactory, namely, front caliper slider seized. Even though the above mentioned component was seized the vehicle was able to brake as was evident at the collision scene by way of two distinct parallel tire marks…

[17] The appellants’ accident reconstruction expert, Hrycay, reviewed the De Los Rios Report and Grisolia’s Examination Form. Neither of the two expert reports Hrycay prepared suggested that the condition of the brakes on the Vicentini vehicle contributed to the collision. Instead, both reports focused on Vicentini’s driver perception-reaction time. Hrycay expressed the opinion that had Vicentini applied his brakes at the maximum rate when he first saw Christopher’s hat, he could have avoided striking the boy.

[18] During the course of trial preparation, appellants’ trial counsel (who was not counsel on this appeal) interviewed Grisolia and learned Grisolia had an opinion about the brakes on the Vicentini car. Shortly before trial, appellants’ trial counsel sent the other parties a synopsis of Grisolia’s anticipated evidence. It disclosed Grisolia would testify that when he took the Vicentini vehicle for a test drive, the brakes were “spongy” and he thought the seized brake calipers and unsatisfactory brake friction material would cause greater brake pedal travel, with a negative effect on the car’s braking ability.

[19] At the start of the trial, the appellants moved for leave to call more than three expert witnesses, including calling Grisolia to provide expert opinion evidence. The trial judge was informed about the existence of Grisolia’s “will say,” but she did not review a copy of it.

The trial judge’s ruling

[20] The trial judge ruled that Grisolia could not give expert evidence: 2012 ONSC 1066. She noted, at para. 14:

The two page form that was completed identifies Mr. Grisolia’s findings but does not set out any opinion. Mr. Grisolia noted on the form that the front calipers sliders seized [unsatisfactory] and the friction material [unsatisfactory]. He does not describe the effects of the two items he deemed unsatisfactory nor does he comment on the function of the brakes themselves.

[21] The trial judge then held, in part, at paras. 15 and 16:

The Rules of Civil Procedure have very specific provisions for the inclusion of expert testimony at trials and the 2010 amendments to the provisions governing expert reports provide for more stringent requirements before an expert is permitted to testify. No report from Mr. Grisolia that complies with Rule 53.03 has been tendered and there is no evidence before me of any attempts made by the solicitor for the Plaintiffs to secure an opinion from Mr. Grisolia on the brakes on the Viscentini car in a form of a report that complies with Rule 53. There is nothing in the document that he completed in 2004 that sets out his opinion. What he has done is to examine the various items listed on the document and tick off the appropriate box to indicate whether the component met the Ministry standards or not. I do not say this in a critical fashion; this is the document that Mr. Grisolia is required to fill out by the police when he inspects a vehicle that has been involved in a collision. The document, however, is deficient in terms of providing the minimum information that is contemplated by Rule 53 for expert reports. I have no information as to what qualifications Mr. Grisolia has, apart from the fact that he was employed by the police to do mechanical inspections of vehicles. I do not know if he has the proper qualifications to even permit him to be qualified as an expert at trial.

In my view, on the basis of the document he completed on his inspection of the vehicle, I am not prepared to permit him to give expert testimony at this trial. To do so, in my opinion, would contravene the requirements of Rule 53 and would flout the reasoning giving rise to the amendments to the Rules governing expert evidence. The fact that the solicitor for the Plaintiff has provided a synopsis of his expected testimony does not, in my mind, get around the problems with Mr. Grisolia offering an expert opinion to this Court…

Grisolia’s evidence at trial

[22] At trial, Grisolia testified about the inspection he had conducted of the Vicentini vehicle. He stated he saw the lining of the brake pads “was very, very low,” which caused him to record the friction material pads as unsatisfactory. Grisolia was permitted to testify that he took the car on a road test, but he was not allowed to give the details of the test, other than as recorded on the Examination Form. Grisolia confirmed that his notation that “service brake performance” was satisfactory referred to the regular brake pedal used when driving.

Positions of the parties

[23] The trial judge ruled on the scope of Grisolia’s evidence before the decision of this court in Westerhof v. Gee Estate, 2015 ONCA 206. The appellants submit the trial judge erred in holding Grisolia could not opine on the vehicle’s brake functioning in the absence of a report that complied with r. 53.03 of the Rules of Civil Procedure. The appellants contend Grisolia was not a litigation expert, within the meaning of the Westerhof decision, so he could give an opinion in the absence of a r. 53.03-compliant report.

[24] Vicentini submits the trial judge’s ruling was consistent with the principles set out in Westerhof and the trial judge properly discharged her role as gatekeeper regarding the admissibility of opinion evidence.

[25] Ford Credit, as the owner of the Vicentini vehicle, supports Vicentini’s position on this issue and the other issues regarding liability.

Analysis

[26] In Westerhoff, this court held that the requirements of r. 53.03 apply to “litigation experts” – experts engaged by a party to provide opinion evidence – but not to “participant experts” or “non-party experts”: at para. 14. Participant experts form opinions based on their participation in the underlying events.

[27] The appellants submit the trial judge erred in holding that Grisolia was required to comply with r. 53.03 in order to give opinion evidence; they argue Grisolia was a participant expert who was not required to deliver a r. 53.03 report. I do not accept this submission. While the trial judge did not have the benefit of this court’s decision in Westerhoff, her ruling complied with the principles set out in that case.

[28] Grisolia was a participant expert, as described by this court in Westerhoff. As a general rule, a participant expert with special skill, knowledge, training, or experience may give opinion evidence without complying with r. 53.03 where (i) the opinion to be given is based on the witness’s observation of or participation in the events at issue and (ii) the witness formed the opinion as part of the ordinary exercise of his or her skill, knowledge, training, and experience while observing or participating in such events: at para. 60. However, if a participant expert proffers opinion evidence extending beyond those limits, he or she must comply with r. 53.03 with respect to the portion of the opinion extending beyond those limits: at para. 60.

[29] In Westeroff, this court explained that one reason r. 53.03 does not apply to participant experts is that disclosure problems generally do not exist in relation to their opinions: at para. 85. However, where disclosure problems do exist, including the disclosure of the proffered opinion of a participant expert only on the eve of trial, the trial judge has the discretion to exclude the last-minute opinion evidence: at para. 90.

[30] In the present case, the appellants sought to adduce at trial an opinion from Grisolia that went beyond his observations and comments recorded on the Examination Form. As well, the appellants only disclosed the opinion on the eve of trial, notwithstanding that the parties had possessed the Examination Form for several years. In those circumstances, I see no error in the trial judge’s refusal to permit Grisolia to give opinion evidence about brake performance that was not contained in his Examination Form.

[31] Moreover, as this court emphasized in Westerhoff, a trial judge retains her gatekeeper function in relation to opinion evidence from participant experts and non-party experts: para. 64; see also R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28. If the proffered opinion evidence does not meet the test for admissibility – including demonstrating the expert possesses special skill, knowledge, training, or experience – it is open to the trial judge to exclude part of the opinion evidence of a participant expert: Westerhoff, at para. 64.

[32] The trial judge’s ruling makes clear that, as the gatekeeper of expert opinion evidence, she had two concerns beyond the lack of a r. 53.03 report. First, the appellants had not provided evidence that would enable her to ascertain whether Grisolia possessed the qualifications necessary to give opinion evidence. The trial judge voiced that concern in her ruling. As well, during Grisolia’s examination-in-chief, the trial judge said to appellant’s trial counsel that she did not know whether Grisolia was a qualified mechanic. In response, appellants’ trial counsel stated he was not qualifying Grisolia as an expert.

[33] Second, she concluded, at para. 16 of her reasons, that admitting opinion evidence disclosed to the opposite parties only after the jury had been selected would result in unfairness to the respondents, but its exclusion would not work any unfairness on the appellants:

[N]o unfairness to the Plaintiffs will result as a consequence of my ruling. Counsel has retained an engineer who has delivered a report that complies with Rule 53 and he, presumably, will testify on the liability issues. On the other hand, to permit Mr. Grisolia to testify at this trial and to provide his opinion on the function of the brakes on the Vicentini vehicle at the time of the collision would be manifestly unfair to the defendants Vicentini and Ford Credit when the performance of the brakes has not been an issue in this lawsuit and no expert has opined on this to date.

[34] Those were both legitimate factors for the trial judge to take into account in exercising her discretion as the gatekeeper of expert opinion evidence.

[35] The appellants submit the trial judge erred in concluding unfairness would result to the respondents if the opinion evidence was admitted because the issue of brake performance did not come as a surprise to anyone. They point to their Amended Statement of Claim where they pleaded Vicentini failed to have his brakes in proper working order. I would not accept this submission for two reasons. First, the pleading of particulars of negligence in motor vehicle accident cases tends to have a boiler-plate character. The more useful indicator of a plaintiff’s theory of liability usually is found in the expert reports. As described above, in the present case the appellants’ expert reviewed Grisolia’s vehicle Examination Form in preparing his report, but did not advance any opinion of liability based upon the unsatisfactory performance of the brakes.

[36] Second, the appellants characterize Grisolia’s anticipated evidence concerning “brake pedal travel” as factual, and not a matter of opinion. However it was reasonable for the trial judge to conclude that the proposed evidence on pedal travel “sounds like opinion evidence” because Grisolia’s “will say” expressed the view that seized calipers and unsatisfactory brake performance “would also cause greater brake pedal travel.” As well, Grisolia’s proposed opinion evidence stood opposed to his notation on the vehicle examination form that “service brake performance” was “satisfactory.”

[37] Finally, the appellants submit that the trial judge erred in excluding Grisolia’s opinion evidence because in this case the onus of proof that the injury did not arise through the negligence of the driver rested on Vicentini: Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), s. 193(1). I disagree. While s. 193(1) of the HTA places the ultimate burden of proof on the issue of negligence in a case such as the present one on the driver, it does not alter the obligation of the appellants to satisfy the trial judge that any opinion evidence they seek to adduce meets the criteria of admissibility.

[38] Accordingly, I see no basis upon which to interfere with the trial judge’s decision to exclude the opinion evidence the appellants sought to adduce from Grisolia.

C. The brake issue evidence given by De Los Rios

[39] De Los Rios prepared a Collision Construction Report that all parties obtained several years prior to trial. Vicentini ultimately called De Los Rios at trial, and a Form 53 – Acknowledgement of Expert’s Duty – was served in respect of his evidence.

[40] At trial, Vicentini tendered De Los Rios to give evidence as an expert accident reconstructionist. The appellants did not object to the witness’s qualifications, and De Los Rios was qualified to offer an opinion in the area of accident reconstruction.

[41] The appellants submit the trial judge erred in admitting opinion evidence elicited from De Los Rios in two parts of his testimony. First, in his examination-in-chief, De Los Rios explained the use he made of Grisolia’s Examination Form:

Q: … And we understand that there were two items that were found to be unsatisfactory on that form.

A: I have one item was identified as unsatisfactory.

Q: All right. But what was your opinion in relation to whether – in doing your accident reconstruction you made a comment in your report.

A: Notwithstanding his finding I was able to still relate to the fact that those wheels locked and I had skid marks on the scene as a result of that car braking and slamming on the brakes.

[42] Second, at a later point in his examination-in-chief, De Los Rios offered his opinion that the accident was preventable had Christopher remained in the crosswalk. He stated Vicentini could not have avoided the accident.

[43] I would not accept the appellants’ submission for three reasons. First, the evidence De Los Rios gave in-chief tracked that set out in sections 12, 30 and 31 of his Report; he did not stray beyond the statements made in his Report.

[44] Second, appellants’ trial counsel did not suggest in his cross-examination of De Los Rios that he was not qualified to give those opinions.

[45] Finally, appellants’ trial counsel did not object either to those portions of De Los Rios’ evidence-in-chief or to the related portions of his report. It is well-established that if no objection is made to the admissibility of evidence in a civil trial, an objection on appeal will usually be unsuccessful: Marshall v. Watson Wyatt & Co. (2002), 2002 13354 (ON CA), 57 O.R. (3d) 813 (C.A.), at para. 15.

D. Charge to the jury on the brake issue

Reference to the evidence of De Los Rios

[46] The appellants submit the trial judge made two errors in her jury charge on the brake issue.

[47] First, the appellants argue that the trial judge erred in emphasizing and repeating in her charge the evidence of De Los Rios referred to in paras. 38 and 39 above. Specifically, they submit she erred in stating: “[De Los Rios] noted Vicentini was travelling 32 kilometres an hour and his brakes operated properly because he left skid marks on the road which indicates that the wheels locked.”

[48] I would not accept this submission. The trial judge accurately summarized the evidence of De Los Rios in her charge. Further, appellants’ trial counsel did not object to this portion of the charge. An objection to the charge to the jury in a civil case will generally be unsuccessful if raised for the first time on appeal, and this court will relieve against the failure to object only if the interests of justice require it: Marshall, at para. 15. I would also note that appellants’ trial counsel, at the conclusion of counsel’s submissions on the charge, commended the trial judge for “a very considered charge.”

Removing from the jury the brake defect issue

[49] In her charge to the jury, the trial judge addressed the issue of the brakes on the Vicentini car. She stated, in part:

This morning in his closing address to you [plaintiffs’ counsel] told you that you should consider the brakes in determining whether or not Mr. Vicentini was careful. This was an incorrect statement as to what you as jurors ought to consider and I instruct you to disregard it. I direct that you cannot find on the evidence that the brakes played any role in the collision with Christopher.

[50] The appellants submit the trial judge erred in instructing the jury to disregard the brakes because (i) “[i]t is a matter of common sense that in a case of this nature completely worn brake linings might create an issue with brake function” and (ii) such an instruction ignored the reverse onus placed on Vicentini and Ford Credit by s. 193(1) of the HTA.

[51] I would not accept this submission for several reasons. First, it is inconsistent with the position ultimately taken by appellants’ counsel at trial. To understand the position ultimately taken by trial counsel, some background information is necessary.

[52] During his closing to the jury, appellants’ trial counsel stated: “Her Honour will likely instruct you that there is no evidence before this court that the brakes caused the accident or there is anything about the brakes that caused the accident – but I want you to consider the brakes in the context of carefulness.” Counsel then referred to some of the component deficiencies identified on the Grisolia Examination Form and concluded: “[t]hat’s something you’re going to have to consider as to how careful he was.”

[53] That submission prompted Vicentini’s counsel to object on the ground there was no evidence the condition of the brakes had contributed to the accident. He asked the trial judge to give the jury a correcting instruction upon their return.

[54] Appellants’ trial counsel submitted there was no need to say anything to the jury on the matter. He then continued:

In the alternative, that Her Honour wishes to address the issue with the jury and, specifically, the comment that, frankly, is in tune with my own theory and expression in this case, Your Honour, is that the brakes have nothing to do with causing this accident…[I]f it is found that there wasn’t a proper reference then the comment from Your Honour to the jury that there is no evidence that the condition of the brakes is causative, contributed to this accident, is something not only I’m not fond of but is something I’ve echoed myself.

This isn’t a cloak attempt, Your Honour. If that’s the suggestion by my friends, this is not a cloak attempt. This is an attempt to draw due deference to your own rulings on this subject, made patently clear to me on several occasions. [Emphasis added].

[55] Accordingly, the trial judge’s direction to the jury was consistent with the ultimate submission made by appellants’ trial counsel – there was no evidence the brakes played any role in the collision with Christopher.

[56] Second, the trial judge’s direction accurately and fairly summarized the evidence admitted on the brakes issue.

[57] Finally, the trial judge’s direction was not inconsistent with the reverse onus placed on the respondents, Vicentini and Ford Credit, by s. 193(1) of the HTA. The appellants take no issue with the trial judge’s charge on the reverse onus – it accurately instructed the jury about the onus s. 193(1) placed on the respondents, Vicentini and Ford Credit. Given that, it was open to the trial judge to instruct the jury on what admissible evidence was before them that they could take into account when considering whether the respondents, Vicentini and Ford Credit, had discharged the reverse onus they bore. By so doing, the trial judge did not deprive the appellants of the benefit of that statutory presumption. In light of the state of the evidentiary record at trial, the trial judge’s direction was proper in the circumstances. I see no error.

III. OPINION Evidence On the “ultimate issue”

A. Statement of the issue

[58] At trial, Vicentini called Dr. Marc Green as a human factors expert who gave opinion evidence on Vicentini’s perception-reaction time – i.e., how long it would take Vicentini to perceive Christopher as a hazard and react to the hazard by braking or steering. The appellants did not oppose Green’s qualification as an expert entitled to express an opinion in the area of human factors.

[59] On this appeal, the appellants submit the trial judge erred by permitting Vicentini to lead evidence from Green that (i) the cause of the accident was Christopher darting out into traffic, and (ii) Vicentini had no chance to avoid the collision. The appellants argue such opinion evidence went beyond the area in which Green was qualified to testify and, as well, amounted to impermissible opinions on the ultimate issue the jury was required to decide.

[60] Vicentini submits the trial judge made no error because (i) the appellants had elicited similar evidence from their own accident reconstruction expert, Hrycay, and (ii) appellants’ trial counsel raised no objection to Green’s evidence.

B. Analysis

[61] I would accept Vicentini’s submissions.

[62] First, there is no longer a general rule barring opinion evidence on the ultimate issue. Instead, a court should apply the criteria of necessity and the cost-benefit-analysis more strictly on evidence dealing with the ultimate issue: Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant- The Law of Evidence in Canada, Fourth Edition (Toronto: LexisNexis, 2014), § 12.152. In the present case, both the appellants and Vicentini adduced expert evidence on the issue of the cause of the accident. The appellants led evidence from Hrycay as to whether Vicentini could have avoided the collision, the same issue they now contend the trial judge should not have allowed Green to address. The appellants’ position is inconsistent and, therefore, not tenable.

[63] Second, an appellant cannot ask for a new civil trial as of right on the ground of the inadmissibility of evidence when no objection was made in respect of the matter at trial and no substantial wrong or miscarriage was occasioned: G.K. v. D.K. (1999), 1999 935 (ON CA), 122 O.A.C. 36 (C.A.), at para. 17. In the present case, the appellants did not object at trial to the evidence from Green they now contend was inadmissible and, as noted, they elicited from their own expert evidence about whether the accident was avoidable. Moreover, in her charge to the jury, the trial judge summarized the competing opinions of Green and Hrycay on the cause of the accident, and her reference to that evidence did not prompt an objection by appellants’ trial counsel. The trial judge also properly instructed the jury on the use they could make of the expert evidence. Accordingly, in those circumstances, I would not give effect to this ground of appeal.

IV. WHETHER HOANG’S APPOINTED DEFENCE COUNSEL WAS IN A CONFLICT OF INTEREST

A. Statement of the issue

[64] The appellants seek a new trial on liability as against Vicentini and Ford Credit on the ground that the counsel Hoang’s insurer, The Personal, appointed to defend the action was in a conflict of interest position. The appellants argue that a conflict arose because the insurer had reserved its rights regarding coverage under the policy.

B. Background facts

[65] Hoang carried an automobile insurance policy issued by The Personal. The appellants’ July, 2006 Statement of Claim contained allegations of negligence relating to the use and operation of a motor vehicle, as well as claims related to Hoang’s failure to supervise his son immediately after dropping him off.

[66] Upon receipt of the Statement of Claim, The Personal acknowledged its duty to defend the action on behalf of Hoang. However, The Personal had Hoang sign a non-waiver agreement under which The Personal did not waive its rights under the policy.

[67] The Personal retained experienced counsel to defend Hoang in the action. The Personal retained separate coverage counsel in November, 2008.

[68] The following month, appellants’ trial counsel advised Ms. Trieu that her husband should go to an independent lawyer because the claim against him exceeded his policy limits. Hoang thereupon retained his own counsel, who was experienced in motor vehicle insurance litigation, “to look after my interests in this matter”. His personal counsel was aware of the non-waiver agreement with The Personal as early as December, 2008.

[69] In November, 2009 Hoang’s personal counsel took the position with Hoang’s appointed counsel that The Personal had failed to take all reasonable steps to protect Hoang’s interests, resulting in prejudice to him. Notwithstanding this position, Hoang took no steps to remove appointed counsel or obtain a declaration that The Personal was required to pay for the counsel of his choice. A July 5, 2010 letter from Hoang’s personal counsel to The Personal and Hoang’s appointed counsel suggests Hoang may not have done so in order to support an argument that The Personal, by appointing defence counsel, had confirmed coverage under the policy:

The Personal could not have any right to continue to defend Mr. Hoang, even under a non-waiver agreement, except by virtue of a subsisting policy of insurance. The Personal, having elected to treat the contract as still existing, cannot now take the position Mr. Hoang is not entitled to indemnity under the policy.

[70] A little over a month before the start of the trial in January, 2012, Hoang’s personal counsel wrote to his appointed counsel advising that he intended to be involved in both trial preparation and the trial, including making suggestions about lines of questioning for witnesses and the content of closing submissions. A few days before trial, Hoang’s personal counsel advised his appointed counsel that he would not be in attendance at the trial “as you have carriage of the defence of this action on behalf of Can Hoang.” Hoang’s personal counsel did participate in the meeting to prepare Hoang for his testimony at trial.

[71] The case proceeded to trial in January, 2012. The jury found that Hoang’s negligence contributed to the accident.

[72] At trial, the appellants did not take the position with the trial judge that Hoang’s representation by counsel appointed by The Personal, which was disputing coverage, created a conflict of interest.

C. The governing principles of law

[73] The Insurance Act states that every motor vehicle liability policy issued in Ontario shall provide that the insured appoints the insurer as its attorney to defend any action against the insured arising out of the ownership, use or operation of the automobile: Insurance Act, R.S.O. 1990, c. I.8, s. 252(1)(c). Section 3.3.1 of the standard Ontario Automobile Policy in force at the time of the accident incorporated this statutory right of the insurer. However, the right of an insurer to control the defence of any claim is not absolute: Brockton (Municipality) v. Frank Cowan Co. (2002), 2002 7392 (ON CA), 57 O.R. (3d) 447 (C.A.), at para. 32. If a sufficient degree of divergence exists between the interests of the insurer and the insured, the insurer can be required to surrender control of the defence and pay for counsel retained by the insured.

[74] In Brockton, this court described the degree of divergence that must exist before a court can require an insurer to surrender control of the defence. Rejecting the concept of “appearance of impropriety” as a basis for depriving an insurer of its contractual right to control the defence, this court instead adopted, at para. 43, the concept of conflict of interest:

The balance is between the insured's right to a full and fair defence of the civil action against it and the insurer's right to control that defence because of its potential ultimate obligation to indemnify. In my view, that balance is appropriately struck by requiring that there be, in the circumstances of the particular case, a reasonable apprehension of conflict of interest on the part of counsel appointed by the insurer before the insured is entitled to independent counsel at the insurer's expense. The question is whether counsel's mandate from the insurer can reasonably be said to conflict with his mandate to defend the insured in the civil action. Until that point is reached, the insured's right to a defence and the insurer's right to control that defence can satisfactorily co-exist.

[75] The potential tension between insurer and insured which is manifested by a reservation of rights by the insurer is not, in itself, sufficient to require the insurer to surrender control of the defence: Brockton, citing Zurich of Canada v. Renaud & Jacob, 1996 5801 (QC CA), [1996] R.J.Q. 2160 (C.A.). Whether a conflict exists turns, in part, on the reason why an insurer reserves its rights. In Brockton this court, at para. 42, adopted the following analysis from the Zurich case:

If the reservation of rights arises because of coverage questions which depend upon an aspect of the insured's own conduct that is in issue in the underlying litigation, a conflict exists. On the other hand, where the reservation of rights is based on coverage disputes which have nothing to do with the issues being litigated in the underlying action, there is no conflict of interest requiring independent counsel paid for by the insurer.

[76] Generally, an insured should take prompt action when it thinks appointed counsel has a conflict of interest. Where an insured is of the view that a sufficient divergence of interests with its insurer exists to justify the insurer paying for counsel retained by the insured, the insured generally moves before the court for declaratory relief to that effect at the early stages of the defence of the action. See, for example: Brockton, at para. 20; Appin Realty Corp. v. Economical Mutual Insurance Co., 2008 ONCA 95, 89 O.R. (3d) 654, at paras. 9 and 10.

D. Analysis

[77] The appellants do not suggest counsel for Hoang appointed by The Personal preferred the interests of the insurer to those of his client. They submit, however, that “the mere existence of such a conflict brings the administration of justice into disrepute,” as a result of which a new trial should be directed on the issue of the liability of Vicentini and Ford Credit only. Hoang joins them in requesting this relief.

[78] I would not accept this submission for two reasons.

[79] The first concerns the timing of the appellants’ complaint about a possible conflict of interest between Hoang and his insurer. There is no dispute that several years before the 2012 trial, the parties knew that Hoang’s insurer was taking an off-coverage position in respect of the accident. As the trial judge stated in her costs endorsement, 2014 ONSC 5893, at paras. 24 and 31:

I wish to note at the outset that it is and was no secret that the automobile insurer for Hoang, The Personal, took the position by June 2009 that there was no coverage afforded to Hoang for this accident on the basis that the incident giving rise to the damages did not arise out of the use or operation of an automobile... …

One wonders why the solicitors for the Plaintiffs failed to address this issue [of coverage] earlier in the litigation, given its importance to the action for Christopher’s damages. The position of the insurer was known to counsel for the Plaintiffs since at least 2009; it was not a new development that occurred during the course of this trial.

[80] As well, in December, 2008, Hoang had retained personal counsel, who was experienced in motor vehicle insurance litigation, to advise him on the accident litigation.

[81] Nevertheless, Hoang did not move, either before or at trial, for a declaration that counsel appointed by The Personal stood in a conflict of interest position necessitating his representation by counsel of his choice, paid for by The Personal. Nor did the appellants bring such a motion. They only raised the issue after the jury verdict and on this appeal.

[82] In my view, where a party forms the view that the divergence of interests between the insurer and its insured is such that the insured’s representation by counsel appointed by the insurer might prejudice the fairness of a trial, the party is obliged to seek appropriate relief promptly from the court, certainly well before trial. Consequently, the appellants’ lengthy delay in raising the issue weighs heavily against their submission.

[83] Second, the appellants concede that counsel The Personal appointed for Hoang did not prefer the interests of the insurer to those of his client. Indeed, the trial record discloses that Hoang’s appointed trial counsel advanced a full defence on his behalf on all issues pleaded against Hoang – both those involving the off-loading of the children and the parental supervision claims. On the issue of liability, Hoang’s trial counsel submitted to the jury that the accident was unavoidable – a child darted unexpectedly in front of Vicentini’s car. The trial record shows that the coverage dispute between the insured and insurer did not affect the comprehensiveness of the defence advanced on behalf of the insured.

[84] The appellants submit, however, that one aspect of how Hoang’s defence was conducted at trial brought the administration of justice into disrepute. Hoang took the position that Vicentini was not liable for the accident. In their factum, the appellants argue:

Here you had a situation where it would appear to the jury that Can Hoang’s own lawyer was telling the jury that the striking driver was not at fault for the devastating injuries to his son. This could be expected to have a dramatic impact on the jury…No party should have to face an undisclosed situation in the courtroom (the existence of a conflict) that might explain and shed light on the motives of another party in advancing certain positions. Here the infant plaintiff was subject to just that.

[85] I do not agree with that submission. In the present case, both Hoang and Vicentini adopted a trial strategy in which they did not blame the other for the accident. Instead, they took the position that the accident was unavoidable because Christopher unexpectedly darted into the traffic to retrieve his hat. In appropriate circumstances, not blaming the other defendant can operate as a sound litigation strategy. It may assist in providing a united front on limiting damages, avoid alienating the jury, and reduce the likelihood of a Sanderson or Bullock award. On the state of the evidence in this case, unavoidable accident was a legitimate defence open to Hoang’s trial counsel to advance. Advancing that defence, in the circumstances of this case, could not bring the administration of justice into disrepute.

[86] Consequently, I would not give effect to this ground of appeal.

V. Future Care Costs

[87] In their factum, the appellants argued the trial judge should not have given a correcting instruction to the jury about the use appellants’ trial counsel made of a chart on future care costs during closing submissions.

[88] At the hearing of the appeal, appellants’ counsel indicated his clients were not pursuing the issue of the quantum of future care costs. Consequently, there is no need to deal with this issue.

VI. TRIAL Costs

[89] The appellants submit the trial judge made three errors in ordering them to pay costs to Vicentini and Ford Credit: (i) costs should not have been awarded against the minor plaintiffs/appellants; (ii) separate costs should not have been awarded to Vicentini and Ford Credit; and (iii) the trial judge failed to give due weight to the “ability to pay” principle when she declined to make a Sanderson Order. The appellants also argue that The Personal should pay the costs the trial judge awarded to the various parties as a result of improperly appointing conflicted defence counsel.

A. The cost award against the minor plaintiffs

[90] The trial judge required all plaintiffs to pay the costs awarded to Vicentini and Ford Credit. The appellants submit the award of costs against the minor plaintiffs went against the general practice of limiting cost awards against parties under disability to their litigation guardians.

[91] In support of their position, the appellants rely on Asselin-Normand v. King Edward Realty, 2015 ONSC 2876, [2015] O.J. No. 2771. In that case, at para. 27, Stinson J. stated that while nothing in the Rules of Civil Procedure “explicitly prohibits the court from exercising its broad discretion to award costs against parties under disability…the…cases reveal an established practice of not awarding costs against parties under disability personally.” As Stinson J. pointed out, r. 57.06(2) enables a litigation guardian who has been ordered to pay costs to recover them from the person under disability for whom she has acted, unless the court orders otherwise.

[92] Vicentini and Ford Credit do not object to varying the Judgment to exclude the minor appellants from the award of costs made in their favour. Accordingly, I would vary paras. 7 and 8 of the Judgment so that the costs awarded are payable only by Ms. Trieu, personally and in her capacity as litigation guardian for the minor plaintiffs.

B. The separate costs awarded to Ford Credit

[93] The trial judge ordered separate costs in favour of Vicentini ($435,214.19) and Ford Credit ($173,695.39). In her cost reasons, at para. 44, the trial judge concluded that the hours claimed by Ford Credit’s counsel were reasonable because he “batted clean-up”: his client “was not the ‘target’ defendant in the sense that as owner of the vehicle operated by Vicentini, his success or failure turned on the findings made by the jury concerning Vicentini.”

[94] The appellants submit the trial judge erred in making separate cost awards because both Ford Credit and Vicentini had exactly the same interests and their independent representation was unnecessary.

[95] It is unclear on the record before us whether the appellants advanced this position in their cost submissions to the trial judge. According to the trial judge’s cost reasons, the appellants’ primary position below was that any costs awarded in favour of the successful respondents should be paid for by Hoang, either directly pursuant to a Sanderson order, or indirectly by way of indemnification of the appellants under a Bullock order.

[96] In any event, whether it is appropriate to award more than one set of costs to successful parties is a matter within the discretion of the trial judge and turns, in part, on the reasonableness of separate representation for parties with the same or similar interests: r. 57.01(1)(h)(ii). In the present case, the coverage limits available under the separate policies held by Vicentini and Ford Credit differed: $1 million in the case of Vicentini’s automobile insurance policy; a US $10 million deductible in the case of Ford Credit’s policy.

[97] At the opening of the trial, the appellants moved to amend their prayer for relief from $5.5 million to $15 million. The amendment sought would put the claim over the deductible of Ford Credit’s policy. Ultimately, counsel agreed on an amendment of the claim to $10 million – the deductible limits of Ford Credit – so that an adjournment of the trial was not required: 2014 ONSC 5893, at para. 52.

[98] In light of the amount of the appellants’ claims and the different policy limits available to the successful respondents, I would accept the submission of Ford Credit that its interests in the action were distinct from those of Vicentini, making it reasonable for Ford Credit to have separate representation. Ford Credit and Vicentini co-operated in the presentation of their defences to avoid unnecessary duplication, as recognized by the trial judge in her cost award. In those circumstances, I see no error in the trial judge’s exercise of her discretion to award separate costs to Ford Credit and Vicentini.

C. The denial of a Sanderson Order

[99] At trial, the appellants sought a Sanderson order requiring Hoang to pay the costs of the successful defendants, Vicentini and Ford Credit. The trial judge declined to make such an order. The appellants submit that she erred in so doing because she failed to give due weight to the “ability to pay” principle in considering a Sanderson order. Hoang supports the appellants’ position on this issue.

[100] I would not accept the appellants’ submission. The trial judge correctly identified the principles governing the making of a Sanderson order. She expressly considered the “ability to pay” factor described by this court in Moore v. Wienecke, 2008 ONCA 162, 90 O.R. (3d) 463. Specifically, the trial judge stated, at para. 107:

I turn to the final factor, the ability to pay costs. The solicitor for the Plaintiffs argues that the litigation guardian, the mother of the infant Plaintiff, does not have the financial means to pay costs given her assets and income from employment. It is submitted that while Mr. Hoang is of the same modest financial means, he has “a real prospect of success in his pending insurance coverage action which will render him able to pay the judgment and costs.” As I have indicated earlier in these reasons, I cannot predetermine the outcome of the coverage action and thus, I cannot accept this submission from counsel for the Plaintiffs.

[101] That was a reasonable conclusion for the trial judge to reach on the “ability to pay” factor. She made no error; there is no basis for appellate intervention. On the contrary, earlier in her cost endorsement, at para. 55, the trial judge accurately described the risks assumed by appellants’ counsel in proceeding with the trial in the face of an unresolved coverage issue:

Given that the position of the insurer may prevail and that the coverage issue continues to be unresolved, the solicitor for the Plaintiffs ought to have carefully considered the risks inherent in proceeding through a lengthy trial on all of the issues with the uncertainty of result in terms of amount of damages, payment of a judgment and the financial ramifications on the Hoang family.

The liability of The Personal to pay costs

[102] The appellants advance two reasons why The Personal should be required to pay the costs awarded to them, Vicentini and Ford Credit.

[103] First, the appellants repeat their argument that The Personal acted improperly by appointing conflicted defence counsel for Hoang and, as a result, it would be in the public interest to order The Personal to pay all costs awarded. Since I did not accept the appellants’ submission that the representation of Hoang by counsel appointed by The Personal resulted in an unfair trial, I would not accept their similar submission in respect of the responsibility for payment of costs.

[104] Second, the appellants submit the terms of the policy of automobile insurance issued by The Personal require it to pay any costs awarded against its insured irrespective of the issue of coverage. As mentioned, a variant of this argument was advanced before the trial judge to support the making of a Sanderson Order. The trial judge declined to consider the argument in light of the on-going coverage litigation between Hoang and The Personal before the courts. For the same reason, it would not be appropriate for this court to consider the issue.

[105] Consequently, I would not give effect to this ground of appeal.

VII. DISPOSITION

[106] By way of summary, I would grant the motion for leave to file fresh evidence. I would dismiss the appeal, save to the extent of varying paras. 7 and 8 of the Judgment so that the costs awarded in favour of Vicentini and Ford Credit are payable by San Trieu, personally and in her capacity as litigation guardians for the minor appellants, Christopher Hoang and Danielle Hoang.

[107] I would encourage the parties to settle the costs of the appeal. If they cannot, Vicentini, Ford Credit and The Personal may file to the attention of the panel brief written cost submissions no later than October 17, 2016, and brief responding cost submissions shall be filed no later than October 28, 2016.

Released: October 5, 2016 (JL)

“David Brown J.A.”

“I agree John Laskin J.A.”

“I agree C.W. Hourigan J.A.”

[^1]: The Personal Insurance Company was added as a respondent to this appeal by the order of Laskin J.A. dated November 16, 2015.