Court of Appeal for Ontario
Date: November 21, 2017 Docket: C62038 Judges: Pardu, Trotter and Paciocco JJ.A.
Between
Sarah Corbett, Scott Corbett, Sam Corbett by his Litigation Guardian, Scott Corbett and William Corbett by his Litigation Guardian, Scott Corbett
Plaintiffs/Respondents
and
Eva Odorico
Defendant/Appellant
Counsel
Todd J. McCarthy, Michael Switzer and Standford Cummings, for the appellant
Allan A. Farrer, for the respondents
Heard and released orally: November 16, 2017
On appeal from the judgment of Justice Charles T. Hackland of the Superior Court of Justice, dated March 22, 2016.
Reasons for Decision
[1] The appellant alleges that certain events at trial led to a miscarriage of justice. We do not agree. The events complained of include the following:
- leading questions asked by plaintiff's counsel;
- mention by plaintiff's counsel that defence had conducted independent medical examinations of the plaintiff;
- discussion between plaintiff's counsel and the plaintiff after cross-examination and before re-examination;
- mention that the defendant was insured;
- allowing a body shop manager who saw the vehicle immediately after the accident and who happened to be the father of the plaintiff to utter an opinion about the speed of the vehicle at fault, an estimate significantly lower than the plaintiff's own estimate of the speed of the oncoming vehicle. The trial judge cautioned the jury to treat this only as evidence suggesting that this was more than a minor fender bender.
- The trial judge's charge excluded the possibility of a zero award of general damages. Defence counsel conceded that it was clear that the plaintiff was shaken up by the accident and indicated "we don't have issue, but the fact that His Honour is going to suggest that zero is not appropriate". There was no objection to this aspect of the charge.
[2] None of these events either individually or cumulatively approached anywhere near a miscarriage of justice. We see no error in the manner in which the trial judge handled these events.
[3] The appellant also seeks leave to appeal the trial judge's decision regarding costs. He alleges that the trial judge erred by failing to give greater weight to proportionality. There is no dispute that the hours claimed, the hourly rate and the disbursements expended were reasonable. The trial judge considered all of the relevant factors, including proportionality, a last minute admission of liability, the complexity of the matter, the time needed for the trial and the conduct of both counsel. We see no error in principle and leave to appeal costs is dismissed.
[4] Appeal dismissed. Costs to the respondent in the agreed amount fixed at $15,000 including disbursements and HST.
"G. Pardu J.A."
"G.T. Trotter J.A."
"David Paciocco J.A."