Court of Appeal for Ontario
Date: November 29, 2017 Docket: C61888
Judges: Trotter, Paciocco and Nordheimer JJ.A.
Parties
Between
Dr. Jocelyne Parent and John Hendrix Plaintiffs (Respondents)
and
Janandee Management Inc., Downtown Building Group Inc., Camrost Felcorp, and The Camrost Corporation Defendants (Appellants)
and
T.S. Contracting Limited operating business as Upright Signs Defendant (Respondent and Appellant by cross-appeal)
Counsel
Douglas A. Wallace and Tori C. Wallace, for the appellants
Brian Brock and Joanna Reznick, for the respondents
James Schacter and Neil Searles, for the respondent/appellant by cross-appeal
Heard: November 16, 2017
On appeal from: The judgment of Justice Grant Dow of the Superior Court of Justice sitting with a jury, dated November 7, 2016.
Reasons for Decision
A. Background Facts
[1] The defendants, Janandee Management Inc., Downtown Building Group Inc., Camrost Felcorp, and The Camrost Corporation (collectively referred to as "Janandee"), appeal from the judgment awarding damages to the plaintiffs, entered in accordance with the Jury Verdict. The defendant T.S. Contracting Limited operating as Upright Signs ("Upright Signs") cross-appeals from a portion of the costs awards made by the trial judge.
[2] Janandee is a condominium developer that advertised in downtown Toronto on weekends with portable, A-frame signs on city sidewalks. Upright Signs was contracted by Janandee to install signs at designated intersections.
[3] On March 23, 2002, the respondents, Dr. Jocelyne Parent and her husband, John Hendrix, were walking westbound on the sidewalk located on the south side of King Street, near Bay Street, in Toronto. The day was windy, and both Dr. Parent and Mr. Hendrix were bent over in the wind, holding each other and their hats. Suddenly, Dr. Parent was struck in the face by one of Janandee's A-frame signs. The sign measured 48 inches by 32 inches, was made of wood and weighed between 35 and 40 pounds.
[4] The evidence was that the sign lifted about six inches off the ground and then struck Dr. Parent. As a result of the incident, Dr. Parent was knocked to the ground, hitting her head on the sidewalk. She sustained a broken nose, fractured orbit, and traumatic brain injury.
[5] Following a fifteen-day trial, a jury found all defendants liable, and awarded Dr. Parent $2,900,169.60 in damages, plus interest and costs. The jury found that Janandee and Upright Signs were both negligent and apportioned liability as follows: Janandee 94% and Upright Signs 6%.
[6] The trial judge subsequently ordered Janandee and Upright Signs to pay costs to the respondents in the amount of $727,290.00 and ordered Janandee to pay costs to Upright Signs in the amount of $210,000.00.
B. The Appeal
(1) Duty of Care
[7] Janandee raises a number of issues in its appeal. First, it contends that the trial judge erred in concluding that Janandee owed a duty of care to the plaintiffs. We did not call on the respondents on that issue. The submission that no duty of care was owed is an untenable one. In our view, a party who places, or arranges to have placed, signs on public sidewalks clearly owes a duty of care to members of the public to ensure that those signs are placed in a manner that will not cause injury to pedestrians or others who might reasonably be affected. There is a sufficiently close relationship between the persons placing signs, and the persons using the sidewalks, such that it would be within the reasonable contemplation of the former that carelessness on their parts might cause damage to the latter. Further, there are no considerations which ought to negative or limit the scope of the duty or the persons to whom it is owed: Anns v. Merton London Borough Council, [1978] A.C. 728 (U.K.H.L).
[8] That said, we do express some concern with the manner in which this issue was addressed in the charge to the jury. In his charge, the trial judge said:
There are three elements that a plaintiff must prove in a negligence action and on a balance of probabilities. They are:
There was a duty of care owed to the plaintiffs by one or both of the defendants. This is a question of law for me to decide and I will instruct you on that in a moment.
That there was a breach of that duty of care in that the defendants, one or both, failed to exercise the standard of care required of a reasonable and careful person in the same circumstances. This is a question of fact for you alone to decide.
That the plaintiff suffered damages as a direct result of the defendants' negligence. This is also a question of fact for you alone to decide.
[9] The trial judge then spent the next two pages of his charge explaining why he had concluded that a duty of care was owed by the defendants to the plaintiffs. In our view, there was no need for this explanation.
[10] Providing an explanation as to why a duty of care has been found, runs the risk that the explanation may unintentionally influence the jury's consideration of the two issues that they have to decide, that is, whether a defendant was negligent and the apportionment of fault as between two or more negligent defendants. In other words, the jury may take the trial judge's explanation as to why a duty of care has been found as indicating, or telegraphing, his/her view on the defendants' liability. Indeed, in this case several of the comments impugned by Janandee are found in comments the trial judge made about whether a duty of care applied. While we do not believe these comments misled or influenced the jury in this case, it is a risk that ought not to be run.
[11] What the trial judge ought to have done, after setting out the three elements, was simply advise the jury that he had concluded, as a matter of law, that a duty of care was owed by the defendants to the plaintiffs and thus the jury did not have to concern itself with that issue. He should have then proceeded to the second element, whether there was a breach of the duty, without further commentary. We would note that this appears to be the approach suggested in the sample civil jury instructions published by the Continuing Legal Education Society of British Columbia (Continuing Legal Education Society of British Columbia, February 2017, Civil Jury Instructions, at §5.01.3).
(2) The Apportionment of Liability
[12] The next issue raised by Janandee, and which appears to be the central one in this appeal, is whether the trial judge properly instructed the jury on the principles of apportionment of liability.
[13] The difficulty revolves around references to causation, both directly in the questions given to the jury, and indirectly in the charge to the jury as it related to apportionment. Janandee submits that the trial judge confused the issue of causation, which is relevant to the breach of the duty of care, with the issue of fault that is relevant to the apportionment exercise. Janandee says that this error may explain why the jury arrived at the somewhat unusual split of 94/6. Janandee says that this error is sufficiently serious that this court should intervene by setting aside the jury's verdict and reapportioning the liability 75% to Upright Signs and 25% to Janandee.
[14] Janandee correctly points out that the Negligence Act, R.S.O. 1990, c. N.1 provides, in s. 1, that where damages are caused or contributed by two or more persons "the court shall determine the degree in which each of such persons is at fault or negligent". Fault is different than causation. In commenting on s. 1 of the Negligence Act in Rizzi v. Mavros, 2008 ONCA 172, Lang J.A. said, at para. 48:
A plain reading of this provision requires apportionment based on the "fault or negligence" of each party, rather than on the basis of causation. It would be in error to apportion liability on the degree to which the appellant or the respondents caused the damages.
[15] The notion of fault involves a consideration of the blameworthiness of the actions of each of the defendants who have contributed to the damages suffered. As Professor Klar says in his text (L. N. Klar, Tort Law, 5th ed, (Toronto: Carswell, 2012)), at p. 582:
[A]ssessing degrees of fault or the extent of a person's responsibility must relate to the relative culpability or blameworthiness of the parties. The apportionment decision depends upon which of the defendants failed most markedly to live up to the standards of conduct expected.
[16] We agree with Janandee that there are aspects of the jury charge that could have been clearer regarding the basis upon which liability was to be apportioned, but we do not agree that these issues would have confused the jury with respect to the appropriate analysis.
[17] The questions put to the jury for their answers on liability were in the following order: questions #1 and 3 dealt with the issue of breach of the duty of care for each of the defendants, questions #2 and #4 were the questions on particulars of the negligence for each of the defendants, question #5 dealt with apportionment; question #6 dealt with damages, and question #7 dealt with Family Law Act, R.S.O. 1990, c. F.3 damages. The questions asked of the jury in relation to the breach by each of the defendants were in the same essential terms. In respect of Janandee, the question was:
Was there any negligence on the part of the Defendants Janandee Management Inc., Downtown Building Group Inc., Camrost Felcorp, or The Camrost Corporation (the "Janandee Group of Defendants") which caused or contributed to the injuries of the Plaintiff, Jocelyne Parent as a result of the sign incident of March 23, 2002?
[18] This question, which tracks the language set out in s. 1 of the Negligence Act, deals with the issue of whether there had been a breach of the duty of care, and properly asks for an answer to that question based on causation. The reference to "caused or contributed" is proper because it focusses the negligence inquiry on the act or omission that caused the injury.
[19] The potential difficulty arises when one gets to question #5, the apportionment question. It refers back to the negligence questions (i.e., questions #1 and #3) and then simply asks for the percentage split. Specifically, question #5 was:
Only if the answers to questions 1 and 3 are both "yes", how do you apportion the respective degrees of fault?
Two blanks were left beside the two defendants for a percentage to be inserted, with the total already marked as having to add to 100%.
[20] In his charge to the jury, the trial judge said:
If your answer to Questions 1 and 3 is yes, then you must answer Question 5 which requires you to apportion the respective degree of fault. You will note the question is already filled in in the total of 100. The apportionment must total 100 percent. There can be any two numbers that total 100. For example, the apportionment can be that 75/25 in either party's favour; 68/32; 50/50; 100/0.
[21] The trial judge made another reference to "degrees of fault" in the next paragraph of his charge.
[22] Unfortunately, the trial judge did not draw the jury's attention (at any point in his charge) to the fact that determining the degrees of fault is a different exercise than determining causation. It would have been better if the trial judge had explained to the jury that, when they came to the apportionment question, they must consider fault, in the sense of blameworthiness, and not causation. It might also have been helpful at that point to draw to the jury's attention the evidence that related to that determination.
[23] Janandee says that the above problem with the jury charge was magnified by the events surrounding the subsequent question asked by the jury. During their deliberations, the jury sent the judge a question. It read:
For Question 5 if we found Question 1 and 3 to be "yes", can we still have a diversity split of 100 percent versus zero percent?
[24] In responding to the jury's question, the trial judge said:
I did state as an example of apportionment 100/0 and that was in error. If you find a specific negligent act or failure to act on the part of the defendant that caused or contributed to the incident of March 23 2002 it must attract a percentage of liability even if only one percent or even less.
Janandee says that the language of "caused or contributed" exemplifies the trial judge's failure to instruct the jury on the proper basis for making the apportionment.
[25] We accept that the language used by the trial judge was not the best. Still, in our view, the answer to the jury's question did not invite the jury to apportion based on degrees of causation. The jury was directed to consider specific negligence on the part of the defendants. The reference to "it" refers to the subject of the sentence, the specific negligent act. Again, the reference to negligence that "caused or contributed to the incident" is included to identify the negligence that the jury should consider in making their apportionment.
[26] Any room for confusion caused by including causation references in the apportionment discussion is not of such a magnitude as to warrant our intervention in the result. We say that for a number of reasons:
(i) As pointed out above, the issue of fault was mentioned more than once by the trial judge when it came to the apportionment portion of his charge. It is also expressly mentioned in the apportionment question itself.
(ii) The answer to the jury's question was canvassed by the trial judge with all counsel and no one objected to the proposed answer on the grounds now raised by Janandee.
(iii) No counsel raised any objection to the contents of the trial judge's original charge on this issue. The failure of counsel to object (experienced trial counsel in this case) is properly taken into account in determining whether there was any "material misdirection or non-direction" by the trial judge that warrants appellate intervention: Marcoccia (Litigation guardian of) v. Ford Credit Canada Ltd., 2009 ONCA 317, 248 O.A.C. 131, at para. 26.
(iv) The jury's question shows that the jury knew it was apportioning based on its answers to question 1 and 3, relating to the specifics of negligence, and not on a causation basis.
(v) A high degree of deference is given by courts to jury verdicts. 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: Stilwell v. World Kitchen Inc., 2014 ONCA 770, 327 O.A.C. 146, at para. 33.
The mere fact that the apportionment made by the jury might be seen as an unusual one is not, without more, a sufficient basis to justify interfering with it.
(3) Foreseeability
[27] The final issue raised by Janandee is that the trial judge erroneously instructed the jury on the issue of foreseeability. Janandee says that this error manifested itself in the trial judge referring to the position of the appellant as the incident amounting to an "Act of God".
[28] The trial judge provided counsel with his charge in advance. Time was spent reviewing the draft charge with counsel and obtaining their input. Counsel for Janandee did raise an issue with the trial judge's instructions on foreseeability but not on the point that Janandee now raises. In particular, Janandee's trial counsel objected to the trial judge's reference to foreseeability of the "possibility" of harm. As a result of those objections, the trial judge amended his instructions to refer to the "probable" likelihood of harm.
[29] Nevertheless, characterizing Janandee's position as amounting to an "Act of God" defence probably ought not to have been said. However, again, counsel did not object at the time. In any event, the particulars of the negligence provided by the jury, fairly read in relation to Janandee, do not support any conclusion that this reference materially impacted on the jury's conclusions.
[30] The appeal is dismissed.
C. The Cross-Appeal
[31] We did not call on the appellant to respond to the cross-appeal regarding the trial judge's costs awards. Because of an offer to settle made by the plaintiffs, and an offer to contribute that had been made by Upright Signs, the trial judge was required to consider different costs issues, including the proper scale of costs payable to the plaintiffs, the degree of contribution among the defendants to those costs, and the liability of Janandee to Upright Signs for its costs subsequent to its offer to contribute. The trial judge resolved all of those issues in the subsequent reasons that he gave.
[32] While we accept that there may be a measure of inconsistency between the specific individual awards that the trial judge decided on, they are all matters within the discretion of the trial judge. The suggested errors do not rise to the level of seriousness that is required to satisfy the rare instance where leave to appeal a costs award will be granted: Inter-trust Mortgage Investment Corp. v. 1071005 Ontario Ltd., [1999] O.J. No. 1875 (C.A.) at para. 12. Further, viewed in the context of the overall costs awards, and the ultimate apportionment of liability by the jury, the costs awarded against Upright Signs was fair.
[33] Leave to cross-appeal the award of costs at trial is denied.
D. Costs
[34] Janandee will pay to Upright Signs the costs of the appeal in the agreed amount of $15,000 (inclusive of disbursements) plus HST. Upright Signs will pay to the appellants the costs of the cross-appeal in the agreed amount of $3,500 (inclusive of disbursements) plus HST. Janandee will pay to the respondents the costs of the appeal which we fix in the amount of $25,000 inclusive of disbursements and HST.
"G.T. Trotter J.A."
"David M. Paciocco J.A."
"I.V.B. Nordheimer J.A."