Court of Appeal for Ontario

Date: December 7, 2017 Docket: C61477

Judges: Laskin, Feldman and Juriansz JJ.A.

Between

Carlota Montepeque, Alberto Barquin and Francisco Barquin Plaintiffs (Appellant)

and

State Farm Mutual Automobile Insurance Company Defendant (Respondent)

Counsel

Karl Arvai, for the appellant

Chris Paliare and Tina Lie, for the respondent

Heard: August 22, 2017

On appeal from: the judgment of Justice Alissa K. Mitchell of the Superior Court of Justice, dated November 17, 2015.

Laskin J.A.:

A. Introduction

[1] In an early November morning in 2008, sometime after midnight, the appellant, Carlota Montepeque, was driving her car east on a two-lane highway in London, Ontario. She had two passengers. As she approached a curve in the road, she claimed that another car travelling west crossed the center line into her lane. She swerved to the shoulder to avoid a collision, lost control of her car, and rolled into a ditch. She suffered injuries to her neck, shoulders, back, and right knee.

[2] The driver of the other car did not stop and was never identified. Montepeque therefore sued her own car insurer, the respondent, State Farm, for damages under the unidentified motorist coverage in her car insurance policy. Her action was tried before a jury for 17 days. One of the passengers testified and corroborated Montepeque's account of the accident. State Farm called no evidence on liability, but took the position that there was no unidentified car at all, or if there was one, it did not cross over into Montepeque's lane.

[3] The first question that the jury was asked to answer was the central question on the issue of liability. This question read: "Did the negligence of an unidentified driver cause or contribute to the accident that occurred on November 23, 2008?" The jury answered "no". Montepeque's action was thus dismissed. The jury had, however, answered "yes" to question 9, which asked whether Montepeque's evidence of the "involvement" of an unidentified automobile was corroborated. Whether the jury's answer to these two questions were inconsistent is the main issue on the appeal.

[4] Montepeque raises that issue and three other issues on her appeal.

1. Should the verdict be set aside as unjust and unreasonable because the jury's answers to questions 1 and 9 were inconsistent?

2. Did the trial judge err in her charge to the jury? Montepeque contends that the trial judge erred in three ways:

• She did not properly charge the jury on the standard of care in an emergency situation;
• She did not properly charge the jury on the burden of proof; and
• Her charge was unbalanced and unfair.

3. Does the conduct of counsel for State Farm during the trial warrant this court's intervention?

4. If the answer to question 1, 2, or 3 is yes, should this court grant judgment for Montepeque in the amount of damages assessed by the jury ($449,900) or order a new trial?

[5] I would answer "no" to questions 1, 2 and 3, and would therefore dismiss Montepeque's appeal.

B. Details of the Accident and the Events Leading Up to It

[6] Sometime between 11:00 and 11:30 P.M., the evening before the accident, Montepeque and her friend Rosa Dominguez went to Tiger Jack's, a bar in London, Ontario. They stayed only a short time. Montepeque said that she did not drink at all at Tiger Jack's. But while there, she and Dominguez ran into an acquaintance of hers, a man named Francesco Pimentel. He suggested that they go to another bar in a small town outside London, where his friend was playing music. The other two agreed. Montepeque drove.

[7] The evidence is unclear on how long it took the three to get to the second bar. Montepeque testified that it took "some time" and agreed that it was more than 10 minutes, while Dominguez said that it took around 40 minutes. Pimentel did not testify at trial.

[8] The evidence is also unclear on how long the three stayed at the second bar. Montepeque said they were there for 10 to 15 minutes. Dominguez said they only "looked around" and then left. The accident occurred on their return to London. Again the record is unclear when exactly the accident occurred, but on the evidence it seemed to have been sometime between 12:30 and 2:30 A.M.

[9] Both Montepeque and Dominguez testified about Montepeque's driving speed, the weather, the road conditions, when the oncoming car was visible, and what caused the accident.

[10] Montepeque said that she was driving at 85 km/hour, just above the speed limit of 80 km/hour. She said that she was unfamiliar with the highway and was taking directions from Pimentel. She also testified that the weather was clear and the road conditions were good. Dominguez confirmed the speed at which Montepeque was driving, but said that the weather was foggy and the road was wet.

[11] Montepeque testified that she first saw an oncoming car about "half a block away", as she was approaching a gradual curve in the two lane highway. At the time, she agreed that the other car looked like it was in its lane. Only when the other car was "exactly in front" of her – she estimated about one metre away – did she notice that it had crossed into her lane.

[12] Montepeque and Dominguez gave somewhat conflicting versions of the accident. Montepeque said that the headlights from the other car blinded her. She got scared and panicked. She heard Dominguez yelling "be careful!" She closed her eyes and veered her car to the right, causing her to lose control when she hit either snow or gravel on the shoulder. She did not open her eyes until after her car had rolled over in the ditch. When she was asked how far into her lane the other car had come, she replied: "the only memory I have is the lights in front of me coming toward me". She agreed that they were "headlight to headlight". She thought that the other car was going faster than hers.

[13] Dominguez, on the other hand, testified that when she first saw the other car, it was in the "middle of the road". She initially thought that the other car would go back into its lane, but when she realized it wouldn't, she told Montepeque to "be careful". She said that at this point, Montepeque was already breaking and turning right to avoid the other car. She said Montepeque lost control of her car after hitting black ice.

[14] Constable Josh McCallum investigated the accident. He arrived at the scene shortly after 2:29 A.M. and immediately took witness statements and prepared a motor vehicle accident report. He said that Montepeque and her two passengers gave generally consistent accounts of what had occurred. He agreed with Montepeque that the weather conditions were good and the road was clear. He also said that Montepeque's breath did not smell of alcohol. He examined the road and said he saw skid marks from Montepeque's car, but not from the other car.

C. Issues

(1) Should the Verdict Be Set Aside Because the Jury's Answers to Questions 1 and 9 Were Inconsistent?

[15] The jury answered "no" to question 1, the fundamental question whether the negligence of an unidentified driver caused or contributed to the accident. The inconsistency on which Montepeque relies is the jury's answer to another question, question 9, which was required because of her claim under her unidentified motorist coverage policy with State Farm.

[16] As the other driver was never identified, Montepeque claimed under s. 5 of the Ontario Automobile Policy and OPCF 44R Family Protection Coverage. Under s. 5.2.1 of the Ontario Automobile Policy, an insured claimant has "a legal right to recover as damages from the owner or driver of an uninsured automobile" an amount "up to the limits in this Section." Section 5.7.1.1 limits coverage to "the minimum limits for automobile liability insurance in the jurisdiction in which the accident happens", which in Ontario is $200,000.

[17] Section 3 of OPCF 44R provides an insured claimant with excess coverage for an amount over $200,000, up to the amount that the claimant is legally entitled to recover from a driver or owner of an "unidentified automobile". But to receive the excess coverage amount from one's insurer, the claimant must meet an additional evidentiary requirement. The claimant's "own evidence of the involvement" of the unidentified automobile "must be corroborated by other material evidence". OPCF 44R defines "other material evidence" to mean either "independent witness evidence" or "physical evidence indicating the involvement of an unidentified automobile".

[18] At trial, Montepeque claimed an amount against State Farm that was available to her only through her excess coverage policy under OPCF 44R. Question 9 was not originally included in the jury charge. In a post-charge conference with the trial judge, Montepeque's counsel asked for a new question, which addressed the additional evidentiary requirement of OPCF 44R, to be added to the list of questions for the jury to answer. The trial judge agreed, and put question 9 for the jury as follows:

Is there independent witness evidence or physical evidence to corroborate the evidence of Ms. Montepeque, indicating the involvement of an unidentified automobile?

[19] The jury answered this question "yes". As there was no physical evidence, the jury must have concluded that Dominguez's evidence corroborated Montepeque's evidence of the involvement of an unidentified automobile.

[20] Before this court, Montepeque submits that the jury's answer to question 1 (the negligence of the driver of an unidentified car did not cause or contribute to the accident) and its answer to question 9 (Montepeque's evidence of the involvement on an unidentified automobile was corroborated by other material evidence) are inconsistent. She contends that this inconsistency yielded an unjust and unreasonable result.

[21] To deal with this issue, Montepeque could have brought a motion at the end of the trial under r. 52.08(1)(c) of the Rules of Civil Procedure. That subrule gives a trial judge discretion to direct that an action be retried with another jury where the jury "answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings". Montepeque did not bring a motion under r. 52.08(1)(c). Nonetheless, she is not precluded from raising on appeal an inconsistency in the jury's answers.

[22] However, the standard of appellate review becomes relevant. In a civil case, an appellate court has a very limited right to set aside the verdict of a jury for unreasonableness. Where the trial judge's charge is fair and accurate, and correctly states the applicable law, the jury's verdict will be set aside only where it is so unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it: see Lazare v. Harvey, 2008 ONCA 171.

[23] This standard for appellate intervention is stringent. But like the rest of us, civil juries are not infallible. On occasion they make mistakes. If I were convinced that the jury's answers to questions 1 and 9 were irreconcilable, I would hold that its verdict was so unjust and unreasonable that appellate intervention was warranted. But I am not so convinced.

[24] At trial, Montepeque's position was that the driver of the unidentified car was negligent by failing to remain in his or her own lane and instead crossing into Montepeque's lane, and that the driver's negligence caused or contributed to the accident. Montepeque also took the position that she was not contributorily negligent because she "did the only thing that she could do in the circumstances to avoid a head-on crash". State Farm's position was two-pronged. First, State Farm argued that there never was another car. Second, and in the alternative, it argued that if there was another unidentified car, the driver did not cross into Montepeque's lane and therefore was not negligent.

[25] By its answer to question 9 the jury must have rejected State Farm's contention that there was no unidentified car, and instead concluded that an unidentified car was there and was "involved" in the incident. But by its answer to question 1, the jury must have disbelieved Montepeque's and Dominguez's evidence that the unidentified car crossed the centre line, and thus concluded that the car's driver was not negligent. Those two conclusions are not inconsistent; they are reconcilable.

[26] Questions 1 and 9 address different issues. Question 1 asks whether Montepeque proved on a balance of probabilities that the driver of the unidentified car caused the accident by crossing the center line. Question 9 does not deal with Montepeque's onus of proof or with causation. It simply asks whether there was corroboration for Montepeque's evidence of the "involvement" of an unidentified car.

[27] Legal "causation" and mere "involvement" differ. The latter could have existed without the former. There was evidence that supported the jury's answer to question 1, and yet, at the same time, supported its answer to question 9. In other words there was evidence that an unidentified car was "involved", but Montepeque had failed to prove that its driver had crossed the center line.

[28] The following pieces of evidence support the consistency of the jury's answers to questions 1 and 9:

• Montepeque was unfamiliar with the highway, yet she was driving above the speed limit;
• She admitted that the other car was in its proper lane at least up to a half a block away from her;
• She claimed that she reacted when the other car was "exactly on top of her" or one metre away, a claim that was implausible because if the cars were that close, she could not have avoided a collision;
• She also said that she closed her eyes as she swerved to the right, casting doubt whether she really saw the position of the other car;
• She could not tell how far the other car came into her lane, likely because its headlights blinded her, leading to the reasonable inference that the other car may not have been in her lane at all;
• Montepeque's evidence and Dominguez's evidence conflicted on what caused the accident. Montepeque said she lost control as she swerved to avoid the other car; Dominguez said that Montepeque lost control only after she braked and slid on some black ice. This conflict may have caused the jury to disbelieve both accounts of how the accident happened;
• The other car did not leave any skid marks, from which the jury could infer that its driver did not need to take evasive action because the car was in its proper lane.

[29] The jury's answers to questions 1 and 9 were consistent, and reconcilable on the evidence. For that reason the jury's verdict was not unreasonable.

[30] As an aside, I note that because of its answer to question 1, the jury did not need to answer question 9. The likely explanation why the jury answered it is that question 9 was not initially put to the jury. As I mentioned, Question 9 was only added at the request of Montepeque's counsel to address Montepeque's eligibility for excess coverage. This context explains why the trial judge did not stipulate in her instructions to the jury that it did not have to answer question 9 if its answer to question 1 was "no".

(2) Did the Trial Judge Err in Her Charge to the Jury?

[31] As I said in the introduction, Montepeque submits that the trial judge's jury charge contains three errors:

• It did not properly charge the jury on the standard of care in an emergency situation;
• It did not properly charge the jury on the burden of proof; and
• It was unbalanced and unfair.

[32] I would not give effect to any of three branches of Montepeque's submission. Two points of context are important.

[33] First, the trial judge gave counsel a draft of her charge and invited comments on it before she gave it to the jury. Of the three concerns about the charge now raised on appeal, Montepeque's trial counsel raised only the first concern with the trial judge, and seemed satisfied with the way the trial judge resolved his concern.

[34] In a civil case, the failure to object at trial is usually fatal on appeal because "it is an indication that trial counsel did not regard as important or necessary the additional direction now asserted": Marshall v. Watson Wyatt & Co., 57 O.R. (3d) 813, at para. 15. An appellate court can still give effect to an objection to an aspect of a trial judge's jury charge raised for the first time on appeal, but only if not giving effect to the objection would cause a miscarriage of justice: see Kerr v. Loblaws Inc., 2007 ONCA 371, 224 O.A.C. 56, at para. 32; and Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6).

[35] Second, as this court has often said, a trial judge's charge need not be perfect to withstand appellate intervention. Recently in Hansen v. Williams, 2014 ONCA 118, at para. 11, citing Brochu v. Pond, 62 O.R. (3d) 722, at para. 68, this court concisely stated the standard of appellate review of a trial judge's civil jury charge as follows:

The trial judge's charge did not need to be perfect. Absent an error that amounts to a substantial wrong or a miscarriage of justice, or circumstances where the interests of justice otherwise so require, a new trial will not be ordered.

(a) The Standard of Care in an Emergency Situation

[36] Montepeque submits that, because she was facing an emergency situation when she saw the oncoming unidentified car, the trial judge should have instructed the jury that Montepeque could not be expected to act as she might in calmer circumstances. Before the trial judge, Montepeque wanted an instruction similar to the "agony of the moment" instruction approved by the British Columbia Supreme Court in Soto v. Peel, 2013 BCSC 409, at para. 92:

[W]here the plaintiff is compelled to make a quick decision in the 'agony of the moment' he is not expected to take into account all the considerations that a calmer appraisal of the situation might present to the mind. Perfect foresight and presence of mind are not required. This rule, sometimes called the 'agony of the moment' rule, is merely a particular application of the rule that the standard of care required of both plaintiff and defendant is that of a reasonable [person].

[37] The trial judge's draft charge did not contain an express "agony of the moment" instruction. Instead, it contained the following sentence, to which Montepeque objected: "[A driver] must take proper precautions to guard against risks, which might reasonably be anticipated to arise from time to time as she proceeds on her way." Montepeque's counsel specifically objected to the phrase "from time to time", as to him it did not capture the emergency nature of the situation facing his client. He proposed that the trial judge eliminate the phrase he had objected to, and instead only include the words "against risks which might reasonably be anticipated." If she did that he said "I can live with it."

[38] The trial judge agreed with this proposal, as did State Farm's counsel. The trial judge then charged the jury as Montepeque's counsel had proposed:

I will now first address first the issue of liability and dealing specifically with the operation of a motor vehicle; a driver of a motor vehicle must exercise at all times the same manner of care and caution as might be expected in like circumstances of a reasonably careful driver. He or she must take proper precautions to guard against risks, which might reasonably be anticipated to arise. This degree of care and nothing more is expected of her. She is not asked to maintain a standard of care of perfection or to take extravagant precautions. A driver's only duty is to anticipate what is reasonably likely to happen.

[39] I see no error in this charge. It captured Montepeque's duty in an emergency situation by stressing that she was not held to a standard of perfection, and was only obliged to guard against risks that she might reasonably anticipate would arise. The jury, using its common sense, would have had no difficulty in appreciating the circumstances in which Montepeque said she found herself.

(b) The Burden of Proof

[40] By crossing the center line of a road, a driver breaches s. 148(1) of Highway Traffic Act. A driver who breaches s. 148(1) is prima facie negligent and bears the onus of explaining that the accident could not have been avoided by the exercise of reasonable care: see El Dali v. Panjalingam, 2013 ONCA 24, 113 O.R. (3d) 721, at paras. 17-18.

[41] The trial judge charged the jury that Montepeque had the burden of establishing on a balance of probabilities that the negligence of the driver of the unidentified car caused her injuries. But Montepeque points out, correctly, that the trial judge did not expressly charge the jury on the shifting onus applicable to a driver who has breached the Highway Traffic Act. That is, the trial judge did not instruct the jury that if the unidentified car crossed the center line, the burden of proof shifted to the car's driver to disprove negligence. Montepeque contends that the trial judge's failure to do so was an error of law, for which we should set aside the jury's verdict. I do not accept Montepeque's contention.

[42] It would have been preferable for the trial judge to have expressly charged the jury on the shifting burden of proof. But that instruction was not asked for at trial. And the trial judge's actual instruction conveyed the essence of the parties' positions. The trial judge charged the jury:

State Farm alleges there was no second vehicle or, alternatively, that if there was another vehicle it was not being driven in a negligent manner that is at no time was the other vehicle in, or partially in, Ms. Montepeque's lane of traffic. [Emphasis added.]

[43] State Farm's consistent position throughout the trial was that, if the jury found that there was another car, its driver did not cross the center line into Montepeque's lane. State Farm never took the position that if the other driver did cross the center line, that driver was nonetheless not negligent. As is at least implicitly evident in the trial judge's charge, State Farm effectively conceded that if the other driver crossed the center line, the other driver was negligent. I am satisfied that the jury would have understood State Farm's position. Thus, the trial judge's failure to charge the jury expressly on the shifting burden of proof did not cause a miscarriage of justice.

[44] I add one other point on the burden of proof. In one section of her factum, Montepeque states that the trial judge failed to charge the jury on the potential negligence of the unidentified driver in approaching with high beam headlights. Montepeque did not plead in her statement of claim that the use of high beams amounted to negligence. Nor did her counsel mention high beams in his closing address to the jury. He argued the case solely on the ground that the unidentified driver was negligent in crossing the center line into Montepeque's lane. The trial judge cannot be criticized for failing to instruct the jury on an issue neither pleaded nor argued.

(c) Unbalanced and Unfair Charge?

[45] Montepeque submits that the trial judge's charge did not review the evidence and positions of the parties in a fair and balanced way. I do not agree.

[46] The trial judge's charge on the parties' positions and the evidence was relatively brief, but it was adequate. She summarized the evidence in a balanced way. That summary did not deprive Montepeque of a fair trial.

[47] Moreover, counsel for Montepeque had the opportunity both before and after the charge was given to comment on the summary of the evidence on liability. He had one minor objection to the trial judge's failure to include a piece of evidence. He did not suggest that the summary was unfair or unbalanced. Again his failure to object is telling. I can do no better than quote the words of this court in Caton v. Devecseri Estate, 2014 ONCA 52, at para 4:

[I]n our view, read as a whole, the charge was not unbalanced or unfair to the appellant. The trial judge carefully summarized the appellant's evidence and his position on the question of liability. The appellant's counsel, like other counsel, was actively involved in reviewing and commenting upon the trial judge's draft charge. The appellant's counsel did not object to the trial judge's instruction on concurrent liability or object on the basis of the overall fairness of the charge. This strongly suggests that this experienced counsel saw no overall imbalance or unfairness in the charge on the basis now urged before this court. At the end of the day, we are satisfied that this jury would have understood that it was free to accept or reject any of the liability theories advanced by the respondents against the appellant.

[48] I would not give effect to Montepeque's submissions on the trial judge's charge to the jury.

(3) Did the Conduct of Counsel for State Farm During the Trial Warrant This Court's Intervention?

[49] Montepeque argues that the conduct of State Farm's counsel at trial – not Mr. Paliare or Ms. Lie - was inappropriate. Combined with the jury's findings, Montepeque argues that counsel's conduct created an appearance of unfairness warranting appellate intervention. I do not accept this argument.

[50] Montepeque calls into question the following conduct of State Farm's trial counsel:

• Humorous remarks to the jury on two occasions at the elevator lobby outside the courtroom;
• Humorous remarks during the cross-examination of Montepeque's witnesses; and
• Two misrepresentations witnesses made in the presence of the jury.

[51] This conduct prompted Montepeque's counsel to bring a motion to strike the jury. The trial judge dismissed the motion and, after the jury's verdict, gave reasons for her ruling. Montepeque does not directly challenge the trial judge's ruling or her findings on the conduct of State Farm's trial counsel. Instead she asks this court to reconsider that counsel's conduct afresh.

[52] As I will discuss, to the extent the conduct of State Farm's trial counsel was inappropriate, the trial judge adequately addressed Montepeque's concerns.

(a) The Two Incidents at the Elevator Lobby

[53] What occurred at the elevator lobby on the two occasions that Montepeque relies on is disputed. Montepeque claims that on each occasion, State Farm's trial counsel made a joke in the presence of the jury, which caused the jury to laugh. Montepeque's counsel expressed concern with "the jury feeling some connection perhaps or some connection with – with defence counsel that they don't have with me." State Farm's trial counsel denied that he had talked to or engaged with any juror. He told the trial judge that he had been joking with his associate and the court services officer, while they and the jury were waiting for the elevator.

[54] In her ruling, the trial judge found that she lacked the evidence to resolve the dispute. At para. 15 of her reasons, she held that "there is no proper evidence before me which might allow me to consider any prejudice to the plaintiff arising from [State Farm's trial counsel's] interaction with the jury outside the courtroom."

[55] Nonetheless, when Montepeque's counsel raised his concern, the trial judge asked State Farm's trial counsel to "steer clear" of the jury and give them a "wide berth" to avoid any future issues. She also discussed with both counsel whether she should address the matter specifically in her charge. Counsel for Montepeque responded: "Only in a general way. I'm not asking that Your Honour address it specifically."

[56] The trial judge did as Montepeque's counsel requested. She added to her charge to the jury a specific direction that the jury decide the case solely on the evidence, not on the conduct of the lawyers:

You must not decide this case on a preference for the presentation style, demeanor or personality of any particular lawyer involved in this case. Whether or not you agreed with the approach taken by a particular lawyer with regards to questions asked, the length of examination, the order of witnesses or the evidence called in support of his or her client's case should not and must not affect your decision-making. Only the evidence is relevant and not the manner in which it was elicited.

(b) Humorous Remarks in the Courtroom

[57] Montepeque's counsel also complained about counsel for State Farm's allegedly humorous remarks during his cross-examination of Montepeque's witnesses. In her ruling the trial judge appropriately found that counsel's use of humour during cross-examinations was hardly a basis to strike the jury:

[State Farm's counsel's] editorializing during his cross-examination of the plaintiff's witness is one feature of his litigation style. I suspect he uses his sense of humour as a tool for effective cross-examination with the hope it endears him to the witness and he is therefore able to elicit the evidence he wants. Whatever the reason, it is hardly grounds for striking the jury that a collateral benefit is that he also endears himself to the jury or some of its members. Both my opening and closing instructions expressly address this issue. Because of the concern expressed by [Montepeque's counsel], additional language was added to my closing charge to further address this issue. I must presume the jury will act as instructed. There is no reason to doubt their ability to abide by my instruction and to deliver a verdict based solely on the evidence without influence by extraneous matters.

[58] Moreover, the trial judge's direction to the jury (which I referred to above) to decide the case based on the evidence and not on the conduct of the lawyers adequately addressed any concern arising from the way in which State Farm's trial counsel conducted cross-examinations. And, as the trial judge properly noted in her ruling, she had no reason to doubt the jury's ability to follow her instructions.

(c) The Two Alleged Misrepresentations

[59] Finally, Montepeque contends that State Farm's trial counsel, in the presence of the jury, made two misrepresentations – one concerning a letter sent from Montepeque's counsel to him, the other concerning the scheduling of witnesses. Montepeque further contends that these misrepresentations caused her irreparable prejudice.

[60] The two incidents in question occurred on the same day. The first incident occurred when State Farm's trial counsel referred to a "shot across the bow" – a letter sent from Montepeque's counsel – that prevented State Farm's experts from speaking with a trial witness. Montepeque alleges that these comments were likely to inflame the jury.

[61] The second incident arose after Montepeque's counsel had cross-examined State Farm's first witness on damages. State Farm's trial counsel then announced that he would be calling one further witness, a doctor. According to Montepeque, State Farm's trial counsel created the impression that there had been discussions between counsel resulting in an agreement that would dispense with the need to call any additional witnesses on Montepeque's pecuniary damages claim. The trial was then adjourned for several days to accommodate a juror's unavailability. When the trial resumed, State Farm's trial counsel served a new economic loss report and announced that he would be calling five more witnesses. Montepeque alleged that this conduct created the impression Montepeque had acted unreasonably and was unwilling to reach an agreement that would allow State Farm to call one witness as opposed to five.

[62] As the trial judge recognized, State Farm's trial counsel should have made his statements in the absence of the jury. But the trial judge, correctly in my view, rejected the suggestion that either statement in any way prejudiced Montepeque. She ruled at paras. 12-14:

While ideally the comments of [State Farm's trial counsel] addressing future scheduling made on October 28th should have been made in the absence of the jury, they were directed to the court, not the jury. The extent to which any of the jurors was listening to these comments is unknown. Certainly, none of the jurors would have known the context for [State Farm's trial counsel's] comment "shot across the bow" and I cannot imagine any juror attributing any ill-will to the plaintiff in the absence of such context.

There is no evidence to support the plaintiff's submission that [State Farm's trial counsel] intended to goad the jury into thinking the parties were collaborating to reduce the remaining evidence to be called when in fact they were not, so as to prejudice the plaintiff. The defendant is entitled to call such witnesses as may be required to answer the plaintiff's case. Defendant's counsel perhaps may be criticized for being overly ambitious in his estimate of the number of witnesses needed to make the defendant's case as it appears that upon reflection during the break in trial, the defendant reassessed its case and determined additional evidence was needed. This is the defendant's right.

There is no basis to conclude or infer that extending the trial time to accommodate five rather than one defence witness would incense the jury to the prejudice of the plaintiff. I have found this jury to have been most understanding, patient and accommodating throughout the trial. They appear attentive, conscientious and eager to fulfill and complete their duties no matter how long the trial may take.

[63] I see no error in the trial judge's ruling.

[64] I conclude that this court has no basis to intervene because of the conduct of State Farm's trial counsel. Any concerns that arose from his conduct were appropriately dealt with by the trial judge. I would not give effect to Montepeque's submissions on this issue.

(4) Should the Court Grant Judgment for Montepeque in the Amount of Damages Assessed by the Jury or Order a New Trial?

[65] In the light of my answers to the first three questions, it is unnecessary to address this issue.

D. Conclusion

[66] I conclude as follows:

• The jury's answers to questions 1 and 9 were not inconsistent;
• The trial judge did not err in her charge to the jury; and
• The conduct of trial counsel for State Farm does not warrant our intervention.

[67] I would therefore dismiss the appeal, with cost fixed at $20,000 inclusive of disbursements and HST.

Released: December 7, 2017

"John Laskin J.A."

"I agree. K. Feldman J.A."

"I agree. R.G. Juriansz J.A."

Footnotes

[1] R.R.O. 1990, Reg. 194.

[2] Because the jury found that the driver of the unidentified car was not negligent, it did not need to answer whether Montepeque was contributorily negligent.

[3] R.S.O. 1990 c. H.8.