ONTARIO SUPERIOR COURT OF JUSTICE

OSHAWA COURT FILE NO.: 57673/08
DATE: 2012-02-01

BETWEEN :

Sabrina Reece

Plaintiff

— and —

Randy Rumney, New Group Holdings Ltd., Tri-Gro Enterprises Ltd. operating as Greenwood Mushroom Farm and Snobelin Mushrooms Ltd.

Defendants

COUNSEL:

L. Craig Brown and Stacey L. Stevens for the Plaintiff

Joseph Lin and Sylvia Haak for the Defendants

HEARD: January 10, 2012

J.E. Ferguson J.

ENDORSEMENT

[ 1 ] This is a motion by the Plaintiff for an Order setting aside the verdict of the jury delivered on December 8, 2011 on the basis that there was no evidence to support the jury’s findings and for an Order that:

(a) the action be retried with another jury; or

(b) a verdict be delivered by the trial judge (the plaintiff acknowledged at the motion that this likely was not a realistic solution).

[ 2 ] This action arises out of a rear end motor vehicle collision which occurred on October 7, 2006. The Defendant Randi Rumney (“Rumney”) rear-ended the plaintiff while she was riding her motorcycle westbound on Myrtle Road in the Regional Municipality of Durham. Prior to the collision, the plaintiff was stopped at the t-intersection of Dagmar Road and Myrtle Road. She turned west onto Myrtle Road and was riding ahead of Rumney. The plaintiff was subsequently convicted of failing to yield contrary to section 136(b) of the Highway Traffic Act (HTA).

[ 3 ] The trial of this matter commenced on November 14, 2011 before a jury in the City of Oshawa. The parties had drafted an Agreed Statement of Facts which identified the essential findings of facts underlying the decision of the Justice of the Peace (“J.P.”) in the HTA trial.

[ 4 ] After hearing submissions on how the evidence could be led using an Agreed Statement of Facts in order to avoid conflict with any factual findings made by the J.P., I ordered that the evidence on liability would be characterized by distance and not speed. We anticipated potential problems with a conflict with the J.P.’s findings if speed and time were used.

[ 5 ] As a result, the parties were not permitted to call any evidence that would undermine the factual findings of the J.P. The jury were told this at the outset and were reminded of this several times during the trial. As part of my charge, I told the jury that these facts were binding on them.

[ 6 ] At the conclusion of the trial, the jury were required to answer five questions regarding the liability of the parties and one question regarding damages sustained by the plaintiff. The jury was also provided with a chart titled Schedule “A” which was a summary of the evidence given by Nancy Lok (the occupational therapist) with respect to the various future care needs.

[ 7 ] At the conclusion of their deliberations the jury delivered the following verdict with respect to the parties negligence:

Q. Has the plaintiff satisfied you on a balance of probabilities, that there was negligence on the part of the defendant, Randi Rumney, which caused or contributed to the collision?

A. Yes.

Q. If the answer to question one is yes, in what way was the defendant, Randi Rumney, negligent? Please state fully the particulars of the negligence.

A. Once Sabrina caused the immediate hazard, there was a small probability that Randi might have been able to take more action than she did.

Q. Has the defendant satisfied you on a balance of probabilities, that there was negligence on the part of the plaintiff, Sabrina Reece, which caused or contributed to the collision?

A. Yes.

Q. If the answer to question three is yes, in what way was the plaintiff, Sabrina Reece, negligent? Please state fully the particulars of the negligence.

A. In accord with the traffic conviction, Sabrina was negligent in pulling out ahead of the oncoming van. She failed to judge the acceleration required to safely merge with oncoming traffic, she also did not take advantage of avoidance opportunities, after completing the turn.

Q. If your answer to questions one and three are yes, then state in percentages the degrees of fault or negligence on the part of the defendant, Randi Rumney, and the plaintiff, Sabrina Reece.

The defendant, 10 percent.

The plaintiff, 90 percent.

[ 8 ] At the conclusion of their deliberations the jury delivered the following verdict with respect to the damages sustained by the plaintiff:

Q. Disregarding the apportionment of negligence you made in response to the questions above, at which amount do you assess the damages sustained by the plaintiff, in the following categories:

(a) For Sabrina Reece’s pain and suffering and loss of enjoyment of life on the date of collision and into the future, we find one hundred thousand.

(b) Sabrina Reece’s future loss of income from November 14 th , 2011 and into the future, jury finds seventy thousand.

(c) Sabrina Reece’s future medical, rehabilitation and care needs from November 14 th , 2011 into the future, we find one hundred-fifteen thousand.

[ 9 ] The jury questions were made an exhibit at the end of the trial. The Schedule A was not returned by the jury and was not made an exhibit. Although the plaintiff initially indicated in her notice of motion that this constituted a ground behind this motion, counsel agreed that the jury had been provided with calculators and provided the decision regarding the future care costs on the question and answer sheet. As a result, this submission was essentially abandoned.

[ 10 ] The plaintiffs called Craig Wilkinson, who was qualified as an expert in the area of investigation and reconstruction of accidents and collisions and the application of human factor principles to the accident.

[ 11 ] Mr. Wilkinson’s evidence followed the Agreed Statement of Facts and addressed the range of distances available to Rumney to avoid colliding with the rear end of the plaintiff’s motorcycle. Based on the Agreed Statement of Facts, Mr. Wilkinson reached the following conclusions:

(1) For a Reece motorcycle travel distance to impact of 50 m and a maximum speed of the Reece motorcycle at impact of 50 km/h, the vehicle would have an average acceleration rate of about 0.2g.

(2) In order for the Rumney van to arrive at the same time as the Reece motorcycle, it would travel 160 m at the assumed speed of 80 km/h.

(3) Only the upper bound distance for the Rumney van from the intersection when the Reece motorcycle started its turn of 110 m is consistent with the remaining technical assumptions.

(4) If the Rumney van was at the lower bound distance provided (60 m from the intersection and 50 m west to impact) when Ms. Reece began her turn, its average speed would have been 55 km/h in order to arrive at the point of impact at the same time.

(5) For a Rumney van travel distance of 160 m and a perception-response time of 1.2 to 1.8 seconds, Ms. Rumney would have had 120 to 133 meters to perform some form of avoidance response.

(6) Ms. Rumney had more than enough distance available to emergency brake to a stop prior to a collision occurring.

(7) If Ms. Rumney responded after a perception-response time of 1.2 to 1.8 seconds, she could have decelerated at an average rate of 0.05g and just avoided a collision. This deceleration rate would likely require no active braking by the driver; only the gas pedal would have to be released.

(8) If Ms. Rumney decelerated at 0.15g, she could have reacted when the vehicles were as little as 23 m apart and still have avoided the collision.

(9) If Ms. Rumney decided to emergency brake at 0.7g, she could have reacted when the vehicles were as little as 5.5 m apart and have just avoided a collision.

[ 12 ] Essentially, it is the plaintiff’s position that based on this evidence; there was no evidence to support the split in liability made by the jury. The defence position, in a nutshell, was that the plaintiff’s HTA conviction provided some evidence which can support the jury’s finding with respect to apportionment of liability.

[ 13 ] With respect to the damages, the party’s positions are set out in their factums. The plaintiff candidly conceded that her ability to meet the test to set aside the verdict is not as strong as that for the liability finding.

The Law

[ 14 ] After a jury has delivered its verdict, the power of the trial judge to refuse to accept the jury’s verdict exists only in very limited circumstances. A trial judge can only refuse to accept the verdict of a jury “when she or he concludes that there is no evidence to support the finding of the jury, or where the jury gives an answer to a question which cannot in law provide a foundation for a judgment. Intervention is limited to verdicts bad in law, or devoid of any evidentiary support.” Teskey v. T.T.C. , (2003) 3 C.P.C. (6 th ) 181

[ 15 ] The jury is responsible for making findings of facts however; it is the function of the court to determine whether or not there is any evidence to support the findings.

McLean v. Knox, 2011 ONSC 7298

[ 16 ] The phrase “no evidence to support the jury’s verdict” describes the same circumstances as being “utterly devoid of evidentiary support”.

McLean v. Knox , supra

[ 17 ] The role of the trial judge to interfere with a jury verdict is limited to circumstances where the jury’s finding was unsupportable at law or there is no evidence on which the jury could have relied to come to their conclusion. It is not the role of the trial judge to weigh evidence or determine if the jury decision was perverse or unreasonable. Those are questions for the Court of Appeal.

McLean v. Knox , supra

Campbell v. Wolczak 2003 34594 (ON SCDC)

[ 18 ] In Segreti v. Toronto (City), although the verdict of the jury concerning damages was perverse, the trial judge refused to substitute his assessment of damages. There, the jury’s award amounted to less than the defendants had already paid into court. The Court was asked by plaintiff’s counsel to set aside the award of the jury as being perverse and assess the damages itself. The Court held:

In my respectful opinion, the answers to the jury were perverse. A reasonable award for future economic loss would have been $45,000 and for general damages $15,000.00. Neither counsel asked me to reinstruct the jury…Of more importance is the position of a trial judge instructing a jury that their award is so grossly inadequate that the verdict is perverse. I recognize that as a trial judge I have the discretion, proprio motu , to refuse to accept the verdict, provided I make it clear that if on reconsideration they are of the same view I will accept it. That is not the problem. The question is how to do it. Assuming that the reinstruction is done appropriately, the jury will want to know by how much the verdict is inadequate or excessive. Juries desire to do their work fairly and they look to court for guidance. Unfortunately the court cannot give that guidance…Returning to the submissions that I assess the damages myself and give judgment accordingly, I regret that I cannot do so. This would be tantamount to substituting a non-jury trial upon the parties . They are entitled to the verdict of a jury. [emphasis added]

Segreti v. Toronto , (1981), 20 C.P.C. 110 (Ont. H.C.)

[ 19 ] When considering if there was evidence to support a jury’s findings, it is not appropriate for the trial judge to invade the territory of the jury and examine the apportionment of fault. The apportionment of fault is uniquely a matter for the jury to determine.

Horita v. Graham , 1997 817 (BCSC)

[ 20 ] A jury’s apportionment of damages can only be disturbed in exceptional circumstances by an appellate court.

Jack (Litigation Guardian of) v. Kirkrude (2002) 2002 9922 (ON CA) , 155 O.A.C. 28 (OCA)

McIntyre v. Grigg , 2006 37326 (ON CA) , 83 O.R. (3d) 161 (OCA)

[ 21 ] With respect to damages, the assessment of damages is peculiarly within the province of the jury. An appellate court is not entitled to substitute its own judgment as to the proper award for that of the jury merely because it would have arrived at a different figure.

Hill v. Church of Scientology of Toronto , [1995] 2. S.C.R. 1130. (SCC)

[ 22 ] This motion is dismissed. The verdict of the jury shall be endorsed on the Trial Record and an Order shall issue regarding that verdict.

[ 23 ] I am not certain what the parties are doing with respect to the trial costs. Obviously, there are costs of this motion. Perhaps counsel could be in touch with the trial

co-ordinator to let us know what needs to be set up in that regard.

The Honourable Madam Justice J.E. Ferguson

DATE RELEASED: February 1, 2012