Court File and Parties

Court File No.: 12-56112 Date: 2017/03/27 Ontario Superior Court of Justice

Between: Tanya Nemchin, Plaintiff – and – Yvonne Green, Defendant

Counsel: Joseph Obagi and Adam Aldersley, for the Plaintiff Thomas Ozere and Kim Dullet, for the Defendant

Heard: March 24, 2017

Amended Ruling

Charge to the Jury

Corthorn J.

[1] The plaintiff requests that there be reference in the charge to the jury to the answers given by the defendant with respect to two specific questions. The questions and answers that are the subject of the plaintiff’s request are as follows:

Q. You are not suggesting to this jury that Ms. Nemchin was in any way responsible for this accident? A. Not at all.

Q. Ultimately, you would agree that your decision to enter that lane is what ultimately caused this accident? A. Yes.

[2] I note that there was no objection on behalf of the defendant to either question. After the second of the two questions was asked, the defendant responded before I was able to address the question. Immediately after she responded, I requested that the jury and the defendant leave the courtroom. I heard submissions from counsel for the parties as to whether an instruction to the jury was required. I determined that an instruction to the jury was required.

[3] The instruction given at the time was, in summary, that (a) the members of the jury are the triers of fact, (b) as such, it is their responsibility to determine who is at fault for the collision, (c) the views expressed by the defendant with respect to fault for the collision are nothing other than that – her views, and (d) the views expressed by the defendant carry no greater weight than the views, if any, expressed by the plaintiff as to who is at fault for the collision.

[4] In summary, the submissions on behalf of the plaintiff are that:

• The answers given by the defendant to each of the questions is an admission made in court;
• An admission made in court during cross-examination is to be given equal, if not greater weight, than an admission made out-of-court (with the latter admissible as an exception to the hearsay rule); and
• The jury should be instructed that they are to rely on the admission(s) unless there is evidence to contradict the admission.

[5] The defendant’s submission is that nothing need be said in the charge with respect to the two answers given. To quote counsel for the defendant, “the less said the better”.

[6] I find that the answers given are nothing other than the defendant’s view, as expressed in answer to a specific question. The answers given cannot be said to be based on an appreciation of all of the relevant evidence. The questions were not posed with that degree of specificity.

[7] For example, and as was noted by counsel for the defendant, in responding to the question as to whether Ms. Nemchin is in any way responsible for the collision, the defendant was not apprised of Ms. Nemchin’s evidence that she proceeded through the intersection:

• Unaware that Broadmoor Avenue did not extend to the far side of Smyth Road (i.e. that she was approaching a T-intersection);
• Without reducing the speed of her vehicle as she approached the intersection; and
• Although aware of the line of cars stopped in the lane of travel immediately to her left and unable to see beyond that line of cars.

[8] There is other evidence given by Ms. Nemchin that would, in my view, be relevant to the consideration by the defendant or anyone else in assessing whether Ms. Nemchin is at fault for the collision. Consideration of all of the relevant evidence is the function of the jury.

[9] There may be circumstances in which an admission secured in cross-examination is properly the subject of the charge to the jury. Such an admission might, for example, be as to the speed at which a party was driving at the time of a collision. Speed of the vehicles is one aspect of the evidence upon which the jury may rely in making its assessment as to potential liability. An admission to such a specific fact is in my view distinguishable from the type of response elicited from the defendant in this matter.

[10] In summary, I find that the answers given are not admissions of fact that warrant specific mention in the charge to the jury. They shall not be referenced as such in the charge to the jury.

Madam Justice Sylvia Corthorn Released: March 27, 2017

Note: Following release of the original ruling and a discussion with counsel, the amendment to paragraph 10 above was made for the sake of clarity.