Bodenstein v Penley, 2017 ONSC 27

Court File and Parties

COURT FILE NO.: CV-13-116660-00 DATE: 20170103 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Heather Bodenstein and Leon Bodenstein Plaintiffs – and – Laurie Rachel Penley and Stephen Penley Defendants

Counsel: Maurice Benzaquen, for the Plaintiffs Keith Smockum, for the Defendants

HEARD: December 2, 2016

REASONS FOR DECISION

Gilmore J.:

Overview

1This is the plaintiffs’ motion for an order to set aside the jury verdict on liability only. The damages verdict is not in issue in this matter. The plaintiffs seek to have the trial judge substitute her own decision for that of the jury on the issue of liability. In the alternative the plaintiffs seek a new trial on the issue of liability only.

2The defence has a pending threshold motion and a motion for judgment and costs which will be determined at a later date depending on the results of this motion.

Background

3The accident which is the subject of this litigation occurred on August 22, 2003. A jury trial took place before me in November and December 2015 with the jury charge being delivered on December 21, 2015.

4The plaintiffs allege that the accident was caused by the negligence of Ms. Penley who was driving the vehicle owned by her father Stephen Penley (now deceased). The defendants allege that the accident was caused by the negligence of the plaintiff Leon Bodenstein (“Mr. Bodenstein”).

5The plaintiffs’ version of events at trial was that Ms. Penley, while under the influence of alcohol illegally drove through a red light and struck the defendants’ vehicle head on. The defendants’ version of events at trial was that Mr. Bodenstein was attempting to make a left hand turn in front of the defendants’ vehicle which was proceeding through a green light.

6The jury returned their verdict and indicated there was no negligence on the part of either Ms. Penley or Mr. Bodenstein. Liability was not apportioned as between the parties.

7The jury was instructed on the issue of liability. The evidence given by different witnesses who witnessed the accident was reviewed with the jury and they were also encouraged to consult their own notes and recollections of the evidence. That portion of the jury charge which related to liability is set out at paragraph [84] of the charge as follows:

84Members of the jury, you have a difficult task. As you know, there are several different versions of what occurred on the evening of August 22, 2003. You will have to decide which version you accept as to what actually happened. Once you have reviewed the evidence, your own notes and recollections of the evidence you may find that the negligence of Ms. Penley and the negligence of Mr. Bodenstein contributed equally to Mr. Bodenstein’s injuries or you may find that you cannot decide how to divide the blame. In that case you would find them each 50% to blame. Liability will then be divided equally between them. On the other hand, you may find Ms. Penley, say, 75% to blame and Mr. Bodenstein 25% to blame, or conversely, you may find Mr. Bodenstein, say, 60% to blame and Ms. Penley 40% to blame, or any other combination that adds up to 100%. You may also find Ms. Penley or Mr. Bodenstein 100% to blame.

8The charge was reviewed with counsel in its entirety and most of one day was spent on counsels’ submissions about suggested changes to the charge. By the time the amendments were made there were no further objections by counsel to the charge that was read to the jury.

9The positions of the parties are, briefly, as follows. According to the plaintiffs, there was no evidentiary foundation for the jury to conclude that there was no liability. No other event or person intervened which caused the accident. Only Mr. Bodenstein and Ms. Penley were involved. The jury failed to heed the trial judge’s instructions which were that if they were unable to decide on an apportionment of liability that they apportion it 50/50. There was no evidence presented which would support the jury’s verdict and it therefore must be set aside.

10The defence position is that the jury was properly instructed on the onus of proof. The jury determined that neither party met the onus of proof to show the other was at fault. Further, Ms. Penley had no memory of what occurred and Mrs. Bodenstein was looking down when the accident occurred. The only real evidence of what occurred was from Ms. Polhamus who did not attribute fault to Ms. Penley. That evidence was uncontradicted. There was also the evidence of Mr. Bodenstein who could only recall sitting at a red light and someone driving at him but nothing more. Further, there was the evidence of the debris trail from both vehicles which was in the middle of the intersection which did not align with what Mr. Bodenstein said occurred. The jury was instructed on all of the above evidence. The jury determined that there was insufficient evidence to determine what happened and as the finders of fact were entitled to conclude that there was no liability.

Analysis and Ruling

11This motion turns on the answer to two questions:

(a) Was there some evidence to support the jury’s verdict that neither party was liable? Or,

(b) Was the jury’s answer to question 5 on the verdict sheet such that it cannot in law provide a foundation for judgment?

12Based on the facts of this case and the case law, the answer to question one must be yes and the answer to question two must be no. In support of those findings, the following cases are of assistance.

13In Hill v. Church of Scientology of Toronto, the court held that: “a trial judge may refuse to accept the verdict of a jury only when she or he considers that there is no evidence to support the findings of the jury, or where the jury gives an answer to a question which cannot in law provide a foundation for a judgment.”

14The standard of review is one which is unquestionably high and is reflected in Stilwell v. World Kitchen Inc., 2014 ONCA 770 (Ont. C.A.) in which the Ontario Court of Appeal stipulated that a civil jury verdict may only be set aside where it is plainly unreasonable. In coming to that conclusion the verdict must be given a fair and reasonable interpretation in light of the evidence and circumstances (see paras. 33-36).

15In determining whether there is an evidentiary basis for the jury’s verdict, the decision in Sandhu v. Wellington Place Apartments at para. 12 assists. Horkins, J. disagreed with the defence submission that there must be cogent and compelling evidence to support the verdict. In her view, only a situation in which the verdict was devoid of any evidentiary basis would suffice. Otherwise, even a “gossamer thread” of evidence would do.

16There have certainly been cases in which the answers to one or both questions in paragraph 11 have resulted in a jury verdict being set aside. For example, in Teskey v. Toronto Transit Commission, the jury assessed the damages for both defamation and malicious prosecution at zero. The plaintiff submitted this verdict was unreasonable and could not be supported on either the law or the evidence. The court agreed and held that the jury’s finding of zero damages was not supportable based on undisputed evidence (paras. 57 and 58). The court requested written submissions on damages and proceeded to assess damages on that basis.

17In Gauthier v. Gauvin, the Ontario Court of Appeal ordered a new trial noting that this was both an “extraordinary” and “expensive” remedy. In that case the jury found the defendant negligent in that “the defendant failed to look right and left before proceeding across the intersection.” The jury also found the plaintiff negligent in that “she failed to exercise due caution by proceeding through the intersection because she failed to see Gauvin’s car.” The jury then proceeded to attribute 95% liability against the defendant and 5% against the plaintiff. The evidence on liability in that case, as in the case at bar, was in direct conflict.

18I find that the evidence in this case does provide an evidentiary foundation for the jury’s verdict (albeit a somewhat “gossamer” one). The jury was instructed on the onus of proof. It was within their jurisdiction, and in accordance with the instructions given to them in the charge, to conclude that neither party had proven negligence. That is, that Ms. Penley was not negligent because Mr. Bodenstein’s description of the accident was not borne out by the debris trail or Ms. Polhamus’ description of the accident. Mr. Bodenstein was not negligent based on his own evidence and the evidence of the debris trail. The jury found, as they were entitled to do, that neither party had met their burden of proof. Therefore, there was an evidentiary foundation for their verdict, which was a body of evidence that they did not accept or believe.

19As for the verdict lacking a foundation in law, I find that the jury was properly instructed on negligence and given various options. Based on the other answers given to questions posed to them in the verdict sheets, they clearly understood their role and their instructions. This is not a case where the jury simply “opted out” of making a decision. The evidence of what happened at the scene of the accident was clearly contradictory. However, unlike in the Gauthier decision cited above, they did not attempt to impose some form of unrealistic division of responsibility. They were unable to find that either party was negligent based on the evidence that was available to them. In my view, they followed their instructions properly in finding no negligence where, based on their finding of the facts and in consideration of the respective burdens of proof, no negligence was possible.

20Based on all of the above, the plaintiffs’ motion is dismissed. Counsel shall contact my assistant Robyn Pope at Robyn.Pope@ontario.ca to set up a conference call to deal with next steps and costs of this motion.