



COURT OF APPEAL FOR ONTARIO

CITATION: Silvio v. 698743 Ontario Limited (J.
    DiFranco & Son Construction), 2014 ONCA 17

DATE: 20140109

DOCKET: C56604

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Darrin Silvio, Delores
    Beardwood and Darren Silvio Jr.

Plaintiffs (Respondents)

and

698743 Ontario Limited
    cob as J. DiFranco & Son Construction and Domenic DiFranco

Defendants (Appellants)

Alan Rachlin, for the appellant

Peter Lingard, Kiran Sah and Avery Dyck, for the
    respondent

Heard: January 7, 2014

On appeal from the judgment of Justice James A. Ramsay of
    the Superior Court of Justice, sitting with a jury, dated January 17, 2013.

ENDORSEMENT

[1]

The appellants, 698743 Ontario Limited cob as J. DiFranco & Son
    Construction and Domenic DiFranco appeal from the judgment of Ramsay J. of the
    Superior Court of Justice, sitting with a jury, dated January 17, 2013.  The
    only issue at the eight-day trial was liability and the jury apportioned liability
    as follows: the appellants  53 per cent, the respondent Darren Silvio  26 per
    cent; and the non-party Conrad Niessen  21 per cent.  Based on this
    apportionment and a pre-trial agreement as to a ceiling on the damages the
    plaintiffs could recover, the judgment awarded the plaintiffs damages of
    $1,100,000 and costs of $295,000.  The appellants appeal on several grounds.

[2]

First, the appellants assert that the trial judge did not properly
    charge the jury on the issue of proximate cause and, in particular, failed to
    charge the jury that they could find Mr. Silvio was solely responsible for his
    injuries.

[3]

We do not accept this submission.  In the component of his charge
    dealing with causation, the trial judge explained the but for test for
    causation and told the jury that they could find one or more proximate causes
    of the incident.  This was consistent with the leading causation case,
Resurfice
    Corp. v. Hanke
, 2007 SCC 7, at para. 21, and with the apportionment scheme
    of the
Negligence Act
, R.S.O. 1990, c. N. 1, s. 3.

[4]

Even if there was an error of law, we would apply s. 134(6) of the
Courts
    of Justice Act
and find that no substantial wrong or miscarriage of
    justice occurred.  The appellants theory on this issue depended upon Mr.
    Silvio having seen that the second barrier had been removed.  The jurys answer
    to Question 6 on the Verdict Sheet shows that the jury accepted that Mr. Silvio
    did not recognize the danger.

[5]

Second, the appellants contend that the trial judge erred in entering
    judgment for the respondents given their finding that the site was secure. 
    The appellants rely upon s. 3(3) of the
Occupiers Liability Act
,
    R.S.O. 1990, c. O. 2.

[6]

We disagree.  The trial judge carefully reviewed the evidence about
    whether the appellants had taken proper steps to modify or exclude their duty
    to make their property reasonably safe for persons entering the premises. 
    Moreover, in our view, the jurys written answer to Question 2 on the Verdict
    Sheet evinces a clear understanding of the operation of s. 3(3) of the
Negligence
    Act
:

3) Although the site was secure, DiFranco Construction failed
    to communicate to Highpoint Construction that they (Highpoint) were to be
    excluded from the site as of October 21
st
until October 24
th
.

[7]

The fact that the work site of the partly-built house was secure did
    not in the circumstances exclude liability under s. 3(3) given that Highpoint
    had been told it needed to fix the defects.  Its employees, including Mr.
    Silvio, could only do so by entering the site.

[8]

Third, the appellants contend that the trial judge compromised trial
    fairness by improperly interfering with the defendants cross-examination of
    witnesses.  They set out eight examples in their factum.

[9]

We do not accept this submission.  In the context of an eight-day trial,
    the small number of interventions during the defendants cross-examination of
    witnesses were directed at clarification of a witness evidence, ensuring that
    the defendants counsel was reading properly from an Examination of Discovery
    transcript, and limiting the number of times a question could be asked. 
    Although we might say that a couple of the trial judges interventions were
    unnecessary, we do not say that they were inappropriate.  In any event, they
    were far removed from the types of interventions discussed by this court in
McFarlane
    v. Safadi
(2004), 70 O.R. (3d) 599,
Ross v. Hern
, [2004] O.J. No.
    1186, and
Sargent v. Plaza Ontario Marble and Tile Inc.
, (2005), 205
    O.A.C. 249.

[10]

Fourth,
    the appellants submit that the trial judge compromised trial fairness by providing
    an unfair and unbalanced summary of the evidence in his charge to the jury.

[11]

We
    disagree.  The trial judges jury charge was brief  24 pages.  In our view, it
    was an adequate presentation of the evidence and positions of both sides; we
    see no unfairness or imbalance in the trial judges summary of the evidence
    that would warrant reversal given the issues that needed to be determined.

[12]

Fifth,
    the appellants seek to introduce fresh evidence in the form of an affidavit of
    David OBrien, the defendants co-counsel at trial.  Mr. OBrien affirms that,
    just before the second day of the jurys deliberations, and after the
    defendants had made their objections the previous day to the jury charge (the
    trial judge accepted one objection and re-charged accordingly), and after the
    jury had asked a question during their deliberations, which the trial judge
    answered, the trial judge erred by not acceding to the defendants counsels
    request to make further objections to the jury charge.

[13]

The
    appellants did not strongly press their motion to admit fresh evidence. 
    Whatever the merits of the trial judges decision, it had no impact on the
    fairness of the trial or the appellants ability to make submissions on
    appeal.

[14]

We
    observe that we have not taken into account any failure to object in disposing
    of the grounds of appeal.

[15]

The
    appeal is dismissed.  The respondents are entitled to their costs of the appeal
    fixed at $40,000, inclusive of disbursements and HST.

M.
    Rosenberg J.A.

J.C.
    MacPherson J.A.

H.S.
    LaForme J.A.


