



COURT OF APPEAL FOR ONTARIO

CITATION: Sant v. Sekhon, 2014 ONCA 623

DATE: 20140908

DOCKET: C57233

Weiler, Laskin and van Rensburg JJ.A.

BETWEEN

Evan
    Matthew Sant, a Person Under Disability, by his Litigation Guardian,

Elisabeth
    Sant, Elisabeth Sant, personally,

Christopher Sant and
    Andrew Sant

Plaintiffs (Respondents)

and

Jharmal Singh Sekhon, Capital Transport Corporation,

Canada
    Drayage Inc.
, Joel Sant and
Oakwood Services Ltd
.

Defendants (Appellants)

Hillel David, Jim Tomlinson and Adrian Nicolini, for the
    appellants

Earl A. Cherniak, Q.C. and Jasmine Akbarali, for the
    respondent

Heard and released orally: September 2, 2014

On appeal from the judgment of Justice Leonard Ricchetti
    of the Superior Court of Justice, dated May 23, 2013.

ENDORSEMENT


[1]

The respondent, Evan Sant, was a passenger in a pickup truck driven by
    Joel Sant that entered an intersection on a red light and was hit by a
    freightliner driven by Mr. Sekhon going through the intersection on the green
    light. In a negligence action brought by Evan Sant for the injuries he
    sustained, the jury found Joel Sant 95% liable for the accident and Mr. Sekhon
    5% liable.

[2]

Mr. Sekhon and the owners of the transport truck he was driving, Capital
    Transport Corporation and Canada Drayage Inc., appeal.

[3]

The grounds of appeal and our disposition of them are as follows.

(1)

Was the jurys verdict regarding Sekhon so plainly unreasonable and
    unjust as to satisfy the court that no jury reviewing the evidence as a whole
    and acting judicially could have reached it?

[4]

The jurisprudence on the standard of care of a driver with a green light
    is not in dispute. A driver with a green light is free to go through the
    intersection assuming that drivers approaching the intersection from other
    directions and who necessarily are being shown a red light will stop. However,
    a statutory right of way does not absolve a driver from exercising proper care.
    A driver should not exercise his or her right of way 1) if the driver becomes
    aware or should become aware that the driver without the right of way is going
    to go through the intersection and 2) if the circumstances are such that the
    driver with the right of way had the opportunity to avoid the collision:
Behmanesh
    v. Yokhana,
2011 ONSC 4950, at para. 15;
Goodwin v. Wrycraft
,
    [1966] 1 O.R. 26 (C.A.), at para. 16,
Vertulia v. Kratz
,

[1956]
    O.R. 884, at para.18.

[5]

The appellant submits that nothing in the circumstances alerted or
    should have alerted him to the fact that the driver of the pickup was going to
    go through the red light. We disagree. There was evidence, such as the evidence
    of the independent witness Mr. Miller and from the respondents expert Mr. Raftery,
    from which the jury could infer that a reasonably prudent driver should have
    been aware of the hazard posed by the pickup. Similarly, it was open to the
    jury to accept Mr. Rafterys evidence with respect to causation. This ground of
    appeal is dismissed.

(2)

Did the trial judge misdirect the jury on the element of causation and
    did the jury fail to make a cogent finding on the critical issue of causation?

[6]

The appellant submits that the following portion of the trial judges
    charge to the jury was in error in that he effectively instructed the jury to
    ignore the element of causation:

It is not necessary for you to find that the driver with the
    green light could have or should have become aware the driver of the other
    vehicle was going to go through the red light any earlier than he actually
    became aware of it.

[7]

In this portion of his charge the trial judge was instructing the jury
    with respect to question #5, the question dealing with standard of care.
    Counsel for the appellants did not object to this portion of the charge at
    trial. When the charge is read in context and as a whole, the trial judge did
    not misdirect the jury on the issue of causation.

[8]

There is also no merit to the appellants argument that the jury of
    necessity would have been misled by this passage because of the form of their
    answer to question # 5. The fact that the jury provided more extensive detail
    regarding Joel Sants negligence as opposed Mr. Sekhons does not necessarily
    mean that an inference can be drawn that the jury was confused. In the context
    of the question put to the jury and the trial judges charge, the jurys answer
    was entirely appropriate.

(3)

Was there improper and inflammatory cross-examination of Sekhon which
    may have influenced the jury to decide as it did?

[9]

During cross-examination of Mr. Sekhon, counsel for Joel Sant repeatedly
    asked Mr. Sekhon whether his lawyers had instructed him to provide particular
    answers during his testimony. This line of questioning was improper since its
    only purpose was to suggest to the jury that Mr. Sekhons evidence had been
    fabricated. There was no basis for that suggestion.

[10]

In
    order for appellate intervention to be justified, however, the improper conduct
    must be sufficiently serious to undermine the fairness of the trial or put the
    validity of the verdicts into real doubt:
Abdallah v. Snopek
(2008),
    89 O.R. (3d) 771 (C.A.), at para. 39 quoting
Rogacki v. Belz
(2004),
    243 D.L.R. (4
th
) 585 (Ont. C.A.), at para 22 leave to appeal denied
    (2005), 339 N.R. 197 (S.C.C.). The cross-examination questions the appellants
    object to do not meet this standard.

[11]

Accordingly,
    the appeal is dismissed.

Costs

[12]

The
    costs of the appeal are to the respondents and are fixed in the amount of
    $30,000 inclusive of disbursements and all applicable taxes.

K.M.
    Weiler J.A.

John
    Laskin J.A.

K.
    van Rensburg J.A.


