



COURT OF APPEAL FOR ONTARIO

CITATION: Parent v. Janandee Management Inc., 2017 ONCA 922

DATE: 20171129

DOCKET: C61888

Trotter, Paciocco and Nordheimer JJ.A.

BETWEEN

Dr. Jocelyne Parent and John Hendrix

Plaintiffs (Respondents)

and

Janandee Management Inc., Downtown Building Group
    Inc., Camrost Felcorp, and The Camrost Corporation

Defendants (Appellants)

and

T.S. Contracting Limited operating business as
    Upright Signs

Defendant (Respondent and Appellant by cross-appeal)

Douglas A. Wallace and Tori C. Wallace, for the
    appellants

Brian Brock and Joanna Reznick, for the respondents

James Schacter and Neil Searles, for the
    respondent/appellant by cross-appeal

Heard:  November 16, 2017

On appeal from the judgment of Justice Grant Dow of the Superior
    Court of Justice sitting with a jury, dated November 7, 2016.

REASONS FOR DECISION

[1]

The defendants, Janandee Management Inc., Downtown Building Group Inc.,
    Camrost Felcorp, and The Camrost Corporation (collectively referred to as
    "Janandee"), appeal from the judgment awarding damages to the
    plaintiffs, entered in accordance with the Jury Verdict.  The defendant T.S.
    Contracting Limited operating as Upright Signs ("Upright Signs")
    cross-appeals from a portion of the costs awards made by the trial judge.

A.

Background facts

[2]

Janandee is a condominium developer that advertised in downtown Toronto
    on weekends with portable, A-frame signs on city sidewalks. Upright Signs was
    contracted by Janandee to install signs at designated intersections.

[3]

On March 23, 2002, the respondents, Dr. Jocelyne Parent and her husband,
    John Hendrix, were walking westbound on the sidewalk located on the south side
    of King Street, near Bay Street, in Toronto. The day was windy, and both Dr.
    Parent and Mr. Hendrix were bent over in the wind, holding each other and their
    hats. Suddenly, Dr. Parent was struck in the face by one of Janandees A-frame
    signs.  The sign measured 48 inches by 32 inches, was made of wood and weighed
    between 35 and 40 pounds.

[4]

The evidence was that the sign lifted about six inches off the ground
    and then struck Dr. Parent.  As a result of the incident, Dr. Parent was knocked
    to the ground, hitting her head on the sidewalk. She sustained a broken nose,
    fractured orbit, and traumatic brain injury.

[5]

Following a fifteen-day trial, a jury found all defendants liable, and
    awarded Dr. Parent $2,900,169.60 in damages, plus interest and costs. The jury
    found that Janandee and Upright Signs were both negligent and apportioned
    liability as follows: Janandee 94% and Upright Signs 6%.

[6]

The trial judge subsequently ordered Janandee and Upright Signs to pay
    costs to the respondents in the amount of $727,290.00 and ordered Janandee to
    pay costs to Upright Signs in the amount of $210,000.00.

B.

The appeal

(1)

Duty of care

[7]

Janandee raises a number of issues in its appeal.  First, it contends
    that the trial judge erred in concluding that Janandee owed a duty of care to
    the plaintiffs.  We did not call on the respondents on that issue.  The
    submission that no duty of care was owed is an untenable one.  In our view, a
    party who places, or arranges to have placed, signs on public sidewalks clearly
    owes a duty of care to members of the public to ensure that those signs are
    placed in a manner that will not cause injury to pedestrians or others who
    might reasonably be affected.  There is a sufficiently close relationship
    between the persons placing signs, and the persons using the sidewalks, such
    that it would be within the reasonable contemplation of the former that
    carelessness on their parts might cause damage to the latter.  Further, there
    are no considerations which ought to negative or limit the scope of the duty or
    the persons to whom it is owed:
Anns v. Merton London Borough Council
,
    [1978] A.C. 728 (U.K.H.L).

[8]

That said, we do express some concern with the manner in which this
    issue was addressed in the charge to the jury.  In his charge, the trial judge
    said:

There are three elements that a plaintiff must prove in a
    negligence action and on a balance of probabilities. They are:

1. There was a duty of care owed to the plaintiffs by one or
    both of the defendants.  This is a question of law for me to decide and I will
    instruct you on that in a moment.

2. That there was a breach of that duty of care in that the
    defendants, one or both, failed to exercise the standard of care required of a
    reasonable and careful person in the same circumstances. This is a question of
    fact for you alone to decide.

3. That the plaintiff suffered damages as a direct result of
    the defendants negligence. This is also a question of fact for you alone to
    decide.

[9]

The trial judge then spent the next two pages of his charge explaining
    why he had concluded that a duty of care was owed by the defendants to the
    plaintiffs.  In our view, there was no need for this explanation.

[10]

Providing an explanation as to why a duty of care has been found, runs
    the risk that the explanation may unintentionally influence the jurys
    consideration of the two issues that they have to decide, that is, whether a
    defendant was negligent and the apportionment of fault as between two or more negligent
    defendants.  In other words, the jury may take the trial judges explanation as
    to why a duty of care has been found as indicating, or telegraphing, his/her
    view on the defendants liability. Indeed, in this case several of the comments
    impugned by Janandee are found in comments the trial judge made about whether a
    duty of care applied. While we do not believe these comments misled or
    influenced the jury in this case, it is a risk that ought not to be run.

[11]

What the trial judge ought to have done, after setting out the three
    elements, was simply advise the jury that he had concluded, as a matter of law,
    that a duty of care was owed by the defendants to the plaintiffs and thus the
    jury did not have to concern itself with that issue.  He should have then
    proceeded to the second element, whether there was a breach of the duty,
    without further commentary.  We would note that this appears to be the approach
    suggested in the sample civil jury instructions published by the Continuing
    Legal Education Society of British Columbia (Continuing Legal Education Society
    of British Columbia, February 2017, Civil Jury Instructions, at §5.01.3).

(2)

The apportionment of liability

[12]

The next issue raised by Janandee, and which appears to be the central
    one in this appeal, is whether the trial judge properly instructed the jury on
    the principles of apportionment of liability.

[13]

The difficulty revolves around references to causation, both directly in
    the questions given to the jury, and indirectly in the charge to the jury as it
    related to apportionment.  Janandee submits that the trial judge confused the
    issue of causation, which is relevant to the breach of the duty of care, with
    the issue of fault that is relevant to the apportionment exercise.  Janandee says
    that this error may explain why the jury arrived at the somewhat unusual split
    of 94/6.  Janandee says that this error is sufficiently serious that this court
    should intervene by setting aside the jurys verdict and reapportioning the
    liability 75% to Upright Signs and 25% to Janandee.

[14]

Janandee correctly points out that the
Negligence Act
, R.S.O.
    1990, c. N.1 provides, in s. 1, that where damages are caused or contributed by
    two or more persons the court shall determine the degree in which each of such
    persons is at fault or negligent.  Fault is different than causation.  In
    commenting on s. 1 of the
Negligence Act
in
Rizzi v. Mavros
,
    2008 ONCA 172, Lang J.A. said, at para. 48:

A plain reading of this provision requires apportionment based
    on the "fault or negligence" of each party, rather than on the basis
    of causation. It would be in error to apportion liability on the degree to
    which the appellant or the respondents caused the damages.

[15]

The notion of fault involves a consideration of the blameworthiness of
    the actions of each of the defendants who have contributed to the damages
    suffered.  As Professor Klar says in his text (L. N. Klar,
Tort Law
, 5th
    ed, (Toronto: Carswell, 2012)), at p. 582:

[A]ssessing degrees of fault or the extent of a persons
    responsibility must relate to the relative culpability or blameworthiness of
    the parties. The apportionment decision depends upon which of the defendants
    failed most markedly to live up to the standards of conduct expected.

[16]

We agree with Janandee that there are aspects of the jury charge that
    could have been clearer regarding the basis upon which liability was to be
    apportioned, but we do not agree that these issues would have confused the jury
    with respect to the appropriate analysis.

[17]

The questions put to the jury for their answers on liability were in the
    following order:  questions #1 and 3 dealt with the issue of breach of the duty
    of care for each of the defendants, questions #2 and #4 were the questions on
    particulars of the negligence for each of the defendants, question #5 dealt
    with apportionment; question #6 dealt with damages, and question #7 dealt with
Family
    Law Act
,
R.S.O. 1990, c. F.3 damages.  The questions asked of the
    jury in relation to the breach by each of the defendants were in the same
    essential terms.  In respect of Janandee, the question was:

Was there any negligence on the part of the Defendants Janandee
    Management Inc., Downtown Building Group Inc., Camrost Felcorp, or The Camrost
    Corporation (the Janandee Group of Defendants) which caused or contributed to
    the injuries of the Plaintiff, Jocelyne Parent as a result of the sign incident
    of March 23, 2002?

[18]

This question, which tracks the language set out in s. 1 of the
Negligence
    Act
, deals with the issue of whether there had been a breach of the duty
    of care, and properly asks for an answer to that question based on causation.  
    The reference to caused or contributed is proper because it focusses the negligence
    inquiry on the act or omission that caused the injury.

[19]

The potential difficulty arises when one gets to question #5, the
    apportionment question.  It refers back to the negligence questions (i.e.,
    questions #1 and #3) and then simply asks for the percentage split. 
    Specifically, question #5 was:

Only if the answers to questions 1 and 3 are both yes, how do
    you apportion the respective degrees of fault?

Two blanks were left beside the two defendants for a
    percentage to be inserted, with the total already marked as having to add to
    100%.

[20]

In his charge to the jury, the trial judge said:

If your answer to Questions 1 and 3 is yes, then you must
    answer Question 5 which requires you to apportion the respective degree of
    fault. You will note the question is already filled in in the total of 100. The
    apportionment must total 100 percent. There can be any two numbers that total
    100. For example, the apportionment can be that 75/25 in either party's favour;
    68/32; 50/50; 100/0.

[21]

The trial judge made another reference to degrees of fault in the next
    paragraph of his charge.

[22]

Unfortunately, the trial judge did not draw the jurys attention (at any
    point in his charge) to the fact that determining the degrees of fault is a different
    exercise than determining causation.  It would have been better if the trial
    judge had explained to the jury that, when they came to the apportionment
    question, they must consider fault, in the sense of blameworthiness, and not
    causation.  It might also have been helpful at that point to draw to the jurys
    attention the evidence that related to that determination.

[23]

Janandee says that the above problem with the jury charge was magnified
    by the events surrounding the subsequent question asked by the jury.  During
    their deliberations, the jury sent the judge a question.  It read:

For Question 5 if we found Question 1 and 3 to be yes, can we
    still have a diversity split of 100 percent versus zero percent?

[24]

In responding to the jurys question, the trial judge said:

I did state as an example of apportionment 100/0 and that was
    in error. If you find a specific negligent act or failure to act on the part of
    the defendant that caused or contributed to the incident of March 23 2002 it
    must attract a percentage of liability even if only one percent or even less.

Janandee says that the language of caused or
    contributed exemplifies the trial judges failure to instruct the jury on the
    proper basis for making the apportionment.

[25]

We accept that the language used by the trial judge was not the best.
    Still, in our view, the answer to the jurys question did not invite the jury
    to apportion based on degrees of causation. The jury was directed to consider
    specific negligence on the part of the defendants. The reference to it refers
    to the subject of the sentence, the specific negligent act. Again, the
    reference to negligence that caused or contributed to the incident is
    included to identify the negligence that the jury should consider in making
    their apportionment.

[26]

Any room for confusion caused by including causation references in the
    apportionment discussion is not of such a magnitude as to warrant our
    intervention in the result. We say that for a number of reasons:


(i)

As pointed out above, the issue of fault was mentioned more than once by
    the trial judge when it came to the apportionment portion of his charge.  It is
    also expressly mentioned in the apportionment question itself.


(ii)

The answer to the jurys question was canvassed by the trial judge with
    all counsel and no one objected to the proposed answer on the grounds now
    raised by Janandee.


(iii)

No counsel raised any objection to the contents of the trial judges
    original charge on this issue.  The failure of counsel to object (experienced
    trial counsel in this case) is properly taken into account in determining
    whether there was any "material misdirection or non-direction" by the
    trial judge that warrants appellate intervention:
Marcoccia (Litigation
    guardian of) v. Ford Credit Canada Ltd.,
2009 ONCA 317, 248 O.A.C. 131, at
    para. 26.


(iv)

The jurys question shows that the jury knew it was apportioning based
    on its answers to question 1 and 3, relating to the specifics of negligence,
    and not on a causation basis.


(v)

A high degree of deference is given by courts to jury verdicts.  A civil
    jury's verdict should be set aside only where it is so plainly unreasonable and
    unjust that no jury reviewing the evidence as a whole and acting judicially
    could have arrived at the verdict:
Stilwell v. World Kitchen Inc.
, 2014
    ONCA 770, 327 O.A.C. 146, at para. 33.

The mere fact that the apportionment made by the jury
    might be seen as an unusual one is not, without more, a sufficient basis to
    justify interfering with it.

(3)

Foreseeability

[27]

The final issue raised by Janandee is that the trial judge erroneously
    instructed the jury on the issue of foreseeability.  Janandee says that this
    error manifested itself in the trial judge referring to the position of the
    appellant as the incident amounting to an Act of God.

[28]

The trial judge provided counsel with his charge in advance.  Time was
    spent reviewing the draft charge with counsel and obtaining their input.  Counsel
    for Janandee did raise an issue with the trial judges instructions on
    foreseeability but not on the point that Janandee now raises.  In particular, Janandees
    trial counsel objected to the trial judges reference to foreseeability of the
    possibility of harm.  As a result of those objections, the trial judge
    amended his instructions to refer to the probable likelihood of harm.

[29]

Nevertheless, characterizing Janandees position as amounting to an Act
    of God defence probably ought not to have been said.  However, again, counsel
    did not object at the time.  In any event, the particulars of the negligence
    provided by the jury, fairly read in relation to Janandee, do not support any
    conclusion that this reference materially impacted on the jurys conclusions.

[30]

The appeal is dismissed.



C.

The cross-appeal

[31]

We did not call on the appellant to respond to the cross-appeal
    regarding the trial judges costs awards.  Because of an offer to settle made by
    the plaintiffs, and an offer to contribute that had been made by Upright Signs,
    the trial judge was required to consider different costs issues, including the
    proper scale of costs payable to the plaintiffs, the degree of contribution
    among the defendants to those costs, and the liability of Janandee to Upright Signs
    for its costs subsequent to its offer to contribute.  The trial judge resolved
    all of those issues in the subsequent reasons that he gave.

[32]

While we accept that there may be a measure of inconsistency between the
    specific individual awards that the trial judge decided on, they are all
    matters within the discretion of the trial judge.  The suggested errors do not
    rise to the level of seriousness that is required to satisfy the rare instance
    where leave to appeal a costs award will be granted:
Inter-trust Mortgage
    Investment Corp. v. 1071005 Ontario Ltd
.,
[1999] O.J. No. 1875
    (C.A.) at para. 12.  Further, viewed in the context of the overall costs awards,
    and the ultimate apportionment of liability by the jury, the costs awarded
    against Upright Signs was fair.

[33]

Leave to cross-appeal the award of costs at trial is denied.

D.

Costs

[34]

Janandee will pay to Upright Signs the costs of the appeal in the agreed
    amount of $15,000 (inclusive of disbursements) plus HST.  Upright Signs will
    pay to the appellants the costs of the cross-appeal in the agreed amount of $3,500
    (inclusive of disbursements) plus HST.  Janandee will pay to the respondents
    the costs of the appeal which we fix in the amount of $25,000 inclusive of
    disbursements and HST.

G.T. Trotter J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


