




CITATION:
Agius v. Home Depot Holdings Inc., 2011 ONCA
          686



DATE: 20111104



DOCKET: C50120



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O., Sharpe J.A. and Cunningham A.C.J.
(ad hoc)



BETWEEN



Charles and Irene Agius



Plaintiffs (Appellants)



and



Home Depot Holdings Inc.



Defendant (Respondent)



Tim Danson and Marjan Delavar, for the Appellants



S. Wayne Morris and Teri Liu, for the Respondent



Heard and released orally:
September 29,
          2011



On appeal from the judgment of Justice Leonard Ricchetti of
          the Superior Court of Justice sitting with a jury, dated February 6, 2009.



ENDORSEMENT




[1]

We do not agree that the jury charge was deficient.  We note that the experienced
    trial counsel representing the appellant made no objection to the charge during
    the trial.  Further, the trial judge did not misstate the appellants testimony;
    rather the impugned passage merely reflected the respondents position.  The
    omission of the summary of the evidence from the written charge would have been
    apparent to the jury and caused no prejudice.  In addition, we disagree with
    the appellants position that the trial judge misstated the law under the
Occupiers
    Liability Act
,

R.S.O. 1990, c O.2.  The trial judge set out the law
    with respect to an occupiers duty clearly.

[2]

On our reading of the record, the trial judge did not exclude the appellants
    except  on agreement of counsel  until after they were called to testify. 
    There is no error in this respect.

[3]

As for the ground of appeal alleging that the jury address was
    inflammatory, it was not inappropriate for counsel for the defendants to ask
    the jury to conclude, based on the evidence, that one or more of the witnesses
    were liars.

[4]

The appeal is dismissed.

[5]

Costs to the respondent in the agreed upon amount of $30,000 all inclusive.

W.K.Winkler C.J.O.

R. J. Sharpe J.A.

J.D. Cunningham A.C.J.
ad
    hoc



