



COURT OF APPEAL FOR ONTARIO

CITATION: Hamilton v. Bluewater Recycling Association, 2016
    ONCA 805

DATE: 20161103

DOCKET: C60368

Hoy A.C.J.O., Benotto
    and Huscroft JJ.A.

BETWEEN

Matthew Hamilton and
    Sophie Marion

Plaintiffs (Appellants)

and

Bluewater Recycling
    Association and John Keith Bonnett

Defendants (Respondents)

John J. Adair, Joseph Sidiropoulos, and Jeffrey Hernaez
    for the appellants

Paul Tushinski, Stephen A. Mullings, and Jennifer
    Arduini for the respondents

Heard: October 6, 2016

On appeal from the judgment of
    Justice James W.  Sloan of the Superior Court, sitting with a jury, dated
    August 13, 2015.

By the Court:

[1]

At the conclusion of a 13-day trial, a jury found the
    plaintiff/appellant Matthew Hamilton 100% responsible for the injuries he
    sustained when the motorcycle he was driving collided with the respondents recycling
    truck driven by the defendant/respondent John Bonnett. The trial judge granted
    judgment in accordance with the jurys verdict. Mr. Hamilton and his spouse
    appeal that judgment.

[2]

For the reasons that follow, the appeal is dismissed.

The accident

[3]

The accident occurred early in the morning of August 11, 2010 in southwestern
    Ontario where Road 130 and Line 39 intersect. Bonnett in his recycling truck and
    Hamilton on his motorcycle were travelling eastbound on Line 39. Gary Roth, an
    independent witness
at the trial
, was
    driving a van and was stopped on Road 130, facing south. The sun was rising and
    there was fog in the area. Hamilton, Bonnett and Roth provided differing
    evidence as to the extent of the fog.

[4]

Hamilton said there was some fog
    in the fields, thats like every day in the summer there; Bonnett described
    the conditions as thick, soupy fog; Roth described patchy fog. The police
    officers who were first responders, PC Rowbotham and Sinko, reported fog in the
    area. Rowbotham described the area as foggy in patches, and reported fog at
    the location of the accident. Sinko testified that there were areas of thicker
    fog and  areas where it was foggy but yet you could see. The investigating
    officer, PC McComb, described foggy conditions as he drove to the accident
    scene.

[5]

Evidence as to visibility at the
    time of the accident also varied. At discovery Bonnett said that at the time of
    the incident he could see a little better than from telephone poll to
    telephone pole ahead, but he testified that all he saw in his mirror was fog.
    Roth testified that visibility at the intersection was good and that he could
    see 500 feet or more up Line 39.

[6]

Bonnett testified that the caution
    lights on the top of the truck were on, as were the headlights and a strobe
    light on the top left side of the truck. The truck was equipped with steering
    wheels on both the left and right hand sides, and Bonnett was driving the truck
    from the right hand side. He testified that he braked as he approached the
    intersection and was travelling at a relatively low rate of speed. His left-turn
    signal was on.

[7]

Bonnett testified, further, that
    he observed Roths van stopped on Road 130, facing southbound. As he entered
    the intersection he steered his truck to the right to some extent in order to
    go around the van, which had pulled forward slightly into the intersection in
    order to obtain a better view of oncoming traffic.

[8]

Hamilton testified that he thought
    Bonnetts truck was pulling over, although he wasnt sure if it was to stop or
    to yield the road to him. He testified that the truck did not have its
    left-turn signal on. Bonnett testified that his left-turn signal was on.
    Hamilton did not contest the matter on appeal.

[9]

Hamilton pulled out to pass Bonnetts truck. He testified that he was driving
    below the speed limit prior to attempting to pass the truck. He did not sound
    his horn before executing his passing manoeuvre.

[10]

Bonnett testified that he had
    checked his mirrors regularly and never saw Hamilton approaching from behind or
    attempting to pass. He said that all he saw behind him was fog. The truck was
    equipped with a camera showing the left side of the truck, as well as a sonar
    device that sounds an alarm when it detects something on the left side of the
    truck. Bonnett testified that the alarm did not sound prior to him making the
    left turn.

[11]

Hamilton testified that as the
    truck turned left in front of him he slammed on his brakes. He realized he
    could not stop in time and he put the motorcycle between him and the truck and
    slid into it.

[12]

Tragically, Hamilton was rendered paraplegic
    as a result of the accident. The parties agreed his damages were $8,000,000.

The jurys verdict

[13]

The jury found Hamilton 100%
    responsible for the accident and provided two reasons:


·

A reasonably prudent motorist
  would not have made the decision to overtake the recycling truck.


·

A reasonably prudent motorist
  should have had enough control to navigate an unexpected situation and come to
  a complete stop if necessary in this scenario.

Issues on appeal
[14]

The appellants argue that the
    jurys verdict was unreasonable because there was incontrovertible evidence of
    Bonnetts negligence. They say that the jury should not have found Hamilton 100%
    responsible. They contend that the evidence established that Bonnett was
    negligent in three ways:

1.

He breached s. 142(1) of the
Highway
  Traffic Act
, R.S.O. 1990, c. H.8,
by failing to see whether his left turn could be made
  safely;


2.

He breached s. 141(6) of the
Highway
  Traffic Act
by failing to initiate his turn
  from a position immediately to the right of the centre-line of the road; and


3.

He operated the truck from the right side position, in
  violation of the trucks safety manual (because he was not engaged in
  house-to-house pickups), and on the morning of the accident had driven the
  truck at a faster speed than the manual and the American National Safety
  Institute standards allowed.

Analysis
[15]

The appellants face a high threshold in attempting to overturn the
    jurys verdict on the basis that it is unreasonable. The test is not whether a
    different conclusion could reasonably have been reached on the facts of this
    case. It is whether the conclusion reached by the jury is so plainly
    unreasonable and unjust that no jury, reviewing the evidence as a whole and
    acting judicially, could have reached it:
Housen v. Nikolaisen
,
2002 SCC 33,
[2002] 2 S.C.R. 235, at para. 30.
    Recent decisions of this court applying this standard include
Boucher v.
    Wal-Mart Canada Corp.
, 2014 ONCA 419, 120 O.R. (3d) 481, at para. 49 and
Goodwin
    v. Olupona
, 2013 ONCA 259, 305 O.A.C. 245, at para. 23.
[16]

The appellants do not take issue with
    the trial judges instructions to the jury. We are satisfied that he fully and
    fairly explained the relevant requirements of the
Highway Traffic
    Act
.
He also adverted to the great deal of evidence with respect to
    right-hand vehicles as well as Bonnetts evidence that, with the aid of his
    mirrors and camera, he could see behind his truck as clearly from the
    right-hand steering wheel as he could from the left.
[17]

The trial judge instructed the
    jury that there was a heavy onus on Bonnett when making a left turn to ensure
    that his turn could be made safely, and that there was likewise a heavy onus on
    Hamilton when overtaking and passing Bonnett to ensure that he could pass in
    safety.
He instructed the jury that if
    they were satisfied that Bonnett was negligent and that his negligence was a
    proximate cause of the accident, they could find for Hamilton. On the facts of
    the case, it was open to the jury to find either that Bonnett was not negligent
    or that his negligence was not a proximate cause of the accident.
[18]

The jurys answers indicate that they considered that
Hamilton
was the author of his own misfortune
    in making the decision to pass in all of the circumstances. This finding was
    open to the jury. Hamilton attempted to pass Bonnetts truck when it was in the
    midst of making a left turn. It may be that another jury would have reached a
    different decision on the facts of this unfortunate case and might have
    attributed some liability to Bonnett. However, it cannot be said that no jury,
    reviewing the evidence as a whole and acting judicially, could have reached the
    decision that this jury did.
Other
    grounds of appeal
[19]

The appellants submit that opinion
    evidence was improperly adduced by defence counsel during cross-examination of
    the appellants two expert witnesses, Travis Fricker, an accident
    reconstruction expert, and Dr. Christina Rudin-Brown, a human factors expert.
    The appellants say that these witnesses answered questions concerning their
    opinion as to the cause of the accident that were unrelated to their expertise
    and went directly to the ultimate issue for the jury. The appellants submit
    that there is a risk that the jury was overwhelmed by inadmissible opinion
    evidence.
[20]

We disagree.
[21]

First, there is no longer a
    general prohibition on the admission of expert evidence concerning the ultimate
    issue: see
R. v. Mohan
,
    [1994] 2 S.C.R. 9, at p. 24;
R. v. Lucas
, 2014 ONCA 561, 121 O.R. (3d) 303, leave to appeal
    refused, [2014] S.C.C.A. No. 460, at para. 271;
Hoang v. Vicentini
, 2016 ONCA 723, at para. 62.
[22]

The appellants point to Frickers concessions on cross-examination that
    in an ideal world Hamilton would have waited, and that it would be more
    prudent to stop for any potential thing that could happen. But Fricker made
    clear that he was not in a position to judge what the average driver would do.
    Frickers evidence was tentative at best, and cannot be said to
have been
outside his expertise.
[23]

Dr. Rudin-Brown assessed human
    factors, including the conspicuity of the left turn signal on the recycling
    truck and motorcyclist inexperience.  She opined  based on the facts of the
    case and on her knowledge of human factors issues and road safety  that
    Hamilton reacted to the unfolding situation in a manner that was appropriate
    for the conditions that were present at the time and that his behaviour was
    entirely reasonable.
[24]

Dr. Rudin-Brown had testified that
    the other flashing lights on the recycling truck might reasonably have
    contributed to any misinterpretation by Hamilton of the left turn signal.  In
    cross-examination, defence counsel probed the assumptions underlying Dr.
    Rudin-Browns opinion that Hamilton reacted in a manner that was appropriate,
    leading to one of the answers with which the appellant takes issue:
Q. What if there was a left turn signal, because you know its
    a very significant issue in this case. If the left turn signal was activated
    and [Hamilton] made that move within a few car lengths of the intersection with
    the [Roth van] to the left, basically at the edge of the asphalt and a very
    large recycling truck with a left turn signal, you would agree that that would
    have been completely inappropriate behaviour?
A. It was appropriate.
Q: It was?
A: It was appropriate to Mr.
    Hamilton.
Q. Even with a left-turn signal?
A: If he saw the left turn signal and understood what it
    indicated, yes, that would be.
[25]

Although the answer to the last
    question is ambiguous, this line of questions follows on from Dr. Rudin-Browns
    opinion and cannot be said to be unrelated to her expertise.
[26]

The appellants also complain about
    an exchange in which Dr. Rudin-Brown appears to agree with defence counsels
    suggestion that Hamiltons actions were those of an inexperienced motorcycle
    driver. (Although Hamilton was an experienced car driver, he had only been
    riding a motorcycle for a few weeks at the time of the accident.)  Dr.
    Rudin-Brown assessed Hamiltons motorcycle experience in arriving at her
    opinion. Her answer that his actions could be interpreted that way cannot be
    said to have been outside her expertise and, in any event, was ambiguous.
[27]

Finally, the appellants challenge Dr.
    Rudin-Browns agreement with defence counsels suggestion that it would be
    prudent for a driver to keep even farther back than usual from a very large
    truck with many lights.
[28]

This appears to be a common sense
    proposition that does not necessarily require expert evidence. However, no
    objection was taken to this line of questioning at trial.
[29]

The failure to object to the
    admission of evidence at trial is not determinative on appeal. But even
    assuming that this evidence was wrongly admitted, it cannot be said
that
    its admission occasioned a substantial wrong or a miscarriage of justice:
see
Gabriella Kadar v. Deszo Kadar

(1999), 122
    O.A.C. 36, at para. 17.
[30]

Finally, the appellants say that the second answer submitted by the jury
     that [a] reasonably prudent motorist should have had enough control to
    navigate an unexpected situation and come to a complete stop if necessary in
    this scenario  demonstrates fundamental error, because Hamiltons conduct
    after he pulled out to pass was not part of the respondents case. In other
    words, the jury found an act of negligence that was not argued at trial.
[31]

This submission does not persuade us that the jurys conclusion was so
    plainly unreasonable and unjust that no jury, reviewing the evidence as a whole
    and acting judicially, could have reached it. The jurys first answer  that a
    reasonably prudent person would not have made the decision to overtake the
    recycling truck  was directly responsive to what the appellants characterize
    as the heart of the defence theory at trial. It demonstrates that the jury understood
    its task. The jurys additional answer does not undermine its conclusion that
    the respondent bore no liability for the accident.
Disposition
[32]

The appeal is dismissed.
[33]

The respondents are entitled to
    costs of $25,000, as agreed by the parties, inclusive of taxes and
    disbursements.
Released: November 3, 2016   AH
Alexandra
    Hoy A.C.J.O.
M.L.
    Benotto J.A.
Grant
    Huscroft J.A.