



COURT OF APPEAL FOR ONTARIO

CITATION:
El
    Dali v. Panjalingam, 2013 ONCA 24

DATE: 20130118

DOCKET: C53417

Laskin, MacPherson and Gillese JJ.A.

BETWEEN

Walid El Dali
and
    Rajaa El Dali

Plaintiffs (
Appellant
)

and

Sothinathan Panjalingam and Pauchanathan
    Panjalingam

Defendants (Respondents)

Joseph Obagi and Elizabeth A. Quigley, for the appellant

Peter Cronyn and Patricia Lawson, for the respondents

Heard: November 28, 2012

On appeal from the judgment of Justice Hugh R. McLean of
    the Superior Court of Justice, dated February 11, 2011.

Laskin
    J.A.:

A.

OVERVIEW

[1]

On December 11, 2005, the appellant Walid El Dali was injured in a car
    accident.  The accident occurred on an icy, slippery road in Ottawa.  The
    respondent driver Pauchanathan Panjalingam lost control of his car, crossed the
    centre line of the road, and collided with El Dalis car.

[2]

El Dali sued Panjalingam for damages for negligence and the case was
    tried before McLean J. and a jury.

[3]

Although available to do so, Panjalingam did not testify to explain his
    driving.  Nonetheless, in answer to the question whether Panjalingams
    negligence caused or contributed to the accident, the jury responded no.  El
    Dalis action was therefore dismissed.  The jury did assess El Dalis damages:
    $35,000 for general damages, $55,000 for past loss of income, but zero damages
    for future loss of income.

[4]

El Dali appealed both liability and damages.  He argued four grounds of
    appeal:

(1)

The jurys verdict on liability was unreasonable and unsupported by the
    evidence.

(2)

The trial judge failed to instruct the jury properly on negligence and
    contributory negligence.

(3)

Defence counsels jury address, both on liability and damages, was
    misleading and inflammatory.  And the trial judge erred by failing to correct
    defence counsels misstatements.

(4)

The trial judge erred by failing to grant the appellants mistrial
    motion brought because the defence withheld certain documents relevant to El
    Dalis loss of future income claim.

[5]

We called on the respondents only on grounds 1 and 2.  In our view,
    defence counsels closing was neither misleading nor inflammatory.  It was
    simply forceful advocacy.  Further, the trial judge did not err in exercising
    his discretion not to declare a mistrial.  Overall, we are satisfied that the
    jurys damages award was reasonably supported by the evidence.

[6]

However, I would set aside the jurys verdict on liability and order a
    new trial on that issue.  In the absence of any explanation for Panjalingams
    driving or any evidence that he exercised reasonable care, the jurys verdict
    was unreasonable.

B.

Facts

(1)

The Accident

[7]

The accident occurred on Prince of Wales Drive in Ottawa.  Weather
    conditions the day of the accident were poor.  The road was icy and slippery.

[8]

El Dali and Panjalingam were travelling in opposite directions towards
    one another.  El Dali was driving at about 10-20 kilometres per hour.  From about
    300 to 500 feet away, El Deli saw Panjalingam lose control of his car and cross
    the centre line of the road.  El Dali pulled over to the right side of the road
    and stopped  seemingly a prudent thing to do.  Still, Panjalingams car struck
    El Dalis car.  El Dali sustained injuries to his shoulders and knees.

[9]

A police officer was called to the scene of the accident.  She spoke to
    both drivers.  At trial, she testified that Panjalingam admitted losing control
    of his car.  She also testified that he was not impaired.  She decided not to
    lay charges under the
Highway Traffic Act
, R.S.O. 1990, c. H.8, due
    to poor road conditions.

(2)

The Trial

[10]

The
    trial took four weeks.  Panjalingam did not testify and the defence called no
    other evidence to explain his driving.

[11]

In
    closing submissions, counsel for El Dali argued that Panjalingam was 100 per
    cent at fault for the accident.  In her closing submissions, Panjalingams
    counsel implicitly acknowledged that her clients negligence at least
    contributed to the accident:

When you are given the questions by His Honour to answer  and
    there will be 10 questions  we ask that you say the following: Responsibility
    for this action is shared between the plaintiff and the defendant.

The defendant did lose control of his vehicle on an icy road so
    he may be partially responsible, but Mr. El Dali was not travelling fast, he
    saw the object or vehicle from 300 to 500 feet away and took no steps to avoid
    the collision[Mr. El Dali] is at least 50% responsible for this accident.

[12]

Instead
    of arguing that Panjalingam was not negligent, she emphasized that El Dali
    could have taken steps to avoid the accident, and urged the jury to find her
    client only 50 per cent at fault.

[13]

The
    first question the jury was asked to decide was the following:

Was there any negligence on the part of the defendant,
    Pauchanathan Panjalingam, which caused or contributed to the motor vehicle accident
    on December 11, 2005?

[14]

The
    jury answered No.

C.

analysis

(3)

The Applicable Standard of Review

[15]

The
    standard of appellate review of a civil jury verdict is well established.   Where
    the trial judges charge is fair and accurate, the jurys verdict will be set
    aside only where it is 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:
McCannell v. McLean
, [1937] S.C.R. 341, at p. 343.

[16]

Although
    the standard requires appellate courts to treat jury verdicts deferentially, it
    does not require that they treat them with awe:
Olmstead v. Vancouver-Fraser
    Park District
, [1975] 2 S.C.R. 831, at p. 839.  Juries are not infallible.
     Occasionally they make mistakes.  When they do, an appellate court should
    intervene.  This is one of those cases where appellate intervention is called
    for.

(4)

The Jurys Verdict on Liability Was Unreasonable

[17]

By
    crossing the centre line of the road, Panjalingam breached s. 148(1) of the
Highway
    Traffic Act
, which provides:

Every person in charge of a vehicle on a highway
    meeting another vehicle shall turn out to the right from the centre of the
    roadway, allowing the other vehicle one-half of the roadway free.

[18]

When
    a driver breaches s. 148(1) and an accident occurs, the driver is held to be
prima
    facie
negligent.  The driver then bears the onus of explaining that the
    accident could not have been avoided by the exercise of reasonable care.  Charron
    J.A. set out this proposition in
Levesque v. Levesque
(2001), 151
    O.A.C. 227, at para. 6:

It is my view that the overwhelming weight of the evidence
    established that the respondent, at the time of the collision, did not leave
    one-half of the road clear for the appellants vehicle, as he was required to
    do pursuant to the Highway Traffic Act, R.S.O. 1990, c. H-8, ss. 148 and 149.
    Hence, on this circumstance alone, a prima facie case of negligence was made
    out, and it became incumbent upon the respondent to explain that the accident
    could not have been avoided by the exercise of reasonable care. [Citations
    omitted.]

[19]

The
    explanation need not come from the defendant driver, but it must come from
    someone.  Otherwise, the defendant will be found negligent and at least partly
    responsible for the accident.

[20]

Further,
    as Cory J.A. explained in
Graham v. Hodgkinson
(1983), 40 O.R. (2d)
    697 (C.A.), at p. 703, where the situation (such as driving on the wrong side
    of the road) necessarily calls for an explanation by a party and that partys
    explanation fails to demonstrate that he was not acting in a negligent manner,
    a jurys verdict that the party was not negligent may be set aside as
    unreasonable.

[21]

That
    is precisely this case.

[22]

We
    have no explanation for Panjalingams driving.  We have no evidence about why
    he crossed the centre line and struck El Delis car when it was parked on the
    side of the road; no evidence about Panjalingams driving before he lost
    control of his car; no evidence about what caused him to lose control of his
    car; no evidence about what rate of speed he was driving; and no evidence about
    whether he took any steps to avoid the accident, and if so what they were.
    Absent any explanation, the jurys verdict that no negligence on the part of
    Panjalingam contributed to or caused the accident was unreasonable. That it was
    unreasonable is supported by defence counsels closing submission in which she
    asked the jury to find Panjalingam only 50 per cent at fault. Although not
    binding on the jury, defence counsels assessment of the record strongly
    suggests that the jurys verdict was unreasonable.

[23]

I
    expect the jury may have concluded that the accident was unavoidable and not
    due to Panjalingams negligence, perhaps relying on the police officers
    evidence and the condition of the road. If so, the jurys conclusion is
    unsupportable and amounts to nothing more than speculation.

[24]

The
    officer did not witness the accident.  Moreover, she was investigating whether
    a
Highway Traffic Act
charge should be laid, not whether Panjalingam
    was negligent.  That she exercised her discretion not to lay a charge has no
    bearing on whether Panjalingam drove his car with reasonable care.  And
    whatever statement she took from Panjalingam about his driving was not tendered
    in evidence.

[25]

The
    poor driving conditions do not support the jurys verdict.  The mere slippery
    or icy condition of a road does not permit a trier of fact to infer that an
    accident was unavoidable and not caused by a drivers negligence.  Rutherford
    J. made this point in
Rydzik v. Edwards
(1982), 38 O.R. (2d) 486
    (H.C.J.), at p. 489, relying on the Supreme Court of Canadas judgment in
Gauthier
    & Co. v. The King
, [1945] S.C.R. 143:

It was said in Gauthier by Kellock J. at pp. 55-58 D.L.R.:

Skidding of a vehicle on the highway by itself is a neutral
    fact, equally consistent with negligence or no negligence.

When the onus of explanation lies on the defendants by the
    application of the breach of a statutory duty, an explanation that the accident
    occurred from skidding upon an icy roadway is not a sufficient explanation
    because of this neutrality, or in the context of the Gauthier case, at p. 56
    D.L.R.:

Accordingly, for the respondent [The King] in the
    circumstances of this case to go no farther than to show that the accident was
    occasioned by the skidding of the [vehicle], was not to show a way in which
    the accident may have occurred without negligence

[26]

In
    the case before us, that El Dali was able to control his own car is some evidence
    that the road conditions alone did not disprove negligence on Panjalingams
    part or point to unavoidable accident.

[27]

Before
    concluding, I will briefly address the Supreme Court of Canadas decision in
Fontaine
    v. British Columbia,
[1998] 1 S.C.R. 424, which the respondents relied on
    heavily.  They submit that
Fontaine
precludes this court from finding
    a
prima facie
case of negligence where a car has crossed the centre
    line of a road.  I disagree.

[28]

Fontaine
marked the end of
res ipsa loquitur
in Canadian law.  The maxim r
es
    ipsa loquitur
 the thing speaks for itself  in some circumstances
    permitted a court to infer that a defendants negligence caused an accident in
    the absence of an explanation from that defendant.  Even where the plaintiff
    had no direct or positive evidence to prove the defendants negligent, the
    plaintiff could lead circumstantial evidence to raise a
prima facie
case for the defendant to answer.

[29]

In
Fontaine
, Major J. wrote at para. 27, [t]hat the law would be better
    served if the maxim was treated as expired...  Instead, the trier of fact
    should simply weigh the direct and circumstantial evidence to determine whether
    the plaintiff has established, on a balance of probability, a
prima facie
case of negligence against the defendant.  If the plaintiff has done so, then
    the defendant must lead evidence to negate the evidence of the plaintiff.  If
    the defendant does not do so, the plaintiff will succeed.

[30]

Fontaine
does not assist the respondents.  El Dali does not rely on
res ipsa
    loquitur
.  The appellant led direct evidence that Panjalingam crossed the
    centre line and struck El Dalis car after it was stopped.  This courts
    decision in
Levesque
, which was decided after
Fontaine
, holds
    that evidence of this sort establishes a
prima facie
case of
    negligence.  As Panjalingam did not negate this evidence, he must be found
    negligent.  The jurys verdict holding otherwise is unreasonable.

[31]

For
    these reasons, I conclude that the jurys verdict on liability was unreasonable. 
    It is therefore not necessary to deal with the appellants second ground of
    appeal concerning the trial judges charge to the jury.  In a civil case, an appellate
    court may order a new trial where there has been a substantial wrong or
    miscarriage of justice has occurred:
Courts of Justice Act
, R.S.O.
    1990, c. C.43, s. 134(6).  The judgment dismissing this action was unjust in the
    light of the jurys unsupported finding that Panjalingam was not negligent.  I
    would therefore order a new trial on the issue of liability only.

D.

conclusion

[32]

I
    would allow the appeal, set aside the judgment at trial, and order a new trial
    on liability only. The parties may make brief written submissions on the costs
    of the appeal and the trial within two weeks of the release of these reasons.

Released: Jan. 18, 2013                               John
    Laskin J.A.

JL                                                                     I
    agree J.C. MacPherson J.A.

I
    agree E.E. Gillese J.A.


