



COURT OF APPEAL FOR ONTARIO

CITATION: Montepeque v. State Farm Mutual Automobile
    Insurance Company, 2017 ONCA 959

DATE: 20171207

DOCKET: C61477

Laskin, Feldman and Juriansz JJ.A.

BETWEEN

Carlota Montepeque
, Alberto Barquin and
    Francisco Barquin

Plaintiffs (
Appellant
)

and

State Farm Mutual Automobile Insurance Company

Defendant (Respondent)

Karl Arvai, for the appellant

Chris Paliare and Tina Lie, for the respondent

Heard: August 22, 2017

On appeal from the judgment of Justice Alissa K. Mitchell
    of the Superior Court of Justice, dated November 17, 2015.

Laskin J.A.:

A.

introduction

[1]

In an early November morning in 2008, sometime after midnight, the
    appellant, Carlota Montepeque, was driving her car east on a two-lane highway
    in London, Ontario. She had two passengers. As she approached a curve in the
    road, she claimed that another car travelling west crossed the center line into
    her lane. She swerved to the shoulder to avoid a collision, lost control of her
    car, and rolled into a ditch. She suffered injuries to her neck, shoulders,
    back, and right knee.

[2]

The driver of the other car did not stop and was never identified.
    Montepeque therefore sued her own car insurer, the respondent, State Farm, for
    damages under the unidentified motorist coverage in her car insurance policy. Her
    action was tried before a jury for 17 days. One of the passengers testified and
    corroborated Montepeques account of the accident. State Farm called no evidence
    on liability, but took the position that there was no unidentified car at all,
    or if there was one, it did not cross over into Montepeques lane.

[3]

The first question that the jury was asked to answer was the central question
    on the issue of liability. This question read: Did the negligence of an unidentified
    driver cause or contribute to the accident that occurred on November 23, 2008?
    The jury answered no. Montepeques action was thus dismissed. The jury had,
    however, answered yes to question 9, which asked whether Montepeques
    evidence of the involvement of an unidentified automobile was corroborated.
    Whether the jurys answer to these two questions were inconsistent is the main
    issue on the appeal.

[4]

Montepeque raises that issue and three other issues on her appeal.

1.

Should the verdict be set aside as unjust and unreasonable because the
    jurys answers to questions 1 and 9 were inconsistent?

2.

Did the trial judge err in her charge to the jury? Montepeque contends
    that the trial judge erred in three ways:

·

She did not properly charge the jury on the standard of care in
    an emergency situation;

·

She did not properly charge the jury on the burden of proof; and

·

Her charge was unbalanced and unfair.

3.

Does the conduct of counsel for State Farm during the trial warrant this
    courts intervention?

4.

If the answer to question 1, 2, or 3 is yes, should this court grant
    judgment for Montepeque in the amount of damages assessed by the jury ($449,900)
    or order a new trial?

[5]

I would answer no to questions 1, 2 and 3, and would therefore dismiss
    Montepeques appeal.

B.

details of the accident and the events leading up to it

[6]

Sometime between 11:00 and 11:30 P.M., the evening before the accident,
    Montepeque and her friend Rosa Dominguez went to Tiger Jacks, a bar in London,
    Ontario. They stayed only a short time. Montepeque said that she did not drink at
    all at Tiger Jacks. But while there, she and Dominguez ran into an
    acquaintance of hers, a man named Francesco Pimentel. He suggested that they go
    to another bar in a small town outside London, where his friend was playing
    music. The other two agreed. Montepeque drove.

[7]

The evidence is unclear on how long it took the three to get to the
    second bar. Montepeque testified that it took some time and agreed that it
    was more than 10 minutes, while Dominguez said that it took around 40 minutes. Pimentel
    did not testify at trial.

[8]

The evidence is also unclear on how long the three stayed at the second
    bar. Montepeque said they were there for 10 to 15 minutes. Dominguez said they
    only looked around and then left. The accident occurred on their return to
    London. Again the record is unclear when exactly the accident occurred, but on
    the evidence it seemed to have been sometime between 12:30 and 2:30 A.M.

[9]

Both Montepeque and Dominguez testified about Montepeques driving
    speed, the weather, the road conditions, when the oncoming car was visible, and
    what caused the accident.

[10]

Montepeque
    said that she was driving at 85 km/hour, just above the speed limit of 80 km/hour.
    She said that she was unfamiliar with the highway and was taking directions
    from Pimentel. She also testified that the weather was clear and the road
    conditions were good. Dominguez confirmed the speed at which Montepeque was
    driving, but said that the weather was foggy and the road was wet.

[11]

Montepeque
    testified that she first saw an oncoming car about half a block away, as she
    was approaching a gradual curve in the two lane highway. At the time, she
    agreed that the other car looked like it was in its lane. Only when the other
    car was exactly in front of her  she estimated about one metre away  did
    she notice that it had crossed into her lane.

[12]

Montepeque
    and Dominguez gave somewhat conflicting versions of the accident. Montepeque
    said that the headlights from the other car blinded her. She got scared and
    panicked. She heard Dominguez yelling be careful! She closed her eyes and
    veered her car to the right, causing her to lose control when she hit either
    snow or gravel on the shoulder. She did not open her eyes until after her car
    had rolled over in the ditch. When she was asked how far into her lane the
    other car had come, she replied: the only memory I have is the lights in front
    of me coming toward me. She agreed that they were headlight to headlight.
    She thought that the other car was going faster than hers.

[13]

Dominguez,
    on the other hand, testified that when she first saw the other car, it was in
    the middle of the road. She initially thought that the other car would go
    back into its lane, but when she realized it wouldnt, she told Montepeque to
    be careful. She said that at this point, Montepeque was already breaking and
    turning right to avoid the other car. She said Montepeque lost control of her
    car after hitting black ice.

[14]

Constable
    Josh McCallum investigated the accident. He arrived at the scene shortly after
    2:29 A.M. and immediately took witness statements and prepared a motor vehicle
    accident report. He said that Montepeque and her two passengers gave generally
    consistent accounts of what had occurred. He agreed with Montepeque that the
    weather conditions were good and the road was clear. He also said that
    Montepeques breath did not smell of alcohol. He examined the road and said he saw
    skid marks from Montepeques car, but not from the other car.

C.

issues

(1)

Should the verdict be set aside because the jurys answers to questions 1
    and 9 were inconsistent?

[15]

The
    jury answered no to question 1, the fundamental question whether the
    negligence of an unidentified driver caused or contributed to the accident. The
    inconsistency on which Montepeque relies is the jurys answer to another
    question, question 9, which was required because of her claim under her
    unidentified motorist coverage policy with State Farm.

[16]

As
    the other driver was never identified, Montepeque claimed under s. 5 of the
    Ontario Automobile Policy and OPCF 44R Family Protection Coverage. Under s.
    5.2.1 of the Ontario Automobile Policy, an insured claimant has a legal right
    to recover as damages from the owner or driver of an uninsured automobile an
    amount up to the limits in this Section. Section 5.7.1.1 limits coverage to
    the minimum limits for automobile liability insurance in the jurisdiction in
    which the accident happens, which in Ontario is $200,000.

[17]

Section
    3 of OPCF 44R provides an insured claimant with excess coverage for an amount over
    $200,000, up to the amount that the claimant is legally entitled to recover
    from a driver or owner of an unidentified automobile. But to receive the excess
    coverage amount from ones insurer, the claimant must meet an additional
    evidentiary requirement. The claimants own evidence of the involvement of
    the unidentified automobile must be corroborated by other material evidence. OPCF
    44R defines other material evidence to mean either independent witness
    evidence or physical evidence indicating the involvement of an unidentified
    automobile.

[18]

At
    trial, Montepeque claimed an amount against State Farm that was available to
    her only through her excess coverage policy under OPCF 44R. Question 9 was not
    originally included in the jury charge. In a post-charge conference with the
    trial judge, Montepeques counsel asked for a new question, which addressed the
    additional evidentiary requirement of OPCF 44R, to be added to the list of
    questions for the jury to answer. The trial judge agreed, and put question 9
    for the jury as follows:

Is there independent witness evidence or physical evidence to
    corroborate the evidence of Ms. Montepeque, indicating the involvement of an
    unidentified automobile?

[19]

The
    jury answered this question yes. As there was no physical evidence, the jury
    must have concluded that Dominguezs evidence corroborated Montepeques
    evidence of the involvement of an unidentified automobile.

[20]

Before
    this court, Montepeque submits that the jurys answer to question 1 (the
    negligence of the driver of an unidentified car did not cause or contribute to
    the accident) and its answer to question 9 (Montepeques evidence of the
    involvement on an unidentified automobile was corroborated by other material
    evidence) are inconsistent. She contends that this inconsistency yielded an
    unjust and unreasonable result.

[21]

To
    deal with this issue, Montepeque could have brought a motion at the end of the
    trial under r. 52.08(1)(c) of the
Rules of Civil Procedure
[1]
.
    That subrule gives a trial judge discretion to direct that an action be retried
    with another jury where the jury answers some but not all of the questions
    directed to it or gives conflicting answers, so that judgment cannot be granted
    on its findings. Montepeque did not bring a motion under r. 52.08(1)(c).
    Nonetheless, she is not precluded from raising on appeal an inconsistency in
    the jurys answers.

[22]

However,
    the standard of appellate review becomes relevant. In a civil case, an
    appellate court has a very limited right to set aside the verdict of a jury for
    unreasonableness. Where the trial judges charge is fair and accurate, and
    correctly states the applicable law, the jurys verdict will be set aside only
    where it is so unreasonable and unjust that no jury reviewing the evidence as a
    whole and acting judicially could have reached it: see
Lazare v. Harvey
,
    2008 ONCA 171.

[23]

This
    standard for appellate intervention is stringent. But like the rest of us,
    civil juries are not infallible. On occasion they make mistakes. If I were
    convinced that the jurys answers to questions 1 and 9 were irreconcilable, I
    would hold that its verdict was so unjust and unreasonable that appellate
    intervention was warranted. But I am not so convinced.

[24]

At
    trial, Montepeques position was that the driver of the unidentified car was
    negligent by failing to remain in his or her own lane and instead crossing into
    Montepeques lane, and that the drivers negligence caused or contributed to
    the accident. Montepeque also took the position that she was not contributorily
    negligent because she did the only thing that she could do in the
    circumstances to avoid a head-on crash. State Farms position was two-pronged.
    First, State Farm argued that there never was another car. Second, and in the
    alternative, it argued that if there was another unidentified car, the driver
    did not cross into Montepeques lane and therefore was not negligent.

[25]

By
    its answer to question 9 the jury must have rejected State Farms contention
    that there was no unidentified car, and instead concluded that an unidentified
    car was there and was involved in the incident. But by its answer to question
    1, the jury must have disbelieved Montepeques and Dominguezs evidence that
    the unidentified car crossed the centre line, and thus concluded that the cars
    driver was not negligent
[2]
.
    Those two conclusions are not inconsistent; they are reconcilable.

[26]

Questions
    1 and 9 address different issues. Question 1 asks whether Montepeque proved on
    a balance of probabilities that the driver of the unidentified car caused the
    accident by crossing the center line. Question 9 does not deal with
    Montepeques onus of proof or with causation. It simply asks whether there was
    corroboration for Montepeques evidence of the involvement of an unidentified
    car.

[27]

Legal
    causation and mere involvement differ. The latter could have existed
    without the former. There was evidence that supported the jurys answer to
    question 1, and yet, at the same time, supported its answer to question 9. In other
    words there was evidence that an unidentified car was involved, but
    Montepeque had failed to prove that its driver had crossed the center line.

[28]

The
    following pieces of evidence support the consistency of the jurys answers to
    questions 1 and 9:

·

Montepeque was unfamiliar with the highway, yet she was driving
    above the speed limit;

·

She admitted that the other car was in its proper lane at least
    up to a half a block away from her;

·

She claimed that she reacted when the other car was exactly on
    top of her or one metre away, a claim that was implausible because if the cars
    were that close, she could not have avoided a collision;

·

She also said that she closed her eyes as she swerved to the
    right, casting doubt whether she really saw the position of the other car;

·

She could not tell how far the other car came into her lane,
    likely because its headlights blinded her, leading to the reasonable inference
    that the other car may not have been in her lane at all;

·

Montepeques evidence and Dominguezs evidence conflicted on what
    caused the accident. Montepeque said she lost control as she swerved to avoid
    the other car; Dominguez said that Montepeque lost control only after she
    braked and slid on some black ice. This conflict may have caused the jury to
    disbelieve both accounts of how the accident happened;

·

The other car did not leave any skid marks, from which the jury
    could infer that its driver did not need to take evasive action because the car
    was in its proper lane.

[29]

The
    jurys answers to questions 1 and 9 were consistent, and reconcilable on the
    evidence. For that reason the jurys verdict was not unreasonable.

[30]

As
    an aside, I note that because of its answer to question 1, the jury did not need
    to answer question 9. The likely explanation why the jury answered it is that
    question 9 was not initially put to the jury. As I mentioned, Question 9 was
    only added at the request of Montepeques counsel to address Montepeques
    eligibility for excess coverage. This context explains why the trial judge did
    not stipulate in her instructions to the jury that it did not have to answer
    question 9 if its answer to question 1 was no.

(2)

Did the trial judge err in her charge to the jury?

[31]

As
    I said in the introduction, Montepeque submits that the trial judges jury
    charge contains three errors:

·

It did not properly charge the jury on the standard of care in an
    emergency situation;

·

It did not properly charge the jury on the burden of proof; and

·

It was unbalanced and unfair.

[32]

I
    would not give effect to any of three branches of Montepeques submission. Two
    points of context are important.

[33]

First,
    the trial judge gave counsel a draft of her charge and invited comments on it
    before she gave it to the jury. Of the three concerns about the charge now
    raised on appeal, Montepeques trial counsel raised only the first concern with
    the trial judge, and seemed satisfied with the way the trial judge resolved his
    concern.

[34]

In
    a civil case, the failure to object at trial is usually fatal on appeal because
    it is an indication that trial counsel did not regard as important or
    necessary the additional direction now asserted:
Marshall v. Watson Wyatt
    & Co.
(2002), 57 O.R. (3d) 813 (C.A.), at para. 15. An appellate court
    can still give effect to an objection to an aspect of a trial judges jury
    charge raised for the first time on appeal, but only if not giving effect to
    the objection would cause a miscarriage of justice: see
Kerr v. Loblaws
    Inc.
, 2007 ONCA 371,
224 O.A.C. 56
, at para. 32;
    and
Courts of Justice Act
,
R.S.O. 1990, c. C.43, s. 134(6).

[35]

Second,
    as this court has often said, a trial judges charge need not be perfect to
    withstand appellate intervention. Recently in
Hansen v. Williams
, 2014
    ONCA 118, at para. 11, citing
Brochu v. Pond
(2002), 62 O.R. (3d) 722
    (C.A.), at para. 68, this court concisely stated the standard of appellate
    review of a trial judges civil jury charge as follows:

The trial judges charge did not need to be perfect. Absent an
    error that amounts to a substantial wrong or a miscarriage of justice, or
    circumstances where the interests of justice otherwise so require, a new trial
    will not be ordered.

(a)

The standard of care in an emergency situation

[36]

Montepeque
    submits that, because she was facing an emergency situation when she saw the
    oncoming unidentified car, the trial judge should have instructed the jury that
    Montepeque could not be expected to act as she might in calmer circumstances.
    Before the trial judge, Montepeque wanted an instruction similar to the agony
    of the moment instruction approved by the British Columbia Supreme Court in
Soto
    v. Peel
, 2013 BCSC 409, at para. 92:

[W]here the plaintiff is compelled to make a quick decision in
    the agony of the moment he is not expected to take into account all the
    considerations that a calmer appraisal of the situation might present to the
    mind. Perfect foresight and presence of mind are not required. This rule,
    sometimes called the agony of the moment rule, is merely a particular
    application of the rule that the standard of care required of both plaintiff
    and defendant is that of a reasonable [person].

[37]

The
    trial judges draft charge did not contain an express agony of the moment
    instruction. Instead, it contained the following sentence, to which Montepeque
    objected: [A driver] must take proper precautions to guard against risks,
    which might reasonably be anticipated to arise from time to time as she
    proceeds on her way. Montepeques counsel specifically objected to the phrase
    from time to time, as to him it did not capture the emergency nature of the
    situation facing his client. He proposed that the trial judge eliminate the
    phrase he had objected to, and instead only include the words against risks
    which might reasonably be anticipated. If she did that he said I can live
    with it.

[38]

The
    trial judge agreed with this proposal, as did State Farms counsel. The trial
    judge then charged the jury as Montepeques counsel had proposed:

I will now first address first the issue of liability and
    dealing specifically with the operation of a motor vehicle; a driver of a motor
    vehicle must exercise at all times the same manner of care and caution as might
    be expected in like circumstances of a reasonably careful driver. He or she
    must take proper precautions to guard against risks, which might reasonably be
    anticipated to arise. This degree of care and nothing more is expected of her.
    She is not asked to maintain a standard of care of perfection or to take
    extravagant precautions. A drivers only duty is to anticipate what is
    reasonably likely to happen.

[39]

I
    see no error in this charge. It captured Montepeques duty in an emergency
    situation by stressing that she was not held to a standard of perfection, and
    was only obliged to guard against risks that she might reasonably anticipate
    would arise. The jury, using its common sense, would have had no difficulty in
    appreciating the circumstances in which Montepeque said she found herself.

(b)

The burden of proof

[40]

By
    crossing the center line of a road, a driver breaches s. 148(1) of
Highway
    Traffic Act
[3]
.
    A driver who breaches s. 148(1) is
prima facie
negligent and bears the
    onus of explaining that the accident could not have been avoided by the
    exercise of reasonable care: see
El Dali v. Panjalingam
, 2013 ONCA 24,
    113 O.R. (3d) 721, at paras. 17-18.

[41]

The
    trial judge charged the jury that Montepeque had the burden of establishing on
    a balance of probabilities that the negligence of the driver of the
    unidentified car caused her injuries. But Montepeque points out, correctly,
    that the trial judge did not expressly charge the jury on the shifting onus
    applicable to a driver who has breached the
Highway Traffic Act
. That
    is, the trial judge did not instruct the jury that if the unidentified car crossed
    the center line, the burden of proof shifted to the cars driver to disprove
    negligence. Montepeque contends that the trial judges failure to do so was an
    error of law, for which we should set aside the jurys verdict. I do not accept
    Montepeques contention.

[42]

It
    would have been preferable for the trial judge to have expressly charged the
    jury on the shifting burden of proof. But that instruction was not asked for at
    trial. And the trial judges actual instruction conveyed the essence of the
    parties positions. The trial judge charged the jury:

State Farm alleges there was no second vehicle or,
    alternatively, that if there was another vehicle it was not being driven in a
    negligent manner that is
at no time was the other vehicle in, or partially
    in, Ms. Montepeques lane of traffic
. [Emphasis added.]

[43]

State
    Farms consistent position throughout the trial was that, if the jury found
    that there was another car, its driver did not cross the center line into
    Montepeques lane. State Farm never took the position that if the other driver
    did cross the center line, that driver was nonetheless not negligent. As is at
    least implicitly evident in the trial judges charge, State Farm effectively conceded
    that if the other driver crossed the center line, the other driver was
    negligent. I am satisfied that the jury would have understood State Farms
    position. Thus, the trial judges failure to charge the jury expressly on the
    shifting burden of proof did not cause a miscarriage of justice.

[44]

I
    add one other point on the burden of proof. In one section of her factum,
    Montepeque states that the trial judge failed to charge the jury on the
    potential negligence of the unidentified driver in approaching with high beam
    headlights. Montepeque did not plead in her statement of claim that the use of
    high beams amounted to negligence. Nor did her counsel mention high beams in his
    closing address to the jury. He argued the case solely on the ground that the
    unidentified driver was negligent in crossing the center line into Montepeques
    lane. The trial judge cannot be criticized for failing to instruct the jury on
    an issue neither pleaded nor argued.

(c)

Unbalanced and unfair charge?

[45]

Montepeque
    submits that the trial judges charge did not review the evidence and positions
    of the parties in a fair and balanced way. I do not agree.

[46]

The
    trial judges charge on the parties positions and the evidence was relatively
    brief, but it was adequate. She summarized the evidence in a balanced way. That
    summary did not deprive Montepeque of a fair trial.

[47]

Moreover,
    counsel for Montepeque had the opportunity both before and after the charge was
    given to comment on the summary of the evidence on liability. He had one minor
    objection to the trial judges failure to include a piece of evidence. He did
    not suggest that the summary was unfair or unbalanced. Again his failure to
    object is telling. I can do no better than quote the words of this court in
Caton
    v. Devecseri Estate
, 2
014
    ONCA 52, at para 4:

[I]n our view, read as a whole, the charge was not unbalanced
    or unfair to the appellant. The trial judge carefully summarized the
    appellants evidence and his position on the question of liability. The
    appellants counsel, like other counsel, was actively involved in reviewing and
    commenting upon the trial judges draft charge. The appellants counsel did not
    object to the trial judges instruction on concurrent liability or object on
    the basis of the overall fairness of the charge. This strongly suggests that
    this experienced counsel saw no overall imbalance or unfairness in the charge
    on the basis now urged before this court. At the end of the day, we are satisfied
    that this jury would have understood that it was free to accept or reject any
    of the liability theories advanced by the respondents against the appellant.

[48]

I
    would not give effect to Montepeques submissions on the trial judges charge
    to the jury.

(3)

Did the conduct of counsel for State Farm during the trial warrant this
    courts intervention

[49]

Montepeque
    argues that the conduct of State Farms counsel at trial  not Mr. Paliare or
    Ms. Lie - was inappropriate. Combined with the jurys findings, Montepeque
    argues that counsels conduct created an appearance of unfairness warranting
    appellate intervention. I do not accept this argument.

[50]

Montepeque
    calls into question the following conduct of State Farms trial counsel:

·

Humorous remarks to the jury on two occasions at the elevator
    lobby outside the courtroom;

·

Humorous remarks during the cross-examination of Montepeques
    witnesses; and

·

Two misrepresentations witnesses made in the presence of the jury.

[51]

This
    conduct prompted Montepeques counsel to bring a motion to strike the jury. The
    trial judge dismissed the motion and, after the jurys verdict, gave reasons
    for her ruling. Montepeque does not directly challenge the trial judges ruling
    or her findings on the conduct of State Farms trial counsel. Instead she asks
    this court to reconsider that counsels conduct afresh.

[52]

As
    I will discuss, to the extent the conduct of State Farms trial counsel was
    inappropriate, the trial judge adequately addressed Montepeques concerns.

(a)

The two incidents at the elevator lobby

[53]

What
    occurred at the elevator lobby on the two occasions that Montepeque relies on
    is disputed. Montepeque claims that on each occasion, State Farms trial counsel
    made a joke in the presence of the jury, which caused the jury to laugh.
    Montepeques counsel expressed concern with the jury feeling some connection
    perhaps or some connection with  with defence counsel that they dont have
    with me. State Farms trial counsel denied that he had talked to or engaged
    with any juror. He told the trial judge that he had been joking with his
    associate and the court services officer, while they and the jury were waiting
    for the elevator.

[54]

In
    her ruling, the trial judge found that she lacked the evidence to resolve the
    dispute. At para. 15 of her reasons, she held that there is no proper evidence
    before me which might allow me to consider any prejudice to the plaintiff
    arising from [State Farms trial counsels] interaction with the jury outside
    the courtroom.

[55]

Nonetheless,
    when Montepeques counsel raised his concern, the trial judge asked State
    Farms trial counsel to steer clear of the jury and give them a wide berth
    to avoid any future issues. She also discussed with both counsel whether she should
    address the matter specifically in her charge. Counsel for Montepeque
    responded: Only in a general way. Im not asking that Your Honour address it
    specifically.

[56]

The
    trial judge did as Montepeques counsel requested. She added to her charge to
    the jury a specific direction that the jury decide the case solely on the
    evidence, not on the conduct of the lawyers:

You must not decide this case on a preference for the
    presentation style, demeanor or personality of any particular lawyer involved
    in this case. Whether or not you agreed with the approach taken by a particular
    lawyer with regards to questions asked, the length of examination, the order of
    witnesses or the evidence called in support of his or her clients case should
    not and must not affect your decision-making. Only the evidence is relevant and
    not the manner in which it was elicited.

(b)

Humorous remarks in the courtroom

[57]

Montepeques
    counsel also complained about counsel for State Farms allegedly humorous
    remarks during his cross-examination of Montepeques witnesses. In her ruling
    the trial judge appropriately found that counsels use of humour during
    cross-examinations was hardly a basis to strike the jury:

[State Farms counsels] editorializing during his
    cross-examination of the plaintiffs witness is one feature of his litigation
    style. I suspect he uses his sense of humour as a tool for effective
    cross-examination with the hope it endears him to the witness and he is
    therefore able to elicit the evidence he wants. Whatever the reason, it is
    hardly grounds for striking the jury that a collateral benefit is that he also
    endears himself to the jury or some of its members. Both my opening and closing
    instructions expressly address this issue. Because of the concern expressed by [Montepeques
    counsel], additional language was added to my closing charge to further address
    this issue. I must presume the jury will act as instructed. There is no reason
    to doubt their ability to abide by my instruction and to deliver a verdict
    based solely on the evidence without influence by extraneous matters.

[58]

Moreover,
    the trial judges direction to the jury (which I referred to above) to decide
    the case based on the evidence and not on the conduct of the lawyers adequately
    addressed any concern arising from the way in which State Farms trial counsel conducted
    cross-examinations. And, as the trial judge properly noted in her ruling, she
    had no reason to doubt the jurys ability to follow her instructions.

(c)

The two alleged misrepresentations

[59]

Finally,
    Montepeque contends that State Farms trial counsel, in the presence of the
    jury, made two misrepresentations  one concerning a letter sent from
    Montepeques counsel to him, the other concerning the scheduling of witnesses.
    Montepeque further contends that these misrepresentations caused her
    irreparable prejudice.

[60]

The
    two incidents in question occurred on the same day. The first incident occurred
    when State Farms trial counsel referred to a shot across the bow  a letter
    sent from Montepeques counsel  that prevented State Farms experts from
    speaking with a trial witness. Montepeque alleges that these comments were
    likely to inflame the jury.

[61]

The
    second incident arose after Montepeques counsel had cross-examined State Farms
    first witness on damages. State Farms trial counsel then announced that he
    would be calling one further witness, a doctor. According to Montepeque, State
    Farms trial counsel created the impression that there had been discussions
    between counsel resulting in an agreement that would dispense with the need to
    call any additional witnesses on Montepeques pecuniary damages claim. The
    trial was then adjourned for several days to accommodate a jurors
    unavailability. When the trial resumed, State Farms trial counsel served a new
    economic loss report and announced that he would be calling five more witnesses.
    Montepeque alleged that this conduct created the impression Montepeque had
    acted unreasonably and was unwilling to reach an agreement that would allow
    State Farm to call one witness as opposed to five.

[62]

As
    the trial judge recognized, State Farms trial counsel should have made his
    statements in the absence of the jury. But the trial judge, correctly in my
    view, rejected the suggestion that either statement in any way prejudiced
    Montepeque. She ruled at paras. 12-14 :

While ideally the comments of [State Farms trial counsel]
    addressing future scheduling made on October 28
th
should have been
    made in the absence of the jury, they were directed to the court, not the jury.
    The extent to which any of the jurors was listening to these comments is
    unknown. Certainly, none of the jurors would have known the context for [State
    Farms trial counsels] comment shot across the bow and I cannot imagine any
    juror attributing any ill-will to the plaintiff in the absence of such context.

There is no evidence to support the plaintiffs submission that
    [State Farms trial counsel] intended to goad the jury into thinking the
    parties were collaborating to reduce the remaining evidence to be called when
    in fact they were not, so as to prejudice the plaintiff. The defendant is
    entitled to call such witnesses as may be required to answer the plaintiffs
    case. Defendants counsel perhaps may be criticized for being overly ambitious
    in his estimate of the number of witnesses needed to make the defendants case
    as it appears that upon reflection during the break in trial, the defendant
    reassessed its case and determined additional evidence was needed. This is the
    defendants right.

There is no basis to conclude or infer that extending the trial
    time to accommodate five rather than one defence witness would incense the jury
    to the prejudice of the plaintiff. I have found this jury to have been most
    understanding, patient and accommodating throughout the trial. They appear
    attentive, conscientious and eager to fulfill and complete their duties no
    matter how long the trial may take.

[63]

I
    see no error in the trial judges ruling.

[64]

I
    conclude that this court has no basis to intervene because of the conduct of
    State Farms trial counsel. Any concerns that arose from his conduct were appropriately
    dealt with by the trial judge. I would not give effect to Montepeques
    submissions on this issue.

(4)

Should the court grant judgment for Montepeque in the amount of damages
    assessed by the jury or order a new trial

[65]

In
    the light of my answers to the first three questions, it is unnecessary to address
    this issue.

D.

conclusion

[66]

I
    conclude as follows:

·

The jurys answers to questions 1 and 9 were not inconsistent;

·

The trial judge did not err in her charge to the jury; and

·

The conduct of trial counsel for State Farm does not warrant our
    intervention.

[67]

I
    would therefore dismiss the appeal, with cost fixed at $20,000 inclusive of
    disbursements and HST.

Released: J.L. December 7, 2017

John Laskin J.A.

I agree. K. Feldman J.A.

I agree. R.G. Juriansz J.A.





[1]
R.R.O. 1990, Reg. 194.



[2]

Because the jury found that the driver of the unidentified car
    was not negligent, it did not need to answer whether Montepeque was
    contributorily negligent.



[3]

R.S.O. 1990 c. H.8.


