



COURT OF APPEAL FOR ONTARIO

CITATION: Sidhu v. State Farm Mutual Automobile Insurance
    Company, 2014 ONCA 920

DATE: 20141223

DOCKET: C57027

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Harinder Kaur Sidhu

Plaintiff (Respondent)

and

State Farm Mutual Automobile Insurance Company

Defendant (Appellant)

Todd J. McCarthy, for the appellant

Francis J. Burns, for the respondent

Heard and released orally: December 16, 2014

On appeal from the judgment of Justice Myrna L. Lack of
    the Superior Court of Justice, dated December 12, 2012.

ENDORSEMENT

[1]

The appellant argues that the trial judge erred in dismissing two
    motions for a mistrial and that her instructions to the jury regarding certain
    statements made by plaintiffs counsel in his jury address were inadequate.

[2]

A trial judges decision on a mistrial motion is entitled to deference
    on appeal. In our view, the reasons of the trial judge reveal no error of law
    or principle.

[3]

The first ruling related to the scope and content of the
    cross-examination of the State Farm adjuster. The trial judge was not satisfied
    that there was an intentional breach of her earlier ruling and she was
    satisfied that an appropriate instruction to the jury could undo any damage.

[4]

The second ruling dealt with a number of complaints as to the
    plaintiffs closing address to the jury. The trial judge specifically addressed
    the references to Canada Pension Plan (CPP) benefits, the big lie, and the
    irrelevance of the conduct of State Farm. She concluded that any harm or prejudice
    could be appropriately dealt with by a clear instruction to the jury.

[5]

She then proceeded to deliver what we regard as a clear instruction on
    each point. She instructed the jury this case is not about the conduct of
    State Farm. She indicated that plaintiffs counsel should not have made any
    reference to the conduct of State Farm and specifically told the jury you
    should disregard any such suggestions. She appropriately directed the jury to
    its task by stating your focus in this case is on the issue of Mrs. Sidhus
    entitlement to benefits, not State Farms conduct.

[6]

With reference to the big lie, she admonished plaintiffs counsel,
    stating he should not have made those comments to you, they were totally
    inappropriate. You should disregard them.

[7]

Finally, with respect to the CPP benefits, again, she instructed the
    jury that plaintiffs counsel should not have mentioned that to you. She
    further instructed the jury that there was no evidence about the CPP program,
    or what the Canada Pension authorities had decided or why. She added it has
    nothing to do with the issues that you have to decide. You should completely
    disregard whether or not Mrs. Sidhu is entitled to or receives Canada Pension.
    Its just not relevant.

[8]

This was a hotly contested jury trial. We are not persuaded that, as the
    appellant suggests, the trial judge lost control of this trial. She dealt with
    objections as they were made. She delivered clear and prompt rulings on the
    mistrial application. We are not persuaded that she failed to appreciate the significance
    or impact of the contested submissions made by plaintiffs counsel. Her jury address
    was clear on all points and we are satisfied that the jury would have properly
    understood their task, what they were not consider and what they were to
    consider.

[9]

The appellant also argues that the trial erred in awarding interest at
    two per cent per month on overdue payments. At the time of the plaintiffs
    accident, the
Statutory Accident Benefits Schedule  Accidents on or After
    November 1, 1996
, O.Reg. 403/96 provided that an insurer had to pay
    interest on unpaid benefits at the rate of two per cent per month, compounded
    monthly. As of September 1, 2010, that provision was replaced by a
Statutory
    Accident Benefits Schedule  Effective September 1, 2010
, O.Reg. 34/10
    which reduced the applicable rate of interest to one per cent per month,
    compounded monthly.

[10]

However,
    s. 2(2) of the 2010 schedule provides that interest shall be paid under that
    regulation in the amount determined under the previous schedule. Therefore, s.
    2(2) of the new schedule changes the procedure for claiming benefits and the
    payment of benefits, but does not change substantive rights such as the rights
    to the former two per cent interest rate. See
Federico v. State Farm
    Insurance Company
, 2013 CarswellOnt. 6347, at para. 64 (F.S.C.O.).

[11]

The
    appellant did not pursue the argument that child benefits paid under the Canada
    Pension Plan should have been deducted from the statutory accident benefits
    awarded.

[12]

For
    these reasons then, the appeal is dismissed.

[13]

The
    respondent is entitled to her costs of the appeal, which we fix at $15,000,
    inclusive of disbursements and applicable taxes.

R.J.
    Sharpe J.A.

K.
    van Rensburg J.A.

G.
    Pardu J.A.


