



COURT OF APPEAL FOR ONTARIO

CITATION: Vanderbeke v. O'Connor, 2013 ONCA
    665

DATE: 20131101

DOCKET: C55163

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Keith Vanderbeke

Plaintiff (Appellant)

and

Michael OConnor, Howard Mutual Insurance Company

Defendants (Respondents)

James J. Mays and Anna Szczurko, for the appellant

Michael J. Huclack and David Visschedyk, for the
    respondent

Heard:  October 28, 2013

On appeal from the judgment of Justice Terrence L.J.
    Patterson of the Superior Court of Justice, dated February 2, 2012.

By the Court:

[1]

This appeal arises out of a motor vehicle collision between the
    appellant and the respondent Michael OConnor on August 29, 2003. The
    appellants vehicle was rear-ended and he suffered injuries, including the
    exacerbation of a pre-existing lower back injury.

[2]

The focus of the four-week jury trial was on whether the injuries
    suffered by the appellant prevented him from returning to his employment as an
    electrician with Chrysler Canada.

[3]

The jury awarded the appellant non-pecuniary general damages of $50,000,
    damages for future wage loss in the amount of $67,000 and pre-judgment interest
    for a total award of $114,216.44.

[4]

On appeal, the appellant submits that the trial judge made the following
    errors: (i) admitting into evidence a statement of claim issued by the
    appellant against the Workplace Safety and Insurance Board (WSIB);  (ii)
    failing to strike the jury or to provide sufficient and balanced corrective
    comments to the jury as a result of the cross-examination of the appellants
    spouse, Diane Mifflin; (iii) failing to provide correcting instructions and
    comments to the jury concerning the closing address of the respondents
    counsel; and (iv) failing to provide a proper charge to assist the jury in
    understanding the law, issues and evidence. The appellant submits that the
    cumulative effect of these errors was that trial fairness was compromised to a
    degree sufficient to result in a substantial wrong or miscarriage of justice
    and that a new trial is required.

[5]

The respondents cross-appeal on the issue of costs. They submit that the
    trial judge failed to appreciate rule 49.10 (2) of the
Rules of Civil
    Procedure
or failed to follow his own Rule 49 ruling by awarding
    disbursements to the appellant for the period after the delivery of the
    respondents settlement offer.

THE APPEAL

1.

Admission of the Statement of Claim

[6]

Prior to the accident the appellant had made a series of claims for
    compensation to the WSIB as a result of workplace injuries. In 2002 after
    compensation was cut off by the WSIB he commenced an action against the WSIB
    and the Province of Ontario. In that proceeding he alleged an improper denial
    of benefits by the WSIB and took the position that he was disabled. The
    pleading was drafted by the appellant without the assistance of counsel and
    contained intemperate comments and serious allegations against the WSIB.

[7]

At trial the appellant objected to the admission of the document on the
    basis that its prejudicial impact outweighed any relevance. The trial judge
    admitted the statement of claim in evidence. The cross-examination of the
    appellant on the statement of claim focused not on the injury that was the
    subject of the claim, but on the appellants conduct in commencing the claim.
    During cross-examination no objection was made by counsel for the appellant
    regarding any of the questions asked on this issue.

[8]

The appellant submits that the admission into evidence of the statement
    of claim and the cross-examination thereon subjected him to ridicule and
    invited emotional decisions by the jury based on irrelevant considerations. We
    disagree.

[9]

The trial judge admitted the document, apparently on the basis that it
    was relevant to the issues of general damages and economic loss. He also
    advised counsel that he would hear from them if they wished to have the jury
    given a specific instruction regarding the document either in his final charge
    or as a mid-trial charge. Counsel for the appellant did not raise with the
    trial judge the issue of a correcting instruction either prior to or after the
    delivery of the final charge.

[10]

With
    respect to the use of the document, counsel for the appellant submits that it
    was used for an improper purpose unrelated to the basis upon which it was
    admitted. However, counsel did not object at trial to the questions asked in
    cross-examination regarding the claim or to the references made to it in the
    closing submissions of counsel for the respondents. While the failure to object
    is not fatal, it is a significant factor in a determination of whether the
    impugned conduct of counsel warrants appellate intervention.

[11]

The
    admission of the statement of claim into evidence was a decision within the
    trial judges discretion. We see no basis to interfere with the manner in which
    he exercised his discretion. We do note, however, that the statement in his
    ruling to the effect that the relevancy of the document was a matter for
    determination by the jury was incorrect and inconsistent with the evidentiary
    gatekeeper role played by a trial judge.

2.

CrossExamination of Diane Mifflin

[12]

Ms.
    Mifflin was served with a summons to witness requiring her to produce, among
    other things, documents related to a corporation that owned a family farm where
    the appellant resides. She did not produce those documents.

[13]

During
    the cross-examination of Ms. Mifflin, counsel for the respondents repeatedly
    accused her of intentionally flouting the authority of the court and
    concealing evidence. She explained that she did not believe that she was a
    director of the corporation and was therefore not required to produce the
    documents. In fact, she was a director of the corporation. The trial judge
    stated on the record and before the jury that he accepted her evidence that she
    did not believe that she was a director of the corporation.

[14]

Ms.
    Mifflin was also cross-examined regarding several letters she wrote to various
    doctors and insurers requesting that they correct errors in their reports
    regarding her spouse. Counsel for the respondents continuously suggested before
    the jury that Ms. Mifflin was attempting to influence these parties. In
    response, Ms. Mifflin stated that she was only endeavouring to correct factual
    errors in the reports.

[15]

At
    trial the appellant brought a motion to strike the jury relying upon the
    prejudicial impact of this evidence. That motion was denied.

[16]

The
    appellant submits that while the trial judge attempted to make some form of
    balancing comments, the comments were insufficient and that the references made
    to hiding and influencing were highly prejudicial. According to the
    appellant, in declining to strike the jury the trial judge erred in failing to
    fully analyze the prejudice arising from the comments during the
    cross-examination of Ms. Mifflin.

[17]

We
    would not give effect to this ground of appeal. A trial judges decision
    regarding whether to strike a jury will be afforded considerable deference. An
    appellate court will only interfere with the trial judges discretion in that
    regard where it was exercised capriciously, arbitrarily or was based on
    incorrect or inapplicable principles of law: see
Cowles v. Balac
,
    (2006) 83 O.R. (3d) 660 (C.A.). There is no suggestion that the decision of the
    trial judge not to strike the jury was capricious or arbitrary.

[18]

We
    are also not satisfied that the court exercised its discretion based on a legal
    error. In denying the motion to strike the jury, the trial judge correctly
    relied upon the decision of the Supreme Court of Canada in
Hamstra v. B.C.
    Rugby Union,
[1997] 1 S.C.R. 1092, in which the court held that the
    discharge of a jury is a remedy of last resort to be granted only if a
    substantial wrong or miscarriage of justice has foreclosed the possibility of a
    fair trial with the jury.

[19]

The
    trial judge was not obliged to provide a correcting instruction or to intervene
    in the cross-examination. A court has an obligation to prevent
    cross-examination which is abusive, unduly repetitive or inflammatory, or which
    delves into irrelevant matters. Otherwise courts grant counsel wide latitude in
    conducting cross-examination.  In the present case we fail to see how the
    cross-examination was improper. Ms. Mifflin did not produce the required
    documentation requested pursuant to a valid summons and took no steps to quash
    the summons in whole or in part. There was nothing impermissible in counsel
    cross-examining her on this issue or the issue of her correspondence with the
    doctors and insurers. Both categories of questions were relevant to her
    credibility as a witness and the questions related to the farm were relevant to
    the issue of potential income received by the appellant from the farming
    operations.

[20]

We
    note as well that if counsel wished to rely upon the letters to impeach Ms.
    Mifflins credibility he was obliged, pursuant to the rule in
Browne and
    Dunn
(1893), 6 R. 67 (H.L.), to put those letters to her in
    cross-examination in order to afford her the opportunity to respond. That is
    precisely what was done in this case.

3.

Closing Address of the Respondents Counsel

[21]

Counsel
    for the respondents is alleged to have made numerous statements of personal
    belief and opinion, along with unfounded and inflammatory allegations in his
    closing submission. The appellant submits that those references were designed
    to prejudice the jury against the appellant based on improper considerations
    and that the trial judges failure to provide any direction in his charge regarding
    these comments amounted to a legal error. We disagree.

[22]

In
    the present case, the comments made by counsel were directed to the appellants
    credibility, which was a critical issue at trial. While certain comments made
    by the respondents counsel were factually inaccurate (e.g. regarding who was
    served with the summons to witness) and included statements of opinion, we do
    not conclude that they individually or cumulatively required the trial judge to
    provide a correcting instruction to the jury.

[23]

It
    is also significant that there was no objection made by the appellant to the
    closing address and no request for an instruction by the trial judge. There is
    no absolute rule that a failure to object to the contents of a jury charge in a
    civil trial will estop an appellant from raising an objection, but, an
    appellate court is entitled to give it considerable weight:
Marshall v.
    Watson Wyatt & Co
., (2002), 57 O.R. (3d) 813 (C.A.). Moreover, as this
    court found in
Vokes Estate v. Palmer
, 2012 ONCA 510,
    294 O.A.C. 342: In the absence of an objection at trial, in most instances, an
    alleged misdirection or non-direction will not result in a new trial in a civil
    case unless the appellant can show that a substantial wrong or miscarriage of
    justice has occurred. We do not conclude that the comments made by the
    respondents counsel  rise to the level of a substantial wrong or miscarriage
    of justice requiring a new trial.

4.

Jury Charge

[24]

The
    appellant submits that the trial judge did not properly explain the interplay
    of WSIB benefits, accident benefits, employment benefits and the tort system in
    his charge. In addition, the appellant submits that the trial judge erred in
    relying upon a summary of the evidence supplied by counsel.

[25]

We
    reject this ground of appeal for the following reasons. First, there is no rule
    that in a civil jury trial the judge is required to review the facts in a jury
    charge.  Nor is there any authority for the proposition that the failure
    of the trial judge to review the facts necessarily requires an appellate court
    to order a new trial: see
Berthiaume-Palmer v. Borgundvaag
, 2010
    ONCA 470, 273 O.A.C. 397. In the present case there was a review of the facts
    as supplied by counsel. The trial judge was under no obligation to supplement
    those facts if he chose not to do so. Indeed, the appellant has not indicated
    what relevant or necessary facts were omitted from the charge.

[26]

Second,
    as noted above, in the absence of an objection from counsel to the form of the
    jury charge, appellate interference is only warranted where a substantial wrong
    or miscarriage of justice has occurred. The appellant has not met his onus in
    this regard. The charge contained a review of the law, the applicable standard
    of care and the issues. While the trial judge could have taken steps to more
    fully explain some of the legal issues, we do not conclude that the charge was
    so deficient that it constitutes a substantial wrong or miscarriage of justice.

5.

Conclusion

[27]

It
    follows from the foregoing analysis that we are not persuaded that the way in
    which the trial was conducted amounts to a substantial wrong or miscarriage of
    justice requiring a new trial.

THE CROSS-APPEAL

[28]

The
    respondents seek leave to appeal the decision of the trial judge regarding
    costs. We are satisfied that there is good reason to doubt the correctness of
    the decision regarding the costs as the trial judges decision on costs appears
    to be internally inconsistent. He concluded that the settlement offer made by
    the respondents on February 9, 2011, was more favourable to the appellant than
    the result achieved at trial. On this basis he held that the plaintiff is
    entitled to costs up to February 9, 2011, and the defendant is entitled to his
    costs thereafter.

[29]

The
    trial judge went on to award to the appellants first counsel fees fixed at
    $50,000 plus tax and $20,000 plus tax in disbursements. The trial judge awarded
    fees to the appellants second counsel for the period from November 10, 2009,
    to February 11, 2011, in the amount of $30,000 plus tax.  The respondents take
    no issue with these decisions by the trial judge.

[30]

Where
    the respondents take issue with the costs award is the trial judges decision
    to order payment of disbursements of $50,000 plus tax for the appellants
    counsel for the period from November 10, 2009 to February 11, 2011. The issue
    is that the appellants bill of costs for that period only claims disbursements
    of $7,069.65 plus tax. By the completion of trial the total disbursements
    incurred by the appellant were in excess of $50,000.

[31]

It
    is unclear from the reasons given by the trial judge whether he intended to
    differentiate between fees and disbursements and exercise his broad discretion
    to award disbursements for the period after the service of the settlement
    offer. Alternatively the award for disbursements may have been a typographical
    error. It does not appear to be consistent with his ruling that the appellant
    would be entitled to his costs for the period up to February 9, 2011, and that
    the respondents would be entitled to their costs thereafter.

[32]

The
    onus is on the appellant on the cross-appeal to prove an error by the trial
    judge. Given the state of the record before us we are unable to determine
    whether an error was made.  Accordingly, the appellant on the cross-appeal has
    not met his onus and the cross-appeal must be dismissed.

DISPOSITION

[33]

For
    the foregoing reasons, the appeal and cross-appeal are dismissed, with costs to
    the respondent fixed at $15,000, inclusive of disbursements and applicable
    taxes.

Released: November 1, 2013 JCM

J.C.
    MacPherson J.A.


E.E. Gillese J.A.


C.
    William Hourigan J.A.


