



COURT OF APPEAL FOR ONTARIO

CITATION:
Zurek v. Ferris, 2012
    ONCA 742

DATE: 20121105

DOCKET: C53999

Laskin, Blair and Epstein JJ.A.

BETWEEN

Deanna Zurek and Theodore Zurek-Dunne by his
    litigation guardian, Deanna Zurek

Plaintiffs (Appellants)

and

Jon Ferris and Enterprise Rent A Car Canada
    Limited

Defendants (Respondents)

Karl Arvai, for the appellants

James K. Brown and Greg Robson, for the respondents

Heard: October 3, 2012

On appeal from the judgment of Justice T. David Little of
    the Superior Court of Justice, sitting with a jury, dated June 8, 2011.

ENDORSEMENT

[1]

The appellant, Deanna Zurek, suffered soft tissue injuries to her neck
    and back, when her car was struck from behind by the respondents car.  The
    respondents admitted liability for Ms. Zureks injuries.  After a trial, a jury
    assessed her damages as follows:

·

General non-pecuniary damages: $40,000

·

Past loss of income: $40,000

·

Future loss of income: $0

·

Future care costs: $30,000

·

Loss of guidance, care and
    companionship
damages for Ms. Zureks son: $15,000

[2]

Ms. Zurek seeks to set aside the jurys verdict and asks this court to
    order a new trial.  The overriding issue on the appeal is whether the trial
    judges charge to the jury deprived Ms. Zurek of a fair trial  or, in the
    words of s. 134(6) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
    caused a substantial wrong or miscarriage of justice.

[3]

We acknowledge that the charge was, to use Mr. Arvais word,
    unorthodox.   Moreover, some of the trial judges comments were unnecessary
    and not germane to the issues the jury had to decide.

[4]

We are nonetheless satisfied that the charge as a whole was fair.  It
    presented to the jury in a balanced way and in ordinary language the issues the
    jurors had to resolve and the evidence bearing on those issues.

[5]

For example, the trial judge instructed the jury:

·

You try and be fair and use your common sense to compensate the
    plaintiff for the injuries she sustained, the hurt that she got as a result of
    the negligence because Ferris drove into the back of her car.

·

You dont have to find great big bumps and blood and cuts to
    have a real whiplash.

·

 [I]ts hard to determine whether its faking or whether its
    real or whether its embellished.  But Ill tell you something, she all of a
    sudden went for treatment after the accident  something happened.  Things
    changed, think about that.

·

Sit and pick a fair figure, using your common sense, that will
    properly compensate her for her lost future wages caused by [the] accident

·

 [S]hes entitled to be put right back in the position she was
    in before, as best we can, so she doesnt have to walk around with a neck brace
    and a cane, trying to wash dishes.  She doesnt have to do that, so were
    trying to put her back.

[6]

That few objections to the charge were raised at trial supports our
    conclusion that the charge as a whole was fair.

[7]

Ms. Zureks main, though not only, complaint with the jurys verdict was
    its decision not to compensate her for future income loss.  The evidence at
    trial, however, reasonably supported the jurys decision on this issue.

[8]

Before the accident, Ms. Zurek had  frequently switched jobs and had
    never earned more than a modest income.  By the time of the accident, her
    commitment to remaining involved in her business, Get-Around-Organics, was
    questionable.  Indeed, when the accident occurred, she was home-schooling her young
    son.  Then, about a year before the trial, she moved from London to the
    Bracebridge area where she spent the summer in a park and leased a cabin for
    the winter.

[9]

Ms. Zurek had the burden to establish on a balance of probabilities that
    the accident prevented her from earning an income similar to her pre-accident
    income.  It is apparent from the verdict that in the jurys opinion, she failed
    to do so.  We cannot say that this opinion was unreasonable.

[10]

Finally,
    we are not persuaded that the trial judge made any legal error in his charge. 
    He told the jury, [t]he lawyers have gone through the questions with you, the
    lawyers have even put the law to you and I think theyre right, generally.

[11]

The
    trial judges charge was not perfect.  But in the words of this court in
Brochu
    v. Pond
(2002), 62 O.R. (3d) 722, at para. 68 it got the job done.

[12]

Accordingly,
    the appeal is dismissed, with costs in the amount of $15,000, inclusive of
    disbursements and applicable taxes.

John Laskin J.A.

R.A. Blair J.A.

G.J. Epstein J.A.


