



COURT OF APPEAL FOR ONTARIO

CITATION: Hoang v. Vicentini, 2016 ONCA 723

DATE: 20161005

DOCKET: C55389

Laskin, Hourigan and Brown JJ.A.

BETWEEN

Christopher Hoang and Danielle Hoang, both minors
    by their Litigation Guardian, San Trieu, and San Trieu, personally

Plaintiffs (Appellants)

and

Adriano Vicentini, Ford Credit Canada Leasing
    Company and Can Hoang

Defendants (Respondents)

Geoffrey D.R. Adair and Gord McGuire, for the appellants

Kerri Kamra, for the respondent Can Hoang

David A. Zuber and Joshua Henderson, for the respondent
    Adriano Vicentini

S. Wayne Morris and Melissa Miles, for the respondent
    The Personal Insurance Company

Bruce R. Mitchell, for the respondent Ford Credit Canada
    Leasing Company

Heard: April 13, 2016

On appeal from the judgment of Justice Darla A. Wilson of
    the Superior Court of Justice, dated March 9, 2012.

Brown J.A.
:


I.

Overview

[1]

On August 6, 2004 the respondent, Can Hoang,
    drove his six-year old son, Christopher, one of the appellants, and three other
    children to downtown Toronto for a planned outing to Centre Island. Hoang let
    the children out of the car at the intersection of Yonge Street and Queens
    Quay Boulevard, across from the ferry terminal, before parking the car. As
    Christopher began to walk across Yonge Street, a few feet behind the other
    children, a gust of wind blew his hat off his head into the intersection.
    Christopher ran after his hat and into the intersection where he was struck by
    a vehicle driven by the respondent, Adriano Vicentini. Christopher suffered
    significant injuries.

[2]

Christopher brought an action against his
    father, Vicentini, and the respondent, Ford Credit Canada Leasing Company, the
    owner of the Vicentini vehicle. Christopher was joined in his action by his
    minor sister, Danielle Hoang, and his mother, San Trieu, both of whom asserted
    claims for loss of care, guidance and companionship pursuant to the provisions
    of the
Family
    Law Act
, R.S.O. 1990, c. F.3 (the 
FLA
).

[3]

Following a 38-day trial, the jury found that
    Hoang negligently caused the accident and his sons injuries. The jury assessed
    Christophers damages at $150,000 for non-pecuniary damages and $684,228.22 for
    future care costs. Christophers mother, the appellant San Trieu, was awarded
    damages under the
FLA
of $20,000; the
FLA
claim of Christophers sister, Danielle, was dismissed. As well, the action was
    dismissed as against Vicentini and Ford Credit.

[4]

The trial judge ordered the plaintiffs to pay
    partial indemnity costs to Vicentini fixed at $435,214.19 and to Ford Credit in
    the amount of $173,695.39. She also ordered Hoang to pay the plaintiffs their
    partial indemnity costs fixed at $899,750.

[5]

The plaintiffs appeal, asking this court to
    order a new trial on the issue of the liability of Vicentini and Ford Credit
    and increase the damages for future care costs to $1.1 million. The appellants
    also seek orders requiring The Personal Insurance Company (The Personal),
    Hoangs vehicle insurer, to pay the costs the trial judge awarded to them, Vicentini
    and Ford Credit.

[6]

Hoang abandoned his cross-appeal that sought
    to dismiss the action as against him.

[7]

The appellants advance six main grounds of
    appeal:

(i)

The trial judge erred in her rulings
    concerning the scope of evidence admissible on the issue of the operation of
    the brakes on Vicentinis vehicle;

(ii)

The trial judge erred in admitting certain
    evidence from human factors experts;

(iii)

The trial judge erred in failing to charge
    the jury on the issue of the operation of the brakes and leave that issue with
    the jury for its consideration;

(iv)

The trial judge erred in her instructions to
    the jury on the use they could make of a chart appellants trial counsel used
    on the issue of future care costs;

(v)

The trial judge erred in awarding costs
    against the minor plaintiff, in awarding separate costs to each of Vicentini
    and Ford Credit, and in refusing to grant a
Sanderson
Order; and,

(vi)

Trial counsel for Hoang, whom The Personal appointed,
    was in a position of conflict during the trial. That conflict might have
    contributed to the denial of Christophers right to a fair trial. The
    appropriate remedy is for this court to require The Personal to pay all costs
    awarded at trial to the various parties.
[1]

[8]

The appellants also brought a motion for
    leave to adduce fresh evidence consisting of an affidavit sworn by Hoang
    describing the history of his dealings with the defence counsel The Personal
    appointed, as well as with his personal counsel. No objection was taken to the
    court considering this evidence; indeed, Vicentini included Hoangs affidavit
    in his appeal book and compendium. Consequently, I would grant the motion to
    adduce fresh evidence, and I have taken into account the chronology of events
    described in the fresh evidence.

[9]

For the reasons set out below, I would
    dismiss the appeal on the issues of liability and damage. I would, however,
    allow the appeal on costs to the extent only of varying the judgment so that
    the amounts ordered payable by the minor appellants are payable by their
    litigation guardian, San Trieu, personally and in her capacity as litigation
    guardian.

II.

Issues concerning the condition of the Vicentini vehicles brakes

A.

Overview

[10]

At
    the time of the accident, Vicentini was travelling westbound on Queens Quay.
    He testified that when he was about three metres from the white stop line at
    the Yonge St./Queens Quay intersection, he suddenly saw a blue object blow
    into the intersection from the north side crosswalk. A second later, he saw a
    small boy running out from the crosswalk. Vicentini applied his brakes hard,
    but the right front corner of his car struck the boy, who disappeared under the
    car.

[11]

Shortly
    after the accident, Police Accident Reconstruction Specialist Detective De Los
    Rios arrived at the scene and conducted his investigation.

[12]

The
    police impounded Vicentinis vehicle. Three days after the accident a police
    automotive service technician, Sergio Grisolia, inspected it for mechanical
    fitness. As part of his inspection, Grisolia road tested the vehicle for brake
    performance.

[13]

Both
    De Los Rios and Grisolia were called to testify at trial. As well, Vicentini
    and the appellants called accident reconstruction litigation experts, Jamie
    Catania and James Hrycay.

[14]

The
    appellants submit the trial judge erred by:

(i)

refusing to allow Grisolia to comment on his
    findings about the cars brake function because his safety inspection report
    did not contain any opinion on brake functioning;

(ii)

allowing De Los Rios to opine the brakes
    operated properly at the time of the accident notwithstanding he was not
    qualified as an expert; and

(iii)

instructing the jury in her charge that the
    brakes had nothing to do with the accident notwithstanding the reverse onus on Vicentini
    and evidence of material defects in his vehicle.

B.

The admissibility of Grisolias evidence

The state of the evidence prior to trial

[15]

Grisolia completed portions of a Vehicle
    Mechanical Examination Request form (the Examination Form) recording the
    results of his inspection. On the form, he indicated that he found defects and
    he had road tested the car. Regarding the brakes, Grisolia recorded that both
    the friction material and mechanical components were unsatisfactory,
    commenting that front calipers sliders seized. Grisolia also noted that
    several elements of the brakes were satisfactory, including drums/discs and
    service brake performance.

[16]

In
    preparing his Collision Reconstruction Report, De Los Rios reviewed Grisolias
    Examination Form and commented:

The vehicle was found in satisfactory mechanical condition.
    Notwithstanding the satisfactory mechanical status, one item was identified as
    unsatisfactory, namely, front caliper slider seized. Even though the above
    mentioned component was seized the vehicle was able to brake as was evident at
    the collision scene by way of two distinct parallel tire marks

[17]

The
    appellants accident reconstruction expert, Hrycay, reviewed the De Los Rios
    Report and Grisolias Examination Form. Neither of the two expert reports
    Hrycay prepared suggested that the condition of the brakes on the Vicentini
    vehicle contributed to the collision. Instead, both reports focused on Vicentinis
    driver perception-reaction time. Hrycay expressed the opinion that had Vicentini
    applied his brakes at the maximum rate when he first saw Christophers hat, he
    could have avoided striking the boy.

[18]

During
    the course of trial preparation, appellants trial counsel (who was not counsel
    on this appeal) interviewed Grisolia and learned Grisolia had an opinion about the
    brakes on the Vicentini car. Shortly before trial, appellants trial counsel
    sent the other parties a synopsis of Grisolias anticipated evidence. It
    disclosed Grisolia would testify that when he took the Vicentini vehicle for a
    test drive, the brakes were spongy and he thought the seized brake calipers
    and unsatisfactory brake friction material would cause greater brake pedal
    travel, with a negative effect on the cars braking ability.

[19]

At
    the start of the trial, the appellants moved for leave to call more than three
    expert witnesses, including calling Grisolia to provide expert opinion
    evidence. The trial judge was informed about the existence of Grisolias will
    say, but she did not review a copy of it.

The trial judges ruling

[20]

The
    trial judge ruled that Grisolia could not give expert evidence: 2012 ONSC 1066.
    She noted, at para. 14:

The two page form that was completed identifies Mr. Grisolias
    findings but does not set out any opinion. Mr. Grisolia noted on the form that
    the front calipers sliders seized [unsatisfactory] and the friction material
    [unsatisfactory].  He does not describe the effects of the two items he deemed
    unsatisfactory nor does he comment on the function of the brakes themselves.

[21]

The trial
    judge then held, in part, at paras. 15 and 16:

The Rules of Civil Procedure have very specific provisions for
    the inclusion of expert testimony at trials and the 2010 amendments to the
    provisions governing expert reports provide for more stringent requirements
    before an expert is permitted to testify. No report from Mr. Grisolia that
    complies with Rule 53.03 has been tendered and there is no evidence before me
    of any attempts made by the solicitor for the Plaintiffs to secure an opinion
    from Mr. Grisolia on the brakes on the Viscentini car in a form of a report
    that complies with Rule 53.  There is nothing in the document that he completed
    in 2004 that sets out his opinion. What he has done is to examine the various
    items listed on the document and tick off the appropriate box to indicate
    whether the component met the Ministry standards or not.  I do not say this in
    a critical fashion; this is the document that Mr. Grisolia is required to fill
    out by the police when he inspects a vehicle that has been involved in a
    collision.  The document, however, is deficient in terms of providing the
    minimum information that is contemplated by Rule 53 for expert reports.  I have
    no information as to what qualifications Mr. Grisolia has, apart from the fact
    that he was employed by the police to do mechanical inspections of vehicles.  I
    do not know if he has the proper qualifications to even permit him to be
    qualified as an expert at trial.

In my view, on the basis of the document he completed on his
    inspection of the vehicle, I am not prepared to permit him to give expert
    testimony at this trial. To do so, in my opinion, would contravene the
    requirements of Rule 53 and would flout the reasoning giving rise to the
    amendments to the Rules governing expert evidence.  The fact that the solicitor
    for the Plaintiff has provided a synopsis of his expected testimony does not,
    in my mind, get around the problems with Mr. Grisolia offering an expert
    opinion to this Court

Grisolias evidence at trial

[22]

At
    trial, Grisolia testified about the inspection he had conducted of the Vicentini
    vehicle. He stated he saw the lining of the brake pads was very, very low,
    which caused him to record the friction material pads as unsatisfactory.
    Grisolia was permitted to testify that he took the car on a road test, but he
    was not allowed to give the details of the test, other than as recorded on the
    Examination Form. Grisolia confirmed that his notation that service brake
    performance was satisfactory referred to the regular brake pedal used when
    driving.

Positions of the parties

[23]

The
    trial judge ruled on the scope of Grisolias evidence before the decision of
    this court in
Westerhof v. Gee Estate
, 2015 ONCA 206. The
    appellants submit the trial judge erred in holding Grisolia could not opine on
    the vehicles brake functioning in the absence of a report that complied with r.
    53.03 of the
Rules of Civil Procedure
. The appellants
    contend Grisolia was not a litigation expert, within the meaning of the
Westerhof
decision, so he could give an opinion in the absence of a r. 53.03-compliant
    report.

[24]

Vicentini
    submits the trial judges ruling was consistent with the principles set out in
Westerhof
and the trial judge properly discharged her role as gatekeeper regarding the
    admissibility of opinion evidence.

[25]

Ford
    Credit, as the owner of the Vicentini vehicle, supports Vicentinis position on
    this issue and the other issues regarding liability.

Analysis

[26]

In
Westerhoff
,
    this court held that the requirements of r. 53.03 apply to litigation experts
     experts engaged by a party to provide opinion evidence  but not to
    participant experts or non-party experts: at para. 14. Participant experts
    form opinions based on their participation in the underlying events.

[27]

The
    appellants submit the trial judge erred in holding that Grisolia was required
    to comply with r. 53.03 in order to give opinion evidence; they argue Grisolia
    was a participant expert who was not required to deliver a r. 53.03 report. I
    do not accept this submission. While the trial judge did not have the benefit
    of this courts decision in
Westerhoff
, her ruling complied with
    the principles set out in that case.

[28]

Grisolia
    was a participant expert, as described by this court in
Westerhoff
.
    As a general rule, a participant expert with special skill, knowledge,
    training, or experience may give opinion evidence without complying with r.
    53.03 where (i) the opinion to be given is based on the witnesss observation
    of or participation in the events at issue and (ii) the witness formed the
    opinion as part of the ordinary exercise of his or her skill, knowledge,
    training, and experience while observing or participating in such events: at
    para. 60. However, if a participant expert proffers opinion evidence extending
    beyond those limits, he or she must comply with r. 53.03 with respect to the
    portion of the opinion extending beyond those limits: at para. 60.

[29]

In
Westeroff
,
    this court explained that one reason r. 53.03 does not apply to participant
    experts is that disclosure problems generally do not exist in relation to their
    opinions: at para. 85. However, where disclosure problems do exist, including
    the disclosure of the proffered opinion of a participant expert only on the eve
    of trial, the trial judge has the discretion to exclude the last-minute opinion
    evidence: at para. 90.

[30]

In
    the present case, the appellants sought to adduce at trial an opinion from
    Grisolia that went beyond his observations and comments recorded on the Examination
    Form. As well, the appellants only disclosed the opinion on the eve of trial,
    notwithstanding that the parties had possessed the Examination Form for several
    years. In those circumstances, I see no error in the trial judges refusal to
    permit Grisolia to give opinion evidence about brake performance that was not
    contained in his Examination Form.

[31]

Moreover,
    as this court emphasized in
Westerhoff
, a trial judge retains her
    gatekeeper function in relation to opinion evidence from participant experts
    and non-party experts: para. 64; see also
R. v. J.-L.J.
,
    2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28. If the proffered opinion
    evidence does not meet the test for admissibility  including demonstrating the
    expert possesses special skill, knowledge, training, or experience  it is open
    to the trial judge to exclude part of the opinion evidence of a participant
    expert:
Westerhoff,
at para. 64.

[32]

The
    trial judges ruling makes clear that, as the gatekeeper of expert opinion
    evidence, she had two concerns beyond the lack of a r. 53.03 report. First, the
    appellants had not provided evidence that would enable her to ascertain whether
    Grisolia possessed the qualifications necessary to give opinion evidence.  The
    trial judge voiced that concern in her ruling. As well, during Grisolias
    examination-in-chief, the trial judge said to appellants trial counsel that
    she did not know whether Grisolia was a qualified mechanic. In response,
    appellants trial counsel stated he was not qualifying Grisolia as an expert.

[33]

Second,
    she concluded, at para. 16 of her reasons, that admitting opinion evidence
    disclosed to the opposite parties only after the jury had been selected would
    result in unfairness to the respondents, but its exclusion would not work any unfairness
    on the appellants:

[N]o unfairness to the Plaintiffs will result as a consequence
    of my ruling.  Counsel has retained an engineer who has delivered a report that
    complies with Rule 53 and he, presumably, will testify on the liability issues.
    On the other hand, to permit Mr. Grisolia to testify at this trial and to
    provide his opinion on the function of the brakes on the Vicentini vehicle at
    the time of the collision would be manifestly unfair to the defendants
    Vicentini and Ford Credit when the performance of the brakes has not been an
    issue in this lawsuit and no expert has opined on this to date.

[34]

Those
    were both legitimate factors for the trial judge to take into account in
    exercising her discretion as the gatekeeper of expert opinion evidence.

[35]

The
    appellants submit the trial judge erred in concluding unfairness would result
    to the respondents if the opinion evidence was admitted because the issue of
    brake performance did not come as a surprise to anyone. They point to their
    Amended Statement of Claim where they pleaded Vicentini failed to have his
    brakes in proper working order. I would not accept this submission for two
    reasons. First, the pleading of particulars of negligence in motor vehicle
    accident cases tends to have a boiler-plate character. The more useful
    indicator of a plaintiffs theory of liability usually is found in the expert
    reports. As described above, in the present case the appellants expert
    reviewed Grisolias vehicle Examination Form in preparing his report, but did
    not advance any opinion of liability based upon the unsatisfactory performance
    of the brakes.

[36]

Second,
    the appellants characterize Grisolias anticipated evidence concerning brake
    pedal travel as factual, and not a matter of opinion. However it was
    reasonable for the trial judge to conclude that the proposed evidence on pedal
    travel sounds like opinion evidence because Grisolias will say expressed
    the view that seized calipers and unsatisfactory brake performance would also
    cause greater brake pedal travel. As well, Grisolias proposed opinion
    evidence stood opposed to his notation on the vehicle examination form that
    service brake performance was satisfactory.

[37]

Finally,
    the appellants submit that the trial judge erred in excluding Grisolias
    opinion evidence because in this case the onus of proof that the injury did not
    arise through the negligence of the driver rested on Vicentini:
Highway Traffic Act
,
    R.S.O. 1990, c. H.8 (the 
HTA
), s. 193(1). I disagree. While
    s. 193(1) of the
HTA
places the ultimate burden
    of proof on the issue of negligence in a case such as the present one on the
    driver, it does not alter the obligation of the appellants to satisfy the trial
    judge that any opinion evidence they seek to adduce meets the criteria of
    admissibility.

[38]

Accordingly,
    I see no basis upon which to interfere with the trial judges decision to
    exclude the opinion evidence the appellants sought to adduce from Grisolia.

C.

The brake issue evidence given by De Los Rios

[39]

De
    Los Rios prepared a Collision Construction Report that all parties obtained
    several years prior to trial. Vicentini ultimately called De Los Rios at trial,
    and a Form 53  Acknowledgement of Experts Duty  was served in respect of his
    evidence.

[40]

At
    trial, Vicentini tendered De Los Rios to give evidence as an expert accident
    reconstructionist. The appellants did not object to the witnesss
    qualifications, and De Los Rios was qualified to offer an opinion in the area
    of accident reconstruction.

[41]

The
    appellants submit the trial judge erred in admitting opinion evidence elicited
    from De Los Rios in two parts of his testimony. First, in his
    examination-in-chief, De Los Rios explained the use he made of Grisolias Examination
    Form:

Q:  And we understand that there were two items that were
    found to be unsatisfactory on that form.

A: I have one item was identified as unsatisfactory.

Q: All right. But what was your opinion in relation to whether
     in doing your accident reconstruction you made a comment in your report.

A: Notwithstanding his finding I was able to still relate to
    the fact that those wheels locked and I had skid marks on the scene as a result
    of that car braking and slamming on the brakes.

[42]

Second,
    at a later point in his examination-in-chief, De Los Rios offered his opinion
    that the accident was preventable had Christopher remained in the crosswalk. He
    stated Vicentini could not have avoided the accident.

[43]

I
    would not accept the appellants submission for three reasons. First, the
    evidence De Los Rios gave in-chief tracked that set out in sections 12, 30 and
    31 of his Report; he did not stray beyond the statements made in his Report.

[44]

Second, appellants trial counsel did not
suggest
    in his cross-examination of De Los Rios that he was not qualified to give those
    opinions.

[45]

Finally, appellants trial counsel did not
    object either to those portions of De Los Rios evidence-in-chief or to the
    related portions of his report. It is well-established
that if no objection is made to the admissibility of
    evidence in a civil trial, an objection on appeal will usually be unsuccessful:
Marshall v. Watson Wyatt
    & Co.
(2002), 57 O.R. (3d) 813 (C.A.),
at para. 15.


D.

Charge to the jury on the brake issue

[46]

The
    appellants submit the trial judge made two errors in her jury charge on the
    brake issue.

Reference to the evidence of De Los Rios

[47]

First,
    the appellants argue that the trial judge erred in emphasizing and repeating in
    her charge the evidence of De Los Rios referred to in paras. 38 and 39 above.
    Specifically, they submit she erred in stating: [De Los Rios] noted Vicentini
    was travelling 32 kilometres an hour and his brakes operated properly because
    he left skid marks on the road which indicates that the wheels locked.

[48]

I
    would not accept this submission. T
he
trial judge accurately summarized the evidence of De Los Rios in her
    charge. Further, appellants trial counsel did not object to this portion of
    the charge. A
n objection to the
    charge to the jury in a civil case will generally be unsuccessful if raised for
    the first time on appeal, and this court will relieve against the failure to
    object only if the interests of justice require it:
Marshall
,
at para. 15.
I
    would also note that appellants trial counsel, at the conclusion of counsels
    submissions on the charge, commended the trial judge for a very considered
    charge.

Removing from the jury the brake defect
    issue

[49]

In
    her charge to the jury, the trial judge addressed the issue of the brakes on
    the Vicentini car. She stated, in part:

This morning in his closing address to you [plaintiffs
    counsel] told you that you should consider the brakes in determining whether or
    not Mr. Vicentini was careful. This was an incorrect statement as to what you
    as jurors ought to consider and I instruct you to disregard it. I direct that
    you cannot find on the evidence that the brakes played any role in the
    collision with Christopher.

[50]

The
    appellants submit the trial judge erred in instructing the jury to disregard
    the brakes because (i) [i]t is a matter of common sense that in a case of this
    nature completely worn brake linings might create an issue with brake function
    and (ii) such an instruction ignored the reverse onus placed on Vicentini and
    Ford Credit by s. 193(1) of the
HTA
.

[51]

I
    would not accept this submission for several reasons. First, it is inconsistent
    with the position ultimately taken by appellants counsel at trial. To
    understand the position ultimately taken by trial counsel, some background
    information is necessary.

[52]

During
    his closing to the jury, appellants trial counsel stated: Her Honour will
    likely instruct you that there is no evidence before this court that the brakes
    caused the accident or there is anything about the brakes that caused the
    accident  but I want you to consider the brakes in the context of
    carefulness. Counsel then referred to some of the component deficiencies
    identified on the Grisolia Examination Form and concluded: [t]hats something
    youre going to have to consider as to how careful he was.

[53]

That
    submission prompted Vicentinis counsel to object on the ground there was no
    evidence the condition of the brakes had contributed to the accident. He asked the
    trial judge to give the jury a correcting instruction upon their return.

[54]

Appellants
    trial counsel submitted there was no need to say anything to the jury on the
    matter. He then continued:

In the alternative, that Her Honour wishes to address the issue
    with the jury and, specifically, the comment that, frankly, is in tune with my
    own theory and expression in this case, Your Honour, is that the brakes have
    nothing to do with causing this accident[I]f it is found that there wasnt a
    proper reference then the comment from Your Honour to the jury that there is no
    evidence that the condition of the brakes is causative, contributed to this
    accident, is something not only Im not fond of but is something Ive echoed
    myself.

This isnt a cloak attempt, Your Honour. If thats the
    suggestion by my friends, this is not a cloak attempt. This is an attempt to
    draw due deference to your own rulings on this subject, made patently clear to
    me on several occasions. [Emphasis added].

[55]

Accordingly,
    the trial judges direction to the jury was consistent with the ultimate
    submission made by appellants trial counsel  there was no evidence the brakes
    played any role in the collision with Christopher.

[56]

Second,
    the trial judges direction accurately and fairly summarized the evidence
    admitted on the brakes issue.

[57]

Finally,
    the trial judges direction was not inconsistent with the reverse onus placed
    on the respondents, Vicentini and Ford Credit, by s. 193(1) of the
HTA.
The appellants take no issue with the trial judges charge on the reverse onus
     it accurately instructed the jury about the onus s. 193(1) placed on the
    respondents, Vicentini and Ford Credit. Given that, it was open to the trial
    judge to instruct the jury on what admissible evidence was before them that
    they could take into account when considering whether the respondents,
    Vicentini and Ford Credit, had discharged the reverse onus they bore. By so
    doing, the trial judge did not deprive the appellants of the benefit of that
    statutory presumption. In light of the state of the evidentiary record at
    trial, the trial judges direction was proper in the circumstances. I see no
    error.

III.

OPINION Evidence On the ultimate issue

A.

Statement
    of the issue

[58]

At
    trial, Vicentini called Dr. Marc Green as a human factors expert who gave
    opinion evidence on Vicentinis perception-reaction time  i.e., how long it
    would take Vicentini to perceive Christopher as a hazard and react to the
    hazard by braking or steering. The appellants did not oppose Greens qualification
    as an expert entitled to express an opinion in the area of human factors.

[59]

On
    this appeal, the appellants submit the trial judge erred by permitting
    Vicentini to lead evidence from Green that (i) the cause of the accident was
    Christopher darting out into traffic, and (ii) Vicentini had no chance to avoid
    the collision. The appellants argue such opinion evidence went beyond the area
    in which Green was qualified to testify and, as well, amounted to impermissible
    opinions on the ultimate issue the jury was required to decide.

[60]

Vicentini
    submits the trial judge made no error because (i) the appellants had elicited
    similar evidence from their own accident reconstruction expert, Hrycay, and
    (ii) appellants trial counsel raised no objection to Greens evidence.

B.

Analysis

[61]

I
    would accept Vicentinis submissions.

[62]

First,
    there is no longer a general rule barring opinion evidence on the ultimate
    issue. Instead, a court should apply the criteria of necessity and the
    cost-benefit-analysis more strictly on evidence dealing with the ultimate
    issue: Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst,
Sopinka, Lederman &
    Bryant- The Law of Evidence in Canada,
Fourth
    Edition (Toronto: LexisNexis, 2014),
§
12.152. In the present case, both the appellants and Vicentini adduced expert
    evidence on the issue of the cause of the accident. The appellants led evidence
    from Hrycay as to whether Vicentini could have avoided the collision, the same
    issue they now contend the trial judge should not have allowed Green to
    address. The appellants position is inconsistent and, therefore, not tenable.

[63]

Second,
    an appellant cannot ask for a new civil trial as of right on the ground of the inadmissibility
    of evidence when no objection was made in respect of the matter at trial and no
    substantial wrong or miscarriage was occasioned:
G.K. v. D.K.
(1999), 122 O.A.C. 36 (C.A.), at para. 17. In the present case, the appellants
    did not object at trial to the evidence from Green they now contend was
    inadmissible and, as noted, they elicited from their own expert evidence about
    whether the accident was avoidable. Moreover, in her charge to the jury, the
    trial judge summarized the competing opinions of Green and Hrycay on the cause
    of the accident, and her reference to that evidence did not prompt an objection
    by appellants trial counsel. The trial judge also properly instructed the jury
    on the use they could make of the expert evidence. Accordingly, in those
    circumstances, I would not give effect to this ground of appeal.

IV.

WHETHER HOANGS APPOINTED DEFENCE COUNSEL WAS IN A CONFLICT OF INTEREST

A.

Statement
    of the issue

[64]

The
    appellants seek a new trial on liability as against Vicentini and Ford Credit
    on the ground that the counsel Hoangs insurer, The Personal, appointed to
    defend the action was in a conflict of interest position. The appellants argue
    that a conflict arose because the insurer had reserved its rights regarding coverage
    under the policy.

B.

Background
    facts

[65]

Hoang
    carried an automobile insurance policy issued by The Personal. The appellants
    July, 2006 Statement of Claim contained allegations of negligence relating to
    the use and operation of a motor vehicle, as well as claims related to Hoangs
    failure to supervise his son immediately after dropping him off.

[66]

Upon
    receipt of the Statement of Claim, The Personal acknowledged its duty to defend
    the action on behalf of Hoang. However, The Personal had Hoang sign a non-waiver
    agreement under which The Personal did not waive its rights under the policy.

[67]

The
    Personal retained experienced counsel to defend Hoang in the action. The
    Personal retained separate coverage counsel in November, 2008.

[68]

The
    following month, appellants trial counsel advised Ms. Trieu that her husband
    should go to an independent lawyer because the claim against him exceeded his
    policy limits. Hoang thereupon retained his own counsel, who was experienced in
    motor vehicle insurance litigation, to look after my interests in this matter.
    His personal counsel was aware of the non-waiver agreement with The Personal as
    early as December, 2008.

[69]

In
    November, 2009 Hoangs personal counsel took the position with Hoangs appointed
    counsel that The Personal had failed to take all reasonable steps to protect
    Hoangs interests, resulting in prejudice to him. Notwithstanding this
    position, Hoang took no steps to remove appointed counsel or obtain a
    declaration that The Personal was required to pay for the counsel of his
    choice. A July 5, 2010 letter from Hoangs personal counsel to The Personal and
    Hoangs appointed counsel suggests Hoang may not have done so in order to
    support an argument that The Personal, by appointing defence counsel, had
    confirmed coverage under the policy:

The Personal could not have any right to continue to defend Mr.
    Hoang, even under a non-waiver agreement, except by virtue of a subsisting
    policy of insurance. The Personal, having elected to treat the contract as
    still existing, cannot now take the position Mr. Hoang is not entitled to
    indemnity under the policy.

[70]

A
    little over a month before the start of the trial in January, 2012, Hoangs
    personal counsel wrote to his appointed counsel advising that he intended to be
    involved in both trial preparation and the trial, including making suggestions
    about lines of questioning for witnesses and the content of closing
    submissions. A few days before trial, Hoangs personal counsel advised his
    appointed counsel that he would not be in attendance at the trial as you have
    carriage of the defence of this action on behalf of Can Hoang. Hoangs
    personal counsel did participate in the meeting to prepare Hoang for his
    testimony at trial.

[71]

The
    case proceeded to trial in January, 2012. The jury found that Hoangs
    negligence contributed to the accident.

[72]

At
    trial, the appellants did not take the position with the trial judge that
    Hoangs representation by counsel appointed by The Personal, which was
    disputing coverage, created a conflict of interest.

C.

The
    governing principles of law

[73]

The
Insurance
    Act
states that every motor vehicle liability
    policy issued in Ontario shall provide that the insured appoints the insurer as
    its attorney to defend any action against the insured arising out of the
    ownership, use or operation of the automobile:
Insurance Act
,
    R.S.O. 1990, c. I.8, s. 252(1)(c). Section 3.3.1 of the standard Ontario
    Automobile Policy in force at the time of the accident incorporated this
    statutory right of the insurer. However, the right of an insurer to control the
    defence of any claim is not absolute:
Brockton (Municipality) v. Frank
    Cowan Co.
(2002), 57 O.R. (3d) 447 (C.A.), at para.
    32. If a sufficient degree of divergence exists between the interests of the
    insurer and the insured, the insurer can be required to surrender control of
    the defence and pay for counsel retained by the insured.

[74]

In
Brockton
,
    this court described the degree of divergence that must exist before a court
    can require an insurer to surrender control of the defence. Rejecting the
    concept of appearance of impropriety as a basis for depriving an insurer of
    its contractual right to control the defence, this court instead adopted, at
    para. 43, the concept of conflict of interest:

The balance is between the insured's right to a full and fair
    defence of the civil action against it and the insurer's right to control that
    defence because of its potential ultimate obligation to indemnify. In my view,
    that balance is appropriately struck by requiring that there be, in the
    circumstances of the particular case, a reasonable apprehension of conflict of
    interest on the part of counsel appointed by the insurer before the insured is
    entitled to independent counsel at the insurer's expense. The question is
    whether counsel's mandate from the insurer can reasonably be said to conflict
    with his mandate to defend the insured in the civil action. Until that point is
    reached, the insured's right to a defence and the insurer's right to control
    that defence can satisfactorily co-exist.

[75]

The
    potential tension between insurer and insured which is manifested by a
    reservation of rights by the insurer is not, in itself, sufficient to require
    the insurer to surrender control of the defence:
Brockton,
citing
Zurich
    of Canada v. Renaud & Jacob,
[1996] R.J.Q. 2160
    (C.A.). Whether a conflict exists turns, in part, on the reason why an insurer
    reserves its rights. In
Brockton
this court, at para. 42,
    adopted the following analysis from the
Zurich
case:

If the reservation of rights arises because of coverage
    questions which depend upon an aspect of the insured's own conduct that is in
    issue in the underlying litigation, a conflict exists. On the other hand, where
    the reservation of rights is based on coverage disputes which have nothing to
    do with the issues being litigated in the underlying action, there is no conflict
    of interest requiring independent counsel paid for by the insurer.

[76]

Generally,
    an insured should take prompt action when it thinks appointed counsel has a
    conflict of interest. Where an insured is of the view that a sufficient
    divergence of interests with its insurer exists to justify the insurer paying
    for counsel retained by the insured, the insured generally moves before the
    court for declaratory relief to that effect at the early stages of the defence
    of the action. See, for example:
Brockton
, at para. 20;
Appin Realty Corp. v.
    Economical Mutual Insurance Co.
, 2008 ONCA 95, 89
    O.R. (3d) 654, at paras. 9 and 10.

D.

Analysis

[77]

The
    appellants do not suggest counsel for Hoang appointed by The Personal preferred
    the interests of the insurer to those of his client. They submit, however, that
    the mere existence of such a conflict brings the administration of justice
    into disrepute, as a result of which a new trial should be directed on the
    issue of the liability of Vicentini and Ford Credit only. Hoang joins them in
    requesting this relief.

[78]

I
    would not accept this submission for two reasons.

[79]

The
    first concerns the timing of the appellants complaint about a possible conflict
    of interest between Hoang and his insurer. There is no dispute that several
    years before the 2012 trial, the parties knew that Hoangs insurer was taking
    an off-coverage position in respect of the accident. As the trial judge stated in
    her costs endorsement, 2014 ONSC 5893, at paras. 24 and 31:

I wish to note at the outset that it is and was no secret that
    the automobile insurer for Hoang, The Personal, took the position by June 2009
    that there was no coverage afforded to Hoang for this accident on the basis
    that the incident giving rise to the damages did not arise out of the use or
    operation of an automobile...

One wonders why the solicitors for the Plaintiffs failed to
    address this issue [of coverage] earlier in the litigation, given its
    importance to the action for Christophers damages. The position of the insurer
    was known to counsel for the Plaintiffs since at least 2009; it was not a new
    development that occurred during the course of this trial.

[80]

As
    well, in December, 2008, Hoang had retained personal counsel, who was
    experienced in motor vehicle insurance litigation, to advise him on the
    accident litigation.

[81]

Nevertheless, 
    Hoang did not move, either before or at trial, for a declaration that counsel
    appointed by The Personal stood in a conflict of interest position
    necessitating his representation by counsel of his choice, paid for by The
    Personal. Nor did the appellants bring such a motion. They only raised the
    issue after the jury verdict and on this appeal.

[82]

In
    my view, where a party forms the view that the divergence of interests between
    the insurer and its insured is such that the insureds representation by
    counsel appointed by the insurer might prejudice the fairness of a trial, the
    party is obliged to seek appropriate relief promptly from the court, certainly
    well before trial. Consequently, the appellants lengthy delay in raising the
    issue weighs heavily against their submission.

[83]

Second,
    the appellants concede that counsel The Personal appointed for Hoang did not
    prefer the interests of the insurer to those of his client. Indeed, the trial
    record discloses that Hoangs appointed trial counsel advanced a full defence
    on his behalf on all issues pleaded against Hoang  both those involving the
    off-loading of the children and the parental supervision claims. On the issue
    of liability, Hoangs trial counsel submitted to the jury that the accident was
    unavoidable  a child darted unexpectedly in front of Vicentinis car. The
    trial record shows that the coverage dispute between the insured and insurer
    did not affect the comprehensiveness of the defence advanced on behalf of the
    insured.

[84]

The
    appellants submit, however, that one aspect of how Hoangs defence was conducted
    at trial brought the administration of justice into disrepute. Hoang took the
    position that Vicentini was not liable for the accident. In their factum, the
    appellants argue:

Here you had a situation where it would appear to the jury that
    Can Hoangs own lawyer was telling the jury that the striking driver was not at
    fault for the devastating injuries to his son. This could be expected to have a
    dramatic impact on the juryNo party should have to face an undisclosed
    situation in the courtroom (the existence of a conflict) that might explain and
    shed light on the motives of another party in advancing certain positions. Here
    the infant plaintiff was subject to just that.

[85]

I
    do not agree with that submission. In the present case, both Hoang and
    Vicentini adopted a trial strategy in which they did not blame the other for
    the accident. Instead, they took the position that the accident was unavoidable
    because Christopher unexpectedly darted into the traffic to retrieve his hat.
    In appropriate circumstances, not blaming the other defendant can operate as a
    sound litigation strategy. It may assist in providing a united front on
    limiting damages, avoid alienating the jury, and reduce the likelihood of a
Sanderson
or
Bullock
award. On the state of the evidence in this case, unavoidable accident was a
    legitimate defence open to Hoangs trial counsel to advance. Advancing that
    defence, in the circumstances of this case, could not bring the administration
    of justice into disrepute.

[86]

Consequently,
    I would not give effect to this ground of appeal.


V.

Future Care Costs

[87]

In
    their factum, the appellants argued the trial judge should not have given a
    correcting instruction to the jury about the use appellants trial counsel made
    of a chart on future care costs during closing submissions.

[88]

At
    the hearing of the appeal, appellants counsel indicated his clients were not
    pursuing the issue of the quantum of future care costs. Consequently, there is
    no need to deal with this issue.

VI.

TRIAL Costs

[89]

The
    appellants submit the trial judge made three errors in ordering them to pay
    costs to Vicentini and Ford Credit: (i) costs should not have been awarded
    against the minor plaintiffs/appellants; (ii) separate costs should not have
    been awarded to Vicentini and Ford Credit; and (iii) the trial judge failed to
    give due weight to the ability to pay principle when she declined to make a
Sanderson
Order. The appellants also argue that The Personal should pay the costs the
    trial judge awarded to the various parties as a result of improperly appointing
    conflicted defence counsel.

A.

The
    cost award against the minor plaintiffs

[90]

The
    trial judge required all plaintiffs to pay the costs awarded to Vicentini and
    Ford Credit. The appellants submit the award of costs against the minor
    plaintiffs went against the general practice of limiting cost awards against
    parties under disability to their litigation guardians.

[91]

In
    support of their position, the appellants rely on
Asselin-Normand v. King Edward Realty
,
    2015 ONSC 2876, [2015] O.J. No. 2771. In that case, at para. 27, Stinson J.
    stated that while nothing in the
Rules of Civil Procedure
explicitly
    prohibits the court from exercising its broad discretion to award costs against
    parties under disabilitythecases reveal an established practice of not
    awarding costs against parties under disability personally. As Stinson J.
    pointed out, r. 57.06(2) enables a litigation guardian who has been ordered to
    pay costs to recover them from the person under disability for whom she has
    acted, unless the court orders otherwise.

[92]

Vicentini
    and Ford Credit do not object to varying the Judgment to exclude the minor
    appellants from the award of costs made in their favour. Accordingly, I would
    vary paras. 7 and 8 of the Judgment so that the costs awarded are payable only
    by Ms. Trieu, personally and in her capacity as litigation guardian for the
    minor plaintiffs.

B.

The
    separate costs awarded to Ford Credit

[93]

The
    trial judge ordered separate costs in favour of Vicentini ($435,214.19) and
    Ford Credit ($173,695.39). In her cost reasons, at para. 44, the trial judge
    concluded that the hours claimed by Ford Credits counsel were reasonable
    because he batted clean-up: his client 
was
    not the target defendant in the sense that as owner of the vehicle operated
    by Vicentini, his success or failure turned on the findings made by the jury
    concerning Vicentini.


[94]

The
    appellants submit the trial judge erred in making separate cost awards because
    both Ford Credit and Vicentini had exactly the same interests and their
    independent representation was unnecessary.

[95]


It is unclear on the record before us whether
    the appellants advanced this position in their cost submissions to the trial
    judge. According to the trial judges cost reasons, the appellants primary
    position below was that any costs awarded in favour of the successful
    respondents should be paid for by Hoang, either directly pursuant to a
Sanderson
order, or indirectly by way of indemnification of the appellants under a
Bullock
order.

[96]

In
    any event, whether it is appropriate to award more than one set of costs to
    successful parties is a matter within the discretion of the trial judge and
    turns, in part, on the reasonableness of separate representation for parties
    with the same or similar interests: r. 57.01(1)(h)(ii). In the present case,
    the coverage limits available under the separate policies held by Vicentini and
    Ford Credit differed: $1 million in the case of Vicentini
s
    automobile insurance policy; a US $10 million deductible in the case of Ford
    Credits policy.

[97]

At
    the opening of the trial, the appellants moved to amend their prayer for relief
    from $5.5 million to $15 million. The amendment sought would put the claim over
    the deductible of Ford Credits policy. Ultimately, counsel agreed on an
    amendment of the claim to $10 million  the deductible limits of Ford Credit 
    so that an adjournment of the trial was not required: 2014 ONSC 5893, at para.
    52.


[98]

In
    light of the amount of the appellants claims and the different policy limits
    available to the successful respondents, I would accept the submission of Ford
    Credit that its interests in the action were distinct from those of Vicentini,
    making it reasonable for Ford Credit to have separate representation. Ford
    Credit and Vicentini co-operated in the presentation of their defences to avoid
    unnecessary duplication, as recognized by the trial judge in her cost award. In
    those circumstances, I see no error in the trial judges exercise of her
    discretion to award separate costs to Ford Credit and Vicentini.

C.

The
    denial of a
Sanderson
Order

[99]

At
    trial, the appellants sought a
Sanderson
order requiring Hoang to pay the costs of the successful defendants, Vicentini
    and Ford Credit. The trial judge declined to make such an order. The appellants
    submit that she erred in so doing because she failed to give due weight to the
    ability to pay principle in considering a
Sanderson
order. Hoang supports the appellants position on this issue.

[100]

I
    would not accept the appellants submission. The trial judge correctly
    identified the principles governing the making of a
Sanderson
order. She expressly considered the ability to pay factor described by this
    court in
Moore
    v. Wienecke
, 2008 ONCA 162, 90 O.R. (3d) 463.
    Specifically, the trial judge stated, at para. 107:

I turn to the final factor, the ability to pay costs. The
    solicitor for the Plaintiffs argues that the litigation guardian, the mother of
    the infant Plaintiff, does not have the financial means to pay costs given her
    assets and income from employment. It is submitted that while Mr. Hoang is of
    the same modest financial means, he has a real prospect of success in his
    pending insurance coverage action which will render him able to pay the
    judgment and costs. As I have indicated earlier in these reasons, I cannot
    predetermine the outcome of the coverage action and thus, I cannot accept this
    submission from counsel for the Plaintiffs.

[101]

That
    was a reasonable conclusion for the trial judge to reach on the ability to
    pay factor. She made no error; there is no basis for appellate intervention.
    On the contrary, earlier in her cost endorsement, at para. 55, the trial judge
    accurately described the risks assumed by appellants counsel in proceeding
    with the trial in the face of an unresolved coverage issue:

Given that the position of the insurer may prevail and that the
    coverage issue continues to be unresolved, the solicitor for the Plaintiffs
    ought to have carefully considered the risks inherent in proceeding through a
    lengthy trial on all of the issues with the uncertainty of result in terms of
    amount of damages, payment of a judgment and the financial ramifications on the
    Hoang family.

The liability of The Personal to pay costs

[102]

The
    appellants advance two reasons why The Personal should be required to pay the
    costs awarded to them, Vicentini and Ford Credit.

[103]

First,
    the appellants repeat their argument that The Personal acted improperly by appointing
    conflicted defence counsel for Hoang and, as a result, it would be in the
    public interest to order The Personal to pay all costs awarded. Since I did not
    accept the appellants submission that the representation of Hoang by counsel
    appointed by The Personal resulted in an unfair trial, I would not accept their
    similar submission in respect of the responsibility for payment of costs.

[104]

Second,
    the appellants submit the terms of the policy of automobile insurance issued by
    The Personal require it to pay any costs awarded against its insured
    irrespective of the issue of coverage. As mentioned, a variant of this argument
    was advanced before the trial judge to support the making of a
Sanderson
Order. The trial judge declined to consider the argument in light of the on-going
    coverage litigation between Hoang and The Personal before the courts. For the
    same reason, it would not be appropriate for this court to consider the issue.

[105]

Consequently,
    I would not give effect to this ground of appeal.


VII.

DISPOSITION

[106]

By
    way of summary, I would grant the motion for leave to file fresh evidence. I
    would dismiss the appeal, save to the extent of varying paras. 7 and 8 of the
    Judgment so that the costs awarded in favour of Vicentini and Ford Credit are
    payable by San Trieu, personally and in her capacity as litigation guardians
    for the minor appellants, Christopher Hoang and Danielle Hoang.

[107]

I
    would encourage the parties to settle the costs of the appeal. If they cannot,
    Vicentini, Ford Credit and The Personal may file to the attention of the panel
    brief written cost submissions no later than October 17, 2016, and brief
    responding cost submissions shall be filed no later than October 28, 2016.

Released: October 5, 2016 (JL)

David Brown J.A.

I agree John Laskin J.A.

I agree C.W. Hourigan J.A.





[1]
The Personal Insurance Company was added as a respondent to this appeal by the
    order of Laskin J.A. dated November 16, 2015.


