





CITATION: Nicholson v. Whan, 2011 ONCA 28



DATE: 20110114



DOCKET: C51393



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O., Simmons and Watt JJ.A.



BETWEEN



Derek Nicholson, Emma Nicholson, Amanda Nicholson,
          Haley Nicholson and Talia Nicholson by their Litigation Guardian, Derek
          Nicholson, Michael Nicholson, Moira Nicholson and Brian Forsyth



Plaintiffs (Appellants)



And



Beverly Ann Whan, Elaine Marilyn Steele and Shabian
          Equestrian Centre



Defendants (Respondents)



Michael Burgar, for the appellants



Joseph Obagi, for the respondents



Heard and endorsed: January 13, 2011



On appeal from the judgment of Justice Robert Maranger of the
          Superior Court of Justice, sitting with a jury, dated November 13, 2009.



APPEAL BOOK ENDORSEMENT



[1]

In a case involving a claim under
    the
Dog Owner's Liability Act
, R.S.O. 1990, C. D. 16, the appellant
    claims that the trial judge erred in his instructions to the jury concerning
    the word "attack" as it appears in s. 2(1) of the Act.

[2]

The appellant argues that
    the trial judge misdirected the jury by instructing them that the language in a
    strict liability statute must be given a strict and narrow interpretation. The
    appellant also contends that the trial judge's explanation of the term attack
    was inadequate.

[3]

We would not give effect to this
    ground of appeal. Even accepting that the trial judge erred in instructing the
    jury that the language in a strict liability statute must be given a narrow
    interpretation, absent misdirection on the meaning of the words, we are not
    persuaded the jury would have been led into error by this instruction.

[4]

Concerning the alleged inadequacy
    of the trial judge's instructions, none of the issues raised on appeal were the
    subject of objections at trial. As this court said in
Rizzi v. Mavros
,
    [2008] O.J. No. 935, at para. 38, the absence of objection suggests that the
    issue was not seen as central to the jury's deliberations. Particularly in the
    absence of the closing addresses to the jury, and given the manner in which the
    trial judge framed the positions of the parties, we are not persuaded that the
    alleged inadequacies would have had any impact on the jury's deliberations.

[5]

The appellant also raises an issue
    about the admission of alleged hearsay evidence of a statement made by one of
    the appellant's witnesses. Although this evidence may have been relevant in a
    general way to the issue of credibility, its primary relevance related to the
    issue of contributory negligence. Having regard to the jury's finding that the
    dogs did not attack the appellant, we do not reach the issue of contributory negligence.
    Once again, appellants counsel raised no objection to the admission of this
    evidence or to the trial judges failure to instruct the jury concerning
    hearsay. Particularly in the absence of the closing addresses, we are unable to
    conclude that this issue was central to the jurys deliberations as to whether
    an attack occurred.  Similar considerations apply to the appellants argument
    that the rule in
Browne v. Dunn
was offended.

[6]

The appellant did not pursue
    the issue of read-ins in oral argument. We would not give effect to this ground
    of appeal.

[7]

Even if the jury misunderstood the
    trial judges instructions on damages, it does not impugn the integrity of
    their first conclusion that there was no attack.

[8]

Costs of the appeal are to
    the respondents, on a partial indemnity scale fixed in the amount of $15,665.84
    inclusive of disbursements and applicable taxes.


