



COURT OF APPEAL FOR ONTARIO

CITATION: Rolley v. MacDonell, 2020 ONCA 642

DATE: 20201013

DOCKET: C66200

Juriansz, Hourigan and Thorburn
    JJ.A.

BETWEEN

Mark Rolley, Jocelyn Rolley,
    Emily Rolley, Benjamin Rolley, Joseph Rolley, Tommy Paupst and Angel Paupst

Plaintiffs

(Respondents/Appellants by way of cross-appeal)

and

Dorothy MacDonell
and Belair Insurance Company Inc.

Defendants

(
Appellant/Respondent by way of cross-appeal
)

Alan L. Rachlin, for the appellant/respondent
    by way of cross-appeal

Joseph Y. Obagi and Elizabeth A. Quigley,
    for the respondents/appellants by way of cross-appeal

Heard: September 30, 2020 by
    videoconference

On appeal from the judgment of Justice Sylvia
    Corthorn of the Superior Court of Justice, dated November 1, 2018 with reasons reported
    at 2018 ONSC 6517, 87 C.C.L.I. (5th) 56.

REASONS FOR DECISION


[1]

This appeal is from the judgment dated November
    1, 2018 in the respondents action against the appellant and Belair Insurance
    Company Inc. arising from a motor vehicle accident. The respondent Mark Rolley,
    a pedestrian, was struck by a motor vehicle driven by the appellant, Dorothy
    MacDonell. The trial judge, after discharging the jury mid-trial, awarded the
    respondents damages totaling $2,023,016 plus interest, costs and disbursements.

[2]

The appellant argues the trial judge erred by
    striking the jury, refusing to grant a mistrial, erred in her treatment of Mr.
    Rolleys application for Canada Pension Plan disability benefits, and erred by
    refusing to admit surveillance videos of Mr. Rolley. In oral argument the
    appellant did not advance the allegation in the notice of appeal that the
    cumulative effect of these rulings demonstrated bias on the part of the trial
    judge. In oral argument the appellant submitted these errors amounted to a
    miscarriage of justice.

[3]

We are not persuaded there is any basis to
    interfere with the trial judges exercise of her discretion to discharge the
    jury.

[4]

The trial judge gave two reasons for discharging
    the jury, each of which provided a sufficient basis for doing so. First, as a
    result of counsels gross underestimation of the length of trial, there would
    be a 44-day break in the calling of evidence. Second, in mid-trial the respondents
    reasonably changed their claim for attendant care after the appellants late
    disclosure of an umbrella policy that substantially increased the limits of her
    insurance coverage. The trial judge had an ample basis to conclude the timing
    of the late disclosure and its resulting effect on the strategic decisions made
    by the respondents immediately following the disclosure of that information
    would result in potential prejudice to the respondents in the eyes of the jury.

[5]

We agree with the trial judge that the appellants
    motion at trial for a mistrial was an attempt to re-argue the respondents
    motion to discharge the jury and continue the trial with judge alone. This
    ground of appeal necessarily fails.

[6]

We see no error in the trial judges treatment
    of Mr. Rolleys application documents for CPP disability benefits as evidence of
    his condition at the point he completed them. It was the trial judges role to
    assess and weigh all the evidence including the CPP application. We reject the appellants
    argument that, as a matter of law, the CPP application had to be understood as
    showing Mr. Rolley suffered from a prolonged and continuing condition. We note
    the trial judge reduced the respondents damages by 25 percent to address the
    possibility Mr. Rolley, had the accident not taken place, would have been in
    the same position as he found himself after the accident.

[7]

Finally, we agree that the trial judge should
    have admitted the surveillance videos tendered as evidence by the appellant.
    Whether the surveillance evidence would have made a difference to the outcome thereby
    causing a miscarriage of justice is a case specific contextual assessment:
Nemchin
    v
.
Green
, 2019 ONCA 634, 147 O.R. (3d) 530, at paras. 72-73. It is
    determinative that after viewing the videos, the trial judge assessed them as
    having minimal, if any, probative value. The admission of the surveillance
    evidence would not have made a difference to the outcome and did not cause a
    miscarriage of justice.

[8]

The appeal is dismissed. The respondents have withdrawn
    the cross-appeal. The respondents costs are fixed in the amount of $51,540.66
    as agreed by counsel.

R.G. Juriansz J.A.

C.W. Hourigan J.A.

J.A. Thorburn J.A.


