



COURT OF APPEAL FOR ONTARIO

CITATION: Norman v. van Meppelen Scheppink, 2017 ONCA 192

DATE: 20170307

DOCKET: C61330

Juriansz, Brown and Miller JJ.A.

BETWEEN

Claire Norman by her litigation guardian Roslynn
    Norman, Ian Normal, Roslynn Norman, Kathryn Norman, Adam Norman and James
    Norman

Plaintiffs (Respondents)

and

Jeremy van Meppelen Scheppink,
Victor
    Litostanski
and
Inessa Litostanski

Defendants (
Appellants
)

R. Shawn Stringer, for the appellants

James D. Virtue and James J. Mays, for the respondents

Heard: March 1, 2017

On appeal from the judgment of Justice A. Duncan Grace of
    the Superior Court of Justice, dated October 23, 2015.

ENDORSEMENT

[1]

The appellant was driving westbound on a two-lane road when a vehicle
    travelling in the eastbound direction was struck from behind causing it to
    spin, flip onto its roof and cross over into westbound lane. The appellants
    vehicle collided with that vehicle in what was termed at trial, the second
    collision. The jury found there was negligence on the part of the appellant
    that caused or contributed to the second collision. The appellant appeals.

[2]

The respondents had settled their claim against the driver who caused
    the first collision, and had also settled the quantum of damages with the
    appellant. Consequently, the only question for the jury was whether the
    appellant was negligent.

[3]

Appellants counsel advances three grounds of appeal.

[4]

First, appellants counsel submits that the jury held the appellant to a
    standard of perfection and its verdict defies common sense. We do not accept
    the argument. The trial judge repeatedly instructed the jury that the law does
    not hold a driver to a standard of perfection. Moreover, there was ample
    evidence upon which a properly instructed jury could find the appellant was
    negligent. The evidence of the respondents accident reconstruction expert, by
    itself, would support the verdict. Eyewitness testimony of others, including
    the driver of the respondents vehicle, was available evidence, which if
    accepted by the jury, would support the verdict.

[5]

The second ground of appeal is that the trial judge erred in charging
    the jury that a prudent motorist should drive at a rate of speed and with his
    vehicle under such control that the motorist is able to pull up within the
    range of his vision. We agree that this instruction was inappropriate in the
    circumstances of this case. Respondents counsel acknowledges this model charge
    is intended for rear end collisions and was inapplicable.

[6]

Nevertheless, upon considering the charge as a whole against the
    backdrop of the evidence led at trial we do not think this isolated sentence
    would have caused the jury to engage in an incorrect analysis. In his charge,
    the trial judge also instructed the jury as follows:

At all times an operator of a vehicle must exercise the same
    level of caution as might be expected in like circumstances by a reasonably prudent
    driver. Each driver must take proper precautions to guard against such risk as
    might reasonably be anticipated to arise from time to time as the driver
    proceeds along the road. This degree of care and nothing more is required

If, however, a situation develops and the motorist sees or
    should see a situation of danger or emergency arising, the driver must take
    reasonable care to try to extricate himself from that situation if possible.
    The drivers efforts in this regard are not to be judged by a standard of
    perfection, but by a standard of reasonableness.

[7]

As well, appellants counsel recognizes that the trial judges reference
    to the drivers ability to pull up within the range of his vision, standing on
    its own, would not warrant a new trial.

[8]

We note that the trial judge provided his proposed charge to counsel and
    appellants trial counsel did not object to the instruction now impugned.

[9]

We would not give effect to this ground of appeal.

[10]

The third ground of appeal advanced is that the trial judge erred by
    failing to provide adequate instructions in response to improper closing
    submissions of respondents trial counsel. Respondents trial counsel, Mr.
    James May, made the following remarks in his closing address to the jury:

This is a serious event in the life of the Norman family. They
    will be living with the effects of this collision, whatever you decide, for the
    test of their lives and its - were trying to understand what resources they
    can have to care for a very badly injured young lady and an injured mom.



This is a horrible thing [that] happened to the Norman family.
    The effects of it will be with them forever. Does someone bear along with them
    the financial responsibility, the financial consequences of what happened?



Were saying a horrible thing happened to the Norman family
    thats going to cost them - for the rest of their life, its going to cost
    them.



Now tomorrow the Norman family will await your verdict, the
    final steps to justice are yours. When you issue your verdict Id ask you to remember
    that youll get to go home. Ill get to go home. His Honour will get to go
    home. Ms. Bennett will get to go home and well all get to live out our lives
    but no matter what you decide, the Norman family has to live with this tragedy
    for the rest of their lives.

[11]

We reject respondents counsels attempt to rationalize these closing
    submissions as factually correct and made as part of an earnest and fulsome
    plea to the jury seeking compensation for an injured child. The parties had
    settled the issue of damages. These remarks were so evidently irrelevant and
    improper, we infer counsel made them deliberately in an attempt to influence
    the jury. When pursuing their clients interests, counsel must not disregard
    their superordinate duties as officers of the court and to the administration
    of justice.

[12]

Appellants trial counsel objected to these improper remarks and sought
    a correcting instruction. The trial judge reviewed what he proposed to say with
    appellants counsel. Trial counsel did not press for a more specific and
    strenuous instruction. The trial judge instructed the jury that the only issue
    it had to decide was whether the appellant was negligent and emphasized that
    sincere sympathy for those involved should play no role in their analysis.
    While a more pointed instruction might have been given, it is not clear that
    appellants counsel would have welcomed a repetition of improper comments.

[13]

In the circumstances, we would not give effect to this submission. Nor
    are we persuaded that upon considering the interplay of the three grounds the
    appellant has raised, a new trial is warranted.

[14]

The appeal is dismissed. Costs in favour of the respondents are fixed in
    the amount of $25,000 all-inclusive.

"R.G. Juriansz J.A."

"David Brown J.A."

"B.W. Miller J.A."


