



COURT OF APPEAL FOR ONTARIO

CITATION: Stilwell v. World Kitchen Inc., 2014 ONCA 770

DATE: 20141104

DOCKET: C57348 C57372

Gillese, Pepall and Hourigan JJ.A.

BETWEEN

Lanny Stilwell and Moira Neale

Plaintiffs (Respondents)

and

World Kitchen Inc. and Corning Incorporated

Defendant (Appellants)

Paul J. Pape and Sanam Goudarzi, for the appellant,
    World Kitchen Inc.

Young Park, for the appellant, Corning Incorporated

Christopher Morrison and Paul J. Cahill, for the
    respondents

Heard:  August 19, 2014

On appeal from the judgment of Justice Ian F. Leach of
    the Superior Court of Justice, sitting with a jury, dated June 12, 2013.

Hourigan J.A.:

[1]

World Kitchen Inc. (World Kitchen) and Corning Incorporated
    (Corning) appeal the judgment of Justice Leach, sitting with a jury, awarding
    the respondents aggregate damages of $1,157,850 for negligence related to
    product liability.

[2]

For the reasons that follow, I would dismiss the appeal in its entirety,
    save for the appeal of the award of $25,000 in aggravated damages, which award I
    would set aside.

Background

[3]

On September 11, 2000, the respondent, Lanny Stilwell, was washing a
    glass Visions brand Dutch oven (the "Dutch oven" or the
    "pot") in his sink when he heard a popping noise and the pot shattered
    in his hands (the "incident"). As a result of the incident, Mr.
    Stilwell suffered severe injuries to his wrist.

[4]

In January 2002, Mr. Stilwell and his common law wife, the respondent
    Moira Neale, commenced an action against World Kitchen, alleging negligence and
    breach of warranty. Corning was added as a defendant in August 2008. The action
    proceeded as a jury trial.

[5]

Corning brought a motion before the trial judge, in the absence of the
    jury, to dismiss the claim against it on the basis that it was commenced after
    the expiry of the six-year limitation period and was, therefore, statute
    barred. In oral reasons, the trial judge dismissed the motion, concluding:

In my view, having regard to all of the circumstances of the
    case, and having particular regard to the information available to the
    plaintiffs and their counsel on or before August 18th, 2002, I cannot find that
    the plaintiffs and their counsel knew or ought to have known all the material
    facts concerning the advisability of a formal claim against Corning
    Incorporated more than six years prior to advancement of that claim in 2008.
    The applicable limitation period accordingly had not commenced and run its course
    prior to the plaintiffs adding Corning Incorporated to the litigation.

[6]

The jury found the defendants (appellants on appeal) 75% at fault for their
    failure to adequately warn of the dangers associated with the Dutch oven. Mr. Stilwell
    was found to be 25% at fault for the incident.

[7]

The jury assessed Mr. Stilwells damages at $1,132,850, including
    $25,000 in aggravated damages. Ms. Neales damages were assessed at $25,000 for
    loss of care, guidance and companionship.

[8]

The jury provided the following answer with respect to the particulars
    of its finding of negligence:

Not clearly stated the difference between deep versus minor
    scratches.

Not identified what constitutes a deep scratch and when the
    consumer should contact manufacturer.

Warning due to accidental breakage from impact and subsequent
    potential injury should be further emphasized in manual warning and included on
    exterior of box.

[9]

With respect to its finding of contributory negligence, the jury stated:

Based on the balance of probability it is likely that an impact
    occurred. Evidence from the expert witnesses indicates that a breakage was most
    likely due to mechanical force such as an impact plus an internal stress.

In addition Mr. Stilwell was experiencing a stressful day and
    Mr. Stilwell admitted that it was his first time washing the pot (4.5 l vision
    dutch oven). The pot was large (4.5 l) the obstruction of the tap, plus
    dimensions of the sink increased the likelihood of an impact occurring.

[10]

World
    Kitchen and Corning appeal the judgment made in accordance with the jury
    verdict. Corning also appeals the dismissal of its motion to dismiss.

Positions of the Parties

[11]

World
    Kitchen and Corning submit that the jury verdict should be set aside because
    there was no evidence to support the finding that the alleged failure to
    adequately warn the respondents caused or contributed to the incident. In
    particular, they assert that the respondents failed to adduce any evidence that
    they would have acted differently had they been warned of the potential danger.
    Moreover, they argue that there is no causal connection between the types of
    warnings the jury referenced in the verdict sheet and the incident.

[12]

The
    appellants further submit that the trial judge erred in his instruction to the
    jury regarding aggravated damages. They allege that the trial judge failed to
    advise the jury that, in order to award such damages, they must be satisfied
    that any increased injury to the respondents due to the manner in which the
    injury was inflicted must have occurred as a result of misconduct by the
    appellants.

[13]

Corning
    also submits that the trial judge erred in finding that the action was
    commenced against it within the applicable six-year limitation period.
    Cornings position is that the trial judge articulated too high a threshold for
    the level of actual or deemed knowledge required to commence the running of a
    limitation period.

[14]

The
    respondents submit that the appellants argument on causation amounts to an invitation
    to this court to usurp the role of the jury as trier of fact and to make
    factual findings that are inconsistent with the jurys answers. Their position
    is that the findings of the jury were well supported on the evidence and there
    is, therefore, no basis for appellate interference.

[15]

With
    respect to the trial judges ruling on the limitation period defence, the
    respondents submit that the trial judge articulated and properly applied the
    correct test.

[16]

The
    respondents concede that the trial judge erred in his instruction to the jury
    on the issue of aggravated damages. However, they argue that the only effect of
    the misdirection was that the jury was instructed to consider increasing the
    award for general damages to compensate Mr. Stilwell for the manner in which his
    injury occurred. Therefore, they submit that the $25,000 in aggravated damages
    should be added to the general damages award.

Issues

[17]

The
    appeal raises the following issues:

(i) Did the trial judge err
    in finding that the respondents claim was not statute barred?

(ii) Should the jurys
    liability finding be set aside?

(iii) Should the jurys
    award of $25,000 in aggravated damages be set aside or added to the award for
    general damages?

Analysis

(i)      Limitation Period

[18]

Corning
    submits that where the identity of a potential defendant is in question, the
    limitation period commences when the plaintiff has, or is deemed to have,
prima
    facie
grounds to infer that the relevant acts or omissions were caused by a
    particular party:
Kowal v. Shyiak,
2012 ONCA 512, 13 C.L.R. (4th) 7, at
    para. 18.

[19]

Corning
    concedes that the determination of when the plaintiff has, or is deemed to have,
    such
prima facie
grounds is primarily a question of fact and that the corresponding
    standard of review by an appellate court is one of palpable and overriding
    error. However, Corning argues that the articulation and application of this
    legal threshold must be reviewed on a standard of correctness. The motion
    judge, it submits, erred in articulating too low a standard of reasonable
    diligence on the part of the respondent in investigating its potential claim. Corning
    claims that this error is extricable from the trial judges findings of fact
    and is, therefore, reviewable according to a standard of correctness.

[20]

I
    would reject this argument for the following reasons.

[21]

Counsel
    for Corning conceded in oral argument that the trial judge articulated the
    correct legal issue in his ruling when he stated that the real question to be
    answered is whether the plaintiffs and/or their counsel learned that they had a
    cause of action against Corning Incorporated, or through the exercise of
    reasonable diligence ought to have learned that they had a cause of action
    against Corning Incorporated prior to August 19th, 2002.

[22]

Corning
    submits that the trial judge subsequently erred when he stated that the
    material fact in question was the identity of the party likely to bear
    responsibility for that alleged Visions Dutch oven, and when he concluded that
    he could not find that the respondents knew or ought to have known the
    material facts concerning the advisability of a formal claim against Corning.

[23]

In
    my view, the trial judge made no error in principle in his analysis of the
    limitation defence. There is nothing in the impugned comments of the trial
    judge, or in his ruling as a whole, that evidences any change in the
    formulation of the test. I reject Cornings submission that the phrases likely
    to bear responsibility or advisability of a formal claim indicate any
    material departure from the
prima facie
threshold.

[24]

Having
    failed to identify a legal error, Cornings argument essentially amounts to an
    attack on the trial judges factual findings that supported his conclusion that
    the respondents exercised reasonable diligence in attempting to identify the
    proper defendants. In my view, the trial judges factual findings were amply
    supported by the evidence, including:

(i) the Internet searches
    conducted by the respondents and their counsel, which suggested World Kitchen
    was responsible for the Vision products;

(ii) the email
    correspondence between the respondents and World Kitchen, which also suggested
    World Kitchen, if anyone, was responsible for the products;

(iii) the letter from
    counsel for World Kitchen to counsel for the respondents dated March 19, 2002,
    which stated that the correct defendant is World Kitchen Inc.;

(iv) the steps taken by
    counsel for the respondents during the ensuing examinations for discovery to
    follow up and confirm that the correct defendant had been named; and

(v) the information in the
    trademark search commissioned by counsel for the respondents, which, in the
    words of the trial judge, indicated a progression from various Corning
    entities to a World Kitchen entity.

[25]

Based
    on this evidence, the trial judge concluded that there was a good deal of
    support for the plaintiffs position that, in these early stages of the
    investigation and litigation, the available information pointed to World
    Kitchen as the entity likely to bear responsibility, if any, for the Visions
    cookware.

[26]

Contrary
    to the submission made by counsel for Corning, the trial judge did not ignore
    the evidence that Corning says should have alerted the respondents to a
    potential claim. Rather, the trial judge considered that evidence and declined
    to draw the inferences urged upon it by Corning.

[27]

In
    considering Cornings arguments, the trial judge also recognized the practical
    difficulties the respondents faced in trying to identify the correct defendant
    in the context of a very complicated corporate organizational structure. In
    these circumstances, the trial judge concluded that the respondents' reliance
    on the representation by World Kitchen that they had sued the correct party was
    reasonable.

[28]

On
    the evidence, it was open to the motion judge to come to the conclusion he did
    and Corning has failed to identify any palpable or overriding error in the
    trial judge's limitation period analysis. There is, therefore, no basis for
    appellate interference with the motion judge's ruling regarding the limitation
    period.

(
ii)     Causation
    Finding

[29]

Other
    than the issue of aggravated damages, which will be discussed below, the
    appellants do not take issue with the jury charge. Rather, the focus of their
    argument is that the jurys findings are inconsistent with the evidence presented
    at trial. In particular, the appellants submit that there was no evidence of
    causation between the alleged failure to warn and the incident.

[30]

In
    support of their position, the appellants point to the answers from the jury in
    the verdict sheet. They submit that the evidence does not support a causal
    connection between the types of warnings the jury referenced in its answer and
    the incident. Their position is that since the jury did not find any negligence
    in the design or manufacture of the pot and there was no evidence of scratches,
    a warning to discontinue use of the pot if it was scratched would have had no
    effect.

[31]

The
    appellants also argue that a more comprehensive warning would not have altered
    the behaviour of Ms. Neale, who, according to the evidence, was extremely
    safety conscious, or the behaviour of Mr. Stilwell, who never read the warnings.

[32]

In
    considering these submissions, it is important to have regard to two well-developed
    and long-standing principles of law related to civil jury trials.

[33]

First,
    the standard of review of civil jury verdicts is exceptionally high. A civil
    jurys verdict should be set aside only where it is so plainly unreasonable and
    unjust that no jury reviewing the evidence as a whole and acting judicially
    could have arrived at the verdict:
Boucher v. Wal-Mart Canada Corp.
,
    2014 ONCA 419, 120 O.R. (3d) 481, at para. 49;
Goodwin (Litigation Guardian
    of) v. Olupona
, 2013 ONCA 259, 305 O.A.C. 245, at para. 23.

[34]

Second,
    a jurys verdict is entitled to a fair and liberal interpretation in light of
    the evidence and of the circumstances:
Malone v. Trans-Canada Airlines
,
    [1942] O.R. 453, at para. 25 (C.A). Answers by a jury should be given the
    fullest possible effect and supported, if possible, by any reasonable
    construction. A new trial should be ordered only where the jury seems to have
    confused  the issues at trial, it is doubtful whether the jury paid attention
    to the real point in issue, and the questions answered or unanswered leave the
    real issue in doubt and ambiguity:
Jamieson v. Harris
(1905), 35 S.C.R.
    625, at para. 2;
Graham v. Regent Motors Ltd.
, [1939] O.J. No. 163,
    at para. 9 (Ont. H. Ct. J.).

[35]

This
    approach to the review of jury answers is entirely justified on policy grounds.
    Our courts recognize that civil juries are made up of laypeople who are
    untrained in the law, and that allowances for this lack of training must be
    made in considering their answers to questions. It is also important to
    remember that civil juries are instructed not to give reasons for their
    decisions, so their answers must be read in this context.

[36]

The
    appropriate degree of judicial deference to be applied in the consideration of
    jury answers and verdicts was described by Laskin C.J.C. in his dissent in
Wade
v.
C.N.R
., [1978] 1 S.C.R. 1064, at pp. 1069-1070:

Appeal Courts do not fine-comb jury answers
    but accord them the respect of a common sense interpretation even where there
    may be some ambiguity in the answers. It is always timely to be reminded that
    juries do not write reasons for judgment, and their answers must be taken
    against the background of the evidence from which they are entitled to select,
    without manifesting their selection, what is credible, what is significant,
    what is persuasive to them. It is very often easy for an appellate Court, in
    the leisurely scrutiny of the transcript, to find significance in pieces of
    evidence to contradict jury findings, and in so doing to usurp the jurys
    function. What an appellate Court may believe from a reading of the transcript
    may be the very things which a jury disbelieved or believed in part only. It is
    one thing to interfere with a jurys verdict where there is simply no evidence
    to support its findings or to support a critical one; it is a different thing,
    and not to be encouraged, to interfere with its findings where there is
    evidence, however slight, on which they may be based, but where because of
    offsetting evidence a question of credit and weight arises. These are matters
    for the jury alone.

[37]

With
    these principles in mind, I turn to a consideration of the jurys verdict in
    the present case. As a starting point, it is useful to put the jurys verdict
    and their answers to the questions posed in the context of the evidence they
    heard at trial.

[38]

There
    was evidence that prior to Ms. Neale's purchase of the pot, the appellants were
    aware of over 2,000 reported injuries related to the use of the Visions
    products.

[39]

The
    warning regarding breakage was not found in the warning section of the manual
    or on the outside of the box, but in the Remember section of the manual. It
    indicated only that the product was subject to breakage if dropped or subjected
    to hard impact.

[40]

The
    evidence at trial established that Ms. Neale was extremely careful in her use
    and care of the product. She never stacked the pot, never used the pot in a
    manner that was contrary to the instructions (e.g. deep frying), never dropped or
    banged the pot, and never washed it in the dishwasher.

[41]

At
    the time of the incident, Mr. Stillwell was in the process of hand-washing the
    Dutch oven. This care for the product was specifically mandated by the
    product's instruction manual.

[42]

The
    glass experts provided evidence at trial that the Dutch oven could have been
    suffering from an internal stress; however, they disagreed about the likelihood
    that an internal stress was, in fact, present. The appellants' expert opined
    that there likely was no internal stress while the respondents expert held the
    opposite view.

[43]

There
    was also evidence that, following the incident, Ms. Neale immediately stopped
    using the cookware. She did not throw out the other pots in the set because she
    was fearful that someone would find them and use them, which she believed would
    be unsafe.

[44]

I
    turn now to the appellants argument that there is no connection between the
    alleged failure to provide a better warning regarding deep versus minor
    scratches and the incident.

[45]

I
    disagree with this submission. There were three theories advanced at trial
    regarding the cause of the breakage: an impact hard enough to break the Dutch
    oven, an impact plus an internal stress, and a spontaneous break. There was
    expert evidence that a deep scratch could cause or be a sign of internal
    stress.

[46]

On
    a fair and liberal reading of the verdict sheet, it appears that the jury
    rejected Mr. Stilwells testimony that he did not bang the pot when he was
    cleaning it and accepted the middle-ground theory that the breakage occurred
    due to a combination of an internal flaw and an impact. This finding was open
    to the jury to make on the evidence before them.

[47]

It
    was also open to the jury to find that, despite the fact that there was no
    evidence of anyone noticing a deep scratch in the Dutch oven, such a scratch
    could have been present and contributed to the internal stress.

[48]

The
    appellants argue that because the respondents were aware the product would
    break if struck hard enough, and because Ms. Neale was extremely careful with
    the Dutch oven, an enhanced warning would have made no difference in how the
    respondents used and cared for the product.

[49]

I
    accept the submission of the appellants that there was no direct evidence as to
    how the respondents would have acted had an adequate warning been given. 
    However, this does not end the analysis. The jury, like any trier of fact, was
    permitted to make inferences based on the evidence.  Specifically, it was open
    to the jury to infer that Ms. Neale would not have purchased the product had
    she been adequately warned.

[50]

A
    sufficiently clear product warning may be a significant factor in a consumer's
    decision to purchase a product. Based on the evidence that Ms. Neale was
    extremely cautious in her use and care of the product, there was an available
    inference that she would not have purchased the cookware had she been
    adequately warned that the combination of an internal stress and an impact while
    caring for the product in the manner recommended by the manufacturer could
    cause catastrophic failure, exposing the user to risk of significant injuries.

[51]

In
    my view, there was an evidentiary basis for the conclusion reached by the jury.
    While a different jury, or a judge sitting alone, may have drawn different
    inferences and reached different conclusions, I am not satisfied that the
    verdict is plainly unreasonable and unjust or that, in reaching it, the jury
    was not acting judicially. Therefore, I would not give effect to this ground of
    appeal.

(iii)    Aggravated Damages

[52]

It
    is common ground among the parties that the trial judge erred in his charge to
    the jury on the issue of aggravated damages. The trial judge instructed the
    jury that if they found that Mr. Stilwell suffered anxiety, nervousness and an
    initial fear of glass objects as a result of the manner in which the injury
    occurred, an award of aggravated damages was appropriate to compensate him for
    those injuries. The trial judge erred in failing to advise the jury that, in
    order to award such damages, they had to be satisfied that any increased injury
    to Mr. Stilwell due to the manner in which the injury was inflicted had to
    be tied to  that is, be a result of  particularly reprehensible misconduct by
    the appellants.

[53]

The
    respondents submit that, while the types of damages described in the jury
    charge are not compensable as aggravated damages, they are recoverable as
    non-pecuniary general damages flowing from the respondents negligent conduct.
    Consequently, they submit, that the only error made by the trial judge was in
    mislabelling the damages.

[54]

I
    cannot accept the respondents submission on this point. The fact remains that
    the jury was provided with an incorrect instruction regarding aggravated
    damages. They were also provided separate instructions regarding general
    non-pecuniary damages and awarded Mr. Stilwell $100,000 under this head of
    damages.

[55]

It
    is entirely speculative to assume, as the respondents invite us to do, that had
    they been properly instructed, the jury would have increased the general
    damages by $25,000.

[56]

Therefore,
    I would set aside the award of aggravated damages.

Disposition

[57]

I
    would allow the appeals in part and set aside the $25,000 aggravated damages
    award.

[58]

With
    respect to costs, the respondents submitted that, if successful on all issues,
    they should be entitled to total partial indemnity costs of approximately
    $40,000, and if they were not successful on the aggravated damages issue, then
    they should be entitled to total partial indemnity costs of $30,000. The
    appellants did not take issue with these figures. Accordingly, I would order
    that the appellants are jointly and severally liable for the respondents costs
    in the amount of $30,000, all inclusive.

Released: November 4, 2014 E.E.G.

C.
    William Hourigan J.A.

I
    agree E.E. Gillese J.A.

I
    agree S.E. Pepall J.A.


