El Dali v. Panjalingam, 2013 ONCA 24

• Judge: Laskin, MacPherson and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 28, 2012
• Jurisdiction: Ontario
• Citations: 2013 ONCA 24;(2013), 302 O.A.C. 44 (CA)

El Dali v. Panjalingam (2013), 302 O.A.C. 44 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JA.007

Walid El Dali and Rajaa El Dali (plaintiffs/appellant) v. Sothinathan Panjalingam and Pauchanathan Panjalingam (defendants/respondents)

(C53417; 2013 ONCA 24)

Indexed As: El Dali v. Panjalingam

Ontario Court of Appeal

Laskin, MacPherson and Gillese, JJ.A.

January 18, 2013.

Summary:

The plaintiff sued the defendant for damages for injuries sustained in an automobile accident. Following a jury trial the action was dismissed, although the jury assessed damages. The plaintiff appealed on both liability and damages.

The Ontario Court of Appeal allowed the appeal, set aside the judgment at trial and ordered a new trial on liability only.

Practice - Topic 5182

Juries and jury trials - Verdicts - Setting aside jury verdict - [See both Practice - Topic 9283 ].

Practice - Topic 9283

Appeals - Appeal from a jury verdict - Setting aside a jury verdict - The Ontario Court of Appeal stated that "The standard of appellate review of a civil jury verdict is well established. Where the trial judge's charge is fair and accurate, the jury's verdict will be set aside only where it is 'so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it' ... Although the standard requires appellate courts to treat jury verdicts deferentially, it does not require that they treat them 'with awe' ... Juries are not infallible. Occasionally they make mistakes. When they do, an appellate court should intervene" - See paragraphs 15 and 16.

Practice - Topic 9283

Appeals - Appeal from a jury verdict - Setting aside a jury verdict - The defendant lost control of his car in icy conditions, crossed the center line, and collided with the plaintiff - The plaintiff sued the defendant - The defendant did not testify to explain his driving and the defence offered no other explanation - Nonetheless, the jury answered "no" to the question whether the defendant's negligence caused or contributed to the accident - The action was dismissed - The plaintiff appealed - The Ontario Court of Appeal allowed the appeal and ordered a new trial - Pursuant to the Highway Traffic Act (s. 148(1)), the defendant was prima facie negligent for crossing the center line, and it was incumbent on the defence to offer an explanation - In the absence of any explanation for the defendant's driving or any evidence that he exercised reasonable care, the jury's verdict was unreasonable.

Torts - Topic 365

Negligence - Motor vehicle - Pedestrians - Travelling on wrong side of road - [See second Practice - Topic 9283 ].

Torts - Topic 550

Negligence - Motor vehicle - Evidence and burden of proof - Statutory burden on owner or operator - [See second Practice - Topic 9283 ].

Cases Noticed:

McLean v. McCannell, [1937] S.C.R. 341; [1937] 2 D.L.R. 639, refd to. [para. 15].

Olmstead v. Vancouver-Fraser Park Dist., [1975] 2 S.C.R. 831; 3 N.R. 326; 51 D.L.R.(3d) 416, refd to. [para. 16].

Levesque v. Levesque (2001), 151 O.A.C. 227 (C.A.), refd to. [para. 18].

Graham v. Hodgkinson (1983), 40 O.R.(2d) 697 (C.A.), refd to. [para. 20].

Rydzik v. Edwards (1982), 38 O.R.(2d) 486 (H.C.), refd to. [para. 25].

Gauthier & Co. v. R., [1945] S.C.R. 143, refd to. [para. 25].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118; 156 D.L.R.(4th) 577, refd to. [para. 27].

Fontaine v. Insurance Corp. of British Columbia - see Fontaine v. Loewen Estate.

Counsel:

Joseph Obagi and Elizabeth A. Quigley, for the appellant;

Peter Cronyn and Patricia Lawson, for the respondents.

This appeal was heard on November 28, 2012, before Laskin, MacPherson and Gillese, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Laskin, J.A., on January 18, 2013.