Fiddler v. Chiavetti et al., 2010 ONCA 210

• Judge: Goudge, Cronk and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 17, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONCA 210;(2010), 260 O.A.C. 363 (CA)

Fiddler v. Chiavetti (2010), 260 O.A.C. 363 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MR.100

Frederick J. Fiddler, Debbie A. Fiddler and Ashley Fiddler (respondents) v. Christian L. Chiavetti, Martin Tobler and Challenger Motor Freight Inc. (appellants)

(C49158; 2010 ONCA 210)

Indexed As: Fiddler v. Chiavetti et al.

Ontario Court of Appeal

Goudge, Cronk and LaForme, JJ.A.

March 19, 2010.

Summary:

Amanda Fiddler was killed in an automobile accident. At trial, a jury awarded her mother, father and sister damages under s. 61 of the Family Law Act. The defendants contended that certain jury instructions were inadequate and that the damages awarded were excessive.

The Ontario Court of Appeal allowed the appeal in part, and directed that the assessment of guidance, care and companionship damages for Amanda's mother be reduced from $200,000 to $125,000. The court dismissed all other grounds of appeal.

Damage Awards - Topic 97

Injury and death - Wrongful death and fatal accidents - Loss of guidance, care and companionship - Amanda Fiddler was killed in an automobile accident - At trial, a jury awarded her mother, father and sister (the plaintiffs) damages under s. 61 of the Family Law Act - Debbie was awarded $22,000 for past wage loss and $6,000 per year for 12 years for future wage loss - Debbie, Fred and Ashley were awarded $200,000, $50,000 and $25,000, respectively, for loss of care, guidance and companionship - The defendants appealed - The Ontario Court of Appeal noted that it was clear that the jury was moved to award each of the plaintiffs an amount that was at the mid to high end of the range and it did not wish to interfere or take issue with the jury's verdict in that respect - Consequently, it would not interfere with any of the awards given to the plaintiffs except the $200,000 amount awarded to Debbie because of the high end amount it had established in To v. Board of Education of Toronto et al. (2002) - Pursuant to s. 119 of the Courts of Justice Act, the court had jurisdiction to vary the assessment - Recognizing that the jury was moved to be generous, the court varied Debbie's guidance, care and companionship damages from $200,000 to $125,000 - See paragraphs 76 to 83.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings (incl. formula) - The Ontario Court of Appeal held that although it was customary to call expert evidence to establish a loss of income claim, there was no reason to conclude that it was a legal requirement to do so - See paragraphs 63 to 65.

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - [See Damages - Topic 1550 ].

Damages - Topic 1684

General damages - Evidence - Actuarial evidence - [See Damages - Topic 1550 ].

Damages - Topic 2226

Torts causing death - Evidence - Actuarial evidence - [See Damages - Topic 1550 ].

Damages - Topic 2372

Torts causing death - Particular damage claims - Loss of wages or earnings of dependent - [See Damage Awards - Topic 97 and Damages - Topic 1550 ].

Practice - Topic 5163

Juries and jury trials - Conduct of jury trial - Addresses and remarks of counsel - Improper or inflammatory statements - Amanda Fiddler was killed in an automobile accident - At trial, a jury awarded her mother, father and sister (the plaintiffs) damages under s. 61 of the Family Law Act - The defendants contended that certain jury instructions were inadequate - Counsel for the plaintiffs made statements to the jury which the defendants objected to as being inflammatory and designed to appeal to the jury's emotions - Counsel made reference to some of the injuries sustained by Amanda, and the fact that soft tissue was found down the side of the truck - The trial judge refused to provide correcting instructions - She found that her instructions were sufficient - She held that she had turned the jury's attention to the relevant issues and made clear that compensation was to be awarded only for the losses suffered by the plaintiffs as a result of the accident - The Ontario Court of Appeal held that the trial judge properly exercised her discretion to control the opening addresses - Read in context, the statements clearly demonstrated that the plaintiffs' counsel was merely setting out, as she was entitled to do, anticipated evidence that would contradict a finding of contributory negligence - She correctly surmised that defence counsel would lead evidence of contributory negligence, arguing that Amanda had contributed to her own death by not wearing a seatbelt - To counter this argument, she led evidence to demonstrate that Amanda died before being ejected from the vehicle - See paragraphs 5, 6 and 19 to 29.

Practice - Topic 5163

Juries and jury trials - Conduct of jury trial - Addresses and remarks of counsel - Improper or inflammatory statements - Amanda Fiddler was killed in an automobile accident - At trial, a jury awarded her mother, father and sister (the plaintiffs) damages under s. 61 of the Family Law Act - On appeal, the defendants alleged that the plaintiffs' trial counsel misrepresented the purpose of compensatory damages in the following passage: "You and you alone have the power to give Debbie, Fred and Ashley Fiddler the treatment and access to treatment that you determine they require. You and you alone have the power to decide what wage loss Debbie Fiddler, Amanda's mother has suffered. ...  Finally, you and you alone will determine an amount in dollars for the loss Debbie, Fred and Ashley have suffered." - The defendants contended that these statements were improper because they invited the jury to award damages to the plaintiffs for their pain and suffering instead of compensating for the losses they had incurred - The Ontario Court of Appeal disagreed - Counsel was anticipating the obvious question in the jurors' minds: why did her clients choose to self-medicate with alcohol and drugs instead of attending treatment and thus mitigating their damages - This was a live issue because of the defence strategy of minimizing the damages suffered by emphasizing Debbie and Fred Fiddler's drug and alcohol abuse - See paragraphs 30 to 34.

Practice - Topic 5163

Juries and jury trials - Conduct of jury trial - Addresses and remarks of counsel - Improper or inflammatory statements - Amanda Fiddler was killed in an automobile accident - At trial, a jury awarded her mother, father and sister (the plaintiffs) damages under s. 61 of the Family Law Act - On appeal, the defendants objected to three comments made by the plaintiffs' trial counsel that they submitted were inflammatory and invited the jury to decide the case based on emotion and not a reasoned analysis of the evidence - Specifically, counsel told the jury that they were there to right a wrong, noted that the plaintiffs had suffered a great deal of humiliation during the trial process, and stated that the death of a poor child was not valued any differently than that of a rich child - The Ontario Court of Appeal agreed that the trial judge had not specifically drawn the jury's attention to the offending closing comments by the plaintiffs' counsel, as it had recommended in Landolfi v. Fargione (2006) - That is, the jury was not explicitly told that counsel's impugned remarks were wrong and inappropriate and, hence, were to be ignored - However, the jury was clearly, and repeatedly, told to base its findings on the evidence at trial, not on the comments of counsel or of the trial judge on the evidence - Further, and significantly, the trial judge's instructions directly responded, in blunt terms, to the most serious of counsel's impugned comments - Based on her instructions, the jury could have been left in no uncertainty that it was to assess the issues objectively, impartially and without regard to emotions - No substantial wrong or miscarriage of justice occurred - Thus a new trial was not warranted - See paragraphs 49 to 57.

Practice - Topic 5164

Juries and jury trials - Conduct of jury trial - Addresses and remarks of counsel - Counsel's opinion on issues - Amanda Fiddler was killed in an automobile accident - At trial, a jury awarded her mother, father and sister (the plaintiffs) damages under s. 61 of the Family Law Act - The defendants appealed - The Ontario Court of Appeal held, inter alia, that the belief expressed by counsel for the plaintiffs that: "Debbie Fiddler has sustained the highest loss of care, guidance and companionship of any case I have ever read, or any person I have ever met", was problematic and contrary to the test it had set out in Brochu v. Pond et al. (2002) - However, the trial judge gave the jury explicit instructions to disregard the impugned comment - This was an adequate response to avoid any substantial wrong or miscarriage of justice that might have resulted from the comments - See paragraphs 38 to 48.

Practice - Topic 5167

Juries and jury trials - Conduct of jury trial - Addresses and remarks of counsel - Closing address - The Ontario Court of Appeal stated that "Considerable latitude is afforded counsel concerning the permissible scope of a closing jury address in a civil trial, 'even to extravagant declaration.' ... Counsel has the right to make an impassioned address on behalf of his or her client and, in some cases, the duty to so do, provided it 'does not offend in other respects.' ... Thus, although counsel is given significant latitude to make their case as they see fit, there are also important limits on the bounds of a closing jury address. For example, counsel's personal opinions, beliefs or feelings regarding the merits of a case are to be excluded. Additionally, comments which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations are objectionable. Such comments are 'inflammatory', because they appeal to the emotions of the jurors and invite prohibited reasoning ... As with opening addresses by counsel, the trial judge has three options when faced with impermissible closing statements. The trial judge, in his or her discretion, may caution the jury, strike the jury and conduct the trial by judge alone, or declare a mistrial." - See paragraphs 35 to 37.

Practice - Topic 5167.1

Juries and jury trials - Conduct of jury trial - Addresses and remarks of counsel - Opening address - The Ontario Court of Appeal discussed the law regarding opening statements - The court provided examples of what opening statements should not include: "Counsel may not assert personal opinions on the facts or the law; Counsel should not make any comments that are inflammatory; i.e. they appeal to the emotions of the jurors and invite prohibited reasoning; Inadmissible or irrelevant evidence may not be mentioned; and, Counsel cannot argue his or her case."- The court stated that "Trial judges have a wide discretion to control opening addresses. Where breaches occur, the trial judge may caution the jury, strike the jury and conduct the trial by judge alone, or declare a mistrial ... Generally courts are to be guided by the principle that clear improprieties in an opening or closing address by counsel are to be identified for the jury and coupled with an unambiguous direction that they are to be disregarded as irrelevant. In this way, the jury will know what statements by counsel are wrong or inappropriate and will be left in no doubt about the way in which it is to approach its task ... This need not involve an admonishment of counsel, although, in some cases, that may be appropriate in the exercise of the trial judge's discretion." - See paragraphs 15, 17, 18.

Practice - Topic 5197

Juries and jury trials - Charge to jury - Respecting assessment of damages - The Ontario Court of Appeal adopted the position expressed by Ferguson, J., in Buksa v. Brunskill, (1999, Sup. Ct.): "The usual instruction to the jury is to suggest that if it finds that there will be a future loss of income it should determine the average annual loss and then consider the present value and then consider the various contingencies. These calculations are customarily explained by an expert witness but in my view the jury must make its own calculations whether or not there is expert evidence." - See paragraph 65.

Practice - Topic 5197

Juries and jury trials - Charge to jury - Respecting assessment of damages - Amanda Fiddler was killed in an automobile accident - At trial, a jury awarded her mother, father and sister (the plaintiffs) damages under s. 61 of the Family Law Act - The defendants argued that the trial judge erred in failing to provide the jury with a range of appropriate damages, relying on s. 118 of the Courts of Justice Act, which states, "In an action for damages for personal injury, the court may give guidance to the jury on the amount of damages and the parties may make submissions to the jury on the amount of damages." - The Ontario Court of Appeal stated that the language of s. 118 was permissive rather than mandatory - Indeed, s. 118 was the product of common law reform; the traditional rule prevented a trial judge from giving such guidance - Accordingly, there was no general requirement that the trial judge give any particular guidance on damages; the appropriate instruction would depend on the circumstances and requirements of each individual case - However, although the trial judge did not err in declining to set out the upper limit respecting awards for loss of guidance, care and companionship in her instructions to the jury, it might have been helpful to do so here - The defence submissions on damages, combined with the judge's instructions, established a lower limit for damages - The jury clearly rejected this lower limit and decided to compensate on the high end of the permissible range - However, they had no instructions as to where this range might be, and settled on an amount that nearly doubled it - See paragraphs 70 to 75.

Cases Noticed:

Arland v. Taylor, [1955] O.R. 131 (C.A.), appld. [para. 9].

Brochu v. Pond et al. (2002), 166 O.A.C. 353; 62 O.R.(3d) 722 (C.A.), appld. [para. 9].

Dale v. Toronto Railway Co. (1915), 34 O.L.R. 104 (C.A.), refd to. [para. 11].

Abdallah v. Snopek (2008), 234 O.A.C. 15; 89 O.R.(3d) 771 (Div. Ct.), refd to. [para. 11].

Burke et al. v. Behan, [2004] O.T.C. 1157; 6 C.P.C.(6th) 207 (Sup. Ct.), refd to. [para. 15].

Landolfi v. Fargione (2006), 209 O.A.C. 89; 79 O.R.(3d) 767 (C.A.), refd to. [para. 18].

MacNeil v. Gillis (1995), 138 N.S.R.(2d) 1; 394 A.P.R. 1 (C.A.), refd to. [para. 63].

McKee v. Gergely, [1986] B.C.J. No. 854 (C.A.), refd to. [para. 63].

Buksa v. Brunskill et al., [1999] O.T.C. Uned. 754 (Sup. Ct.), agreed with [para. 65].

Prudential Securities Credit Corp. LLC v. Cobrand Foods Ltd., [2007] O.J. No. 2297 (C.A.), appld. [para. 66].

Parfitt v. Lawless (1872), 41 L.J.P. & M. 68, appld. [para. 66].

Foreman v. Foster (2001), 147 B.C.A.C. 254; 241 W.A.C. 254; 196 D.L.R.(4th) 11 (C.A.), refd to. [para. 71].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 76].

To v. Board of Education of Toronto et al. (2001), 150 O.A.C. 54; 55 O.R.(3d) 641 (C.A.), appld. [para. 76].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 118 [para. 70].

Authors and Works Noticed:

Abrams, Linda S., and McGuinness, Kevin P., Canadian Civil Procedure Law (1st Ed. 2008), p. 932 [para. 14].

Barry, J., Actuarial Evidence and the Role of the Actuary in Personal Injury Actions (1989), pp. 6, 14, 15 [para. 64].

Brown, Cara L., Damages Estimating Pecuniary Loss (2004 Looseleaf), p. 13-50 [para. 72].

Ferguson, Dan, The Law Relating to Jury Addresses (1997), 16(2) Advocates' Soc. J. 19, p. 21 [para. 13].

Sopinka, John, Houston, Donald B., and Sopinka, Melanie, The Trial of an Action (2nd Ed. 1998), p. 74 [para. 13].

Counsel:

Todd J. McCarthy and Tara L. Lemke, for the appellants;

Siona V. Sullivan, for the respondents.

This appeal was heard on December 17, 2010, by Goudge, Cronk and LaForme, JJ.A., of the Ontario Court of Appeal. LaForme, J.A., delivered the following decision for the court on March 19, 2010.