Hoang et al. v. Vicentini et al., (2016) 352 O.A.C. 358 (CA)

• Judge: Laskin, Hourigan and D. Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 13, 2016
• Jurisdiction: Ontario
• Citations: (2016), 352 O.A.C. 358 (CA);2016 ONCA 723

Hoang v. Vicentini (2016), 352 O.A.C. 358 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. OC.003

Christopher Hoang and Danielle Hoang, both minors by their Litigation Guardian, San Trieu, and San Trieu, personally (plaintiffs/appellants) v. Adriano Vicentini, Ford Credit Canada Leasing Company and Can Hoang (defendants/respondents)

(C55389; 2016 ONCA 723)

Indexed As: Hoang et al. v. Vicentini et al.

Ontario Court of Appeal

Laskin, Hourigan and D. Brown, JJ.A.

October 5, 2016.

Summary:

Hoang dropped his six year old son, Christopher, off on a street corner in downtown Toronto. Christopher's hat blew off and he ran into the street to retrieve it. Christopher was struck by a vehicle driven by Vicentini and suffered significant injuries. Christopher sued the father, Vicentini, and Ford Credit Canada Leasing Co., the owner of the Vicentini vehicle. Christopher's mother and sister asserted Family Law Act (FLA) claims. A jury found that Hoang negligently caused the accident and his son's injuries. The jury assessed Christopher's damages at $150,000 for non-pecuniary damages and $684,228.22 for future care costs. Christopher's mother was awarded damages under the FLA of $20,000. His sister's claim was dismissed as was the action against Vicentini and Ford Credit. The trial judge ordered the plaintiffs to pay partial indemnity costs to Vicentini fixed at $435,214.19 and to Ford Credit in the amount of $173,695.39. She also ordered Hoang to pay the plaintiffs their partial indemnity costs fixed at $899,750. The plaintiffs appealed, seeking a new trial on the issue of the liability of Vicentini and Ford Credit and an increase in the damages for future care costs to $1.1 million. The plaintiffs also sought orders requiring the Personal Insurance Co., Hoang's vehicle insurer, to pay the costs the trial judge awarded to them, Vicentini and Ford Credit. The plaintiffs raised six main grounds of appeal: (i) the trial judge erred in her rulings concerning the scope of evidence admissible on the issue of the operation of the brakes on Vicentini's vehicle; (ii) the trial judge erred in admitting certain evidence from human factors experts; (iii) the trial judge erred in failing to charge the jury on the issue of the operation of the brakes and left that issue with the jury for its consideration; (iv) the trial judge erred in her instructions to the jury on the use they could make of a chart plaintiffs'' trial counsel used on the issue of future care costs; (v) the trial judge erred in awarding costs against the minor plaintiff, in awarding separate costs to each of Vicentini and Ford Credit, and in refusing to grant a Sanderson Order; and, (vi) trial counsel for Hoang, whom the Personal Insurance Co. appointed, was in a position of conflict during the trial, which might have contributed to the denial of Christopher's right to a fair trial.

The Ontario Court of Appeal dismissed the appeal on the issues of liability and damage. The court, however, allowed the appeal on costs to the extent only of varying the judgment so that the amounts ordered payable by the minor appellants were payable by their litigation guardian, personally and in her capacity as litigation guardian.

Barristers and Solicitors - Topic 1617

Relationship with client - Conflict of interest or duties - Situations not resulting in a conflict - See paragraphs 64 to 86.

Evidence - Topic 7000.4

Opinion evidence - General - Admissibility - See paragraphs 15 to 45.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - See paragraphs 15 to 45.

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - See paragraphs 58 to 63.

Practice - Topic 6934.1

Costs - General principles - Parties under disability- See paragraphs 90 to 92.

Practice - Topic 7056

Costs - Party and party costs - Entitlement to - Entitlement to two sets of costs - See paragraphs 93 to 98.

Practice - Topic 7155

Costs - Party and party costs - Liability for party and party costs - Bullock order or Sanderson order - Where success divided - See paragraphs 99 to 101.

Counsel:

Geoffrey D.R. Adair and Gord McGuire, for the appellants;

Kerri Kamra, for the respondent, Can Hoang;

David A. Zuber and Joshua Henderson, for the respondent, Adriano Vicentini;

S. Wayne Morris and Melissa Miles, for the respondent, The Personal Insurance Company;

Bruce R. Mitchell, for the respondent, Ford Credit Canada Leasing Company.

This appeal was heard on April 13, 2016, before Laskin, Hourigan and D. Brown, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by D. Brown, J.A., on April 5, 2016.