Lang v. McKenna, (2000) 135 O.A.C. 304 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Osborne, A.C.J.O., Weiler and Charron, JJ.A.
• Citation: (2000), 135 O.A.C. 304 (CA)
• Date: 23 May 2000
• Subject Matter: COURTS,PRACTICE

Lang v. McKenna (2000), 135 O.A.C. 304 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. AU.011

Henry McAlister Lang (plaintiff/appellant) v. Gerard McKenna (defendant/respondent)

(C30711)

Indexed As: Lang v. McKenna

Ontario Court of Appeal

Osborne, A.C.J.O., Weiler and Charron, JJ.A.

August 14, 2000.

Summary:

Lang, a lawyer, sued McKenna (a former client) for his outstanding account. The trial judge put to the jury the question of whether Lang was entitled to be paid his account out of a motor vehicle accident settlement. The jury answered "yes". McKenna moved under rule 52.08 to dismiss the action on the basis that there was no evidence to support the jury's answer. The trial judge accepted McKenna's position and ordered a new trial. Lang appealed, arguing that the trial judge erred in finding there was no evidence to support the jury's answer. McKenna cross-appealed, arguing that once the trial judge made the "no evidence" finding, he should have dismissed the action, not ordered a new trial.

The Ontario Court of Appeal allowed the appeal. It was open to the jury to answer the question put to it as it did. The court then dismissed the cross-appeal as redundant.

Courts - Topic 2101

Jurisdiction - Appellate jurisdiction - Gen­eral - Lang, a lawyer, sued McKenna for his outstanding account - The trial judge put to the jury the question of whether Lang was entitled to be paid his account out of a motor vehicle accident settlement - The jury answered "yes" - McKenna moved to dismiss the action under rule 52.08 on the basis that there was no evi­dence to support the jury's answer - The trial judge ordered a new trial - Lang appealed - The Ontario Court of Appeal allowed the appeal - The court stated that "[i]f there is some evidence to support the jury's verdict (as distinct from no evi­dence), it is still open to the unsuccessful party to contend on appeal that the jury's verdict was not supported by the evidence. However ... the unreasonable or perverse verdict issue is an appellate court issue, not an issue to be dealt with by the trial judge under rule 52.08(1)(c)" - See paragraph 24.

Practice - Topic 5182

Juries and jury trials - Verdicts - Setting aside jury verdict - [See Courts - Topic 2101 ].

Practice - Topic 5182

Juries and jury trials - Verdicts - Setting aside jury verdict - Lang, a lawyer, sued McKenna for his outstanding account - The trial judge put to the jury the question of whether Lang was entitled to be paid his account out of a motor vehicle accident settlement - The jury answered "yes" - McKenna moved to dismiss the action under rule 52.08 on the basis that there was no evidence to support the jury's answer - The trial judge ordered a new trial - Lang appealed, and McKenna cross-appealed, arguing that having made the "no evidence" finding, the trial judge should have dismissed the action, not ordered a new trial - The Ontario Court of Appeal allowed the appeal and dismissed the cross-appeal as redundant, but agreed that "if there was 'no evidence' to support the jury's verdict, the trial judge should have dismissed the action; he thus erred in ordering a new trial" - See paragraph 26.

Practice - Topic 5384

Dismissal of action - Application or motion for dismissal - Circumstances when granted - [See second Prac­tice - Topic 5182 ].

Practice - Topic 9285

Appeals - Appeal from jury verdict - Set­ting aside jury verdict - Verdict not sup­ported by the evidence - [See Courts - Topic 2101 and second Prac­tice - Topic 5182 ].

Cases Noticed:

Linett v. Strasberg, [1994] O.J. No. 2732 (Gen. Div.), refd to. [para. 16].

Statutes Noticed:

Rules of Court (Ont.), rule 52.08 [para. 10].

Counsel:

Henry Lang, in person;

Malcolm McLeod, for the respondent.

This appeal was heard on May 23, 2000, by Osborne, A.C.J.O., Weiler and Charron, JJ.A., of the Ontario Court of Appeal. Osborne, A.C.J.O., released the following decision for the court on August 14, 2000.