Marcoccia v. Gill et al., (2009) 248 O.A.C. 131 (CA)

• Judge: Rosenberg, MacPherson and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 04, 2009
• Jurisdiction: Ontario
• Citations: (2009), 248 O.A.C. 131 (CA);2009 ONCA 317

Marcoccia v. Gill (2009), 248 O.A.C. 131 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. AP.062

Robert Marcoccia, by his Litigation Guardian, Angela Marcoccia (respondent) v. Bhupinder Singh Gill, Purba Furniture Ltd., and Ford Credit Canada Limited (appellant)

(C47528; 2009 ONCA 317)

Indexed As: Marcoccia v. Gill et al.

Ontario Court of Appeal

Rosenberg, MacPherson and Rouleau, JJ.A.

April 20, 2009.

Summary:

The defendant Gill was driving a delivery van which collided with a truck driven by the plaintiff. The delivery van was leased by Gill's employer from Ford Credit Canada Ltd., who were also defendants. Gill and his employer settled with the plaintiff. The action against Ford Credit continued.

The Ontario Superior Court, sitting with a jury, heard the case. The jury concluded that the plaintiff was 39% at fault and Gill was 61% at fault. The jury assessed the plaintiff's damages at $312,000 for pain and suffering, $5,322.73 for past income loss, $1,384,918 for future income loss, and $13,952,064 for future cost of care.

The Ontario Superior Court, in a decision reported at [2007] O.T.C. Uned. O38, awarded the plaintiff costs against Ford Motor Credit consisting of the following: $128,514.44 for disbursements; partial indemnity costs fixed at $7,500 plus applicable GST for costs awarded to the plaintiff in connection with an application that Ford Credit brought for standing to make submissions relating to fee and disbursement issues between the plaintiff and his counsel; and costs of $720,000 plus applicable GST in satisfaction of the remaining fees portion of the plaintiff's costs claims, inclusive of both partial and substantial indemnity components. The fee portion of costs was comprised of $120,000 for the remaining costs on a partial indemnity basis for October 12, 2006 to November 29, 2007 and $600,000 for costs on a substantial indemnity basis ($400,000 x 1.5) for the period from January 6 to November 29, 2007. Ford Credit appealed the jury's findings respecting apportionment of liability and damages for future cost of care. It also sought leave to appeal the trial judge's costs award of $720,000 and, if leave was granted, sought a reduction of that award.

The Ontario Court of Appeal dismissed the appeal respecting liability and damages. The court reduced the costs award from $720,000 to $657,551.50. The plaintiff was entitled to his costs of the appeal fixed at $25,000, inclusive of disbursements and GST.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - The plaintiff was in an accident - He was 20 years old and had just finished grade 12 - He suffered serious injuries to the frontal and temporal lobes of his brain - As a result, the plaintiff suffered from diminished executive functioning and enduring physical, psychological, behavioural, and emotional impairments that impeded his ability to lead a normal life - The jury assessed the plaintiff's damages for future cost of care at $13,952,064, roughly 96% of the highest schedule of future care costs claimed by the plaintiff - This award envisioned the plaintiff living independently with provision for extensive support and services - Two other situations were considered but rejected by the jury: 1) residence and treatment at a residential rehabilitation facility, which would have cost $9,589,302 but had an 11 year waiting list (an option advanced by the plaintiff); and 2) a semi-independent living arrangement preceded by a two year period of intensive rehabilitation in a rehabilitation facility and a one year transition period in a semi-independent living environment, which would have cost $2,173,000 (an option advanced by the defendant) - The Ontario Court of Appeal found no basis to interfere with the jury's assessment of future care costs - See paragraphs 27 to 31.

Practice - Topic 5191

Juries and jury trials - Charge to jury - Failure to object to - [See second Practice - Topic 5197 and Practice - Topic 9280 ].

Practice - Topic 5193.1

Juries and jury trials - Charge to jury - Respecting causation - [See Practice - Topic 9280 ].

Practice - Topic 5197

Juries and jury trials - Charge to jury - Respecting assessment of damages - The jury assessed the plaintiff's damages for future cost of care at $13,952,064, roughly 96% of the highest schedule of future care costs claimed by the plaintiff - On appeal, a defendant claimed that the trial judge's instructions to the jury respecting future care costs were inadequate and erroneous - The Ontario Court of Appeal disagreed - While the trial judge did not expressly delineate the meaning of reasonableness, he instructed the jury on multiple occasions that their findings needed to be grounded in "evidence [they] accept as being reasonable." - Moreover, he emphasized that "[t]he award must be fair to all parties" and that "[f]airness to the parties is achieved by assuring that the claims are legitimate and justifiable" on the evidence - The trial judge's charge was not inadequate for failing to more comprehensively "unpack" what reasonableness entailed - See paragraph 32.

Practice - Topic 5197

Juries and jury trials - Charge to jury - Respecting assessment of damages - The jury assessed the plaintiff's damages for future cost of care at $13,952,064, roughly 96% of the highest schedule of future care costs claimed by the plaintiff - On appeal, a defendant claimed that the trial judge's instructions to the jury respecting future care costs were inadequate and erroneous - He submitted that the trial judge erroneously failed to instruct the jury that they were not obligated simply to accept the scenarios advanced by the plaintiff; instead, the trial judge should have expressly instructed the jury that they were permitted to combine scenarios - The Ontario Court of Appeal rejected the submission - The defendant, in effect, was submitting that the trial judge had a duty to put to the jury a position that he was not only required to devise on his own, but which was also not advanced or put to the jury by either party - This argument was untenable - Further, although not determinative, the absence of any objection to the jury charge by counsel for the defendant at trial supported the conclusion that the charge was not erroneous in this regard - See paragraphs 33 to 35.

Practice - Topic 5199

Juries and jury trials - Charge to jury - Respecting apportionment of fault - [See Practice - Topic 9280 ].

Practice - Topic 7020.1

Costs - Party and party costs - Entitlement to - Successful party - Quantum - A trial judge awarded costs against the remaining defendant of $720,000 plus applicable GST in satisfaction of the remaining fees portion of the plaintiff's costs claims - It included $120,000 for partial indemnity and $600,000 for substantial indemnity costs - Civil Procedure Rule 1.03 provided that "'substantial indemnity costs' mean costs awarded in an amount that is 1.5 times what would otherwise be awarded in accordance with Part I of Tariff A, and 'on a substantial indemnity basis' has a corresponding meaning. ('dépens d'indemnisation substantielle')" - The Ontario Court of Appeal held that the substantial indemnity component was excessive and ought to be reduced, but stated that "in so concluding, we do not wish to be taken as challenging the definition of substantial indemnity costs in rule 1.03 ... or the trial judge's decision to apply it. However, we note that where the application of rule 1.03 leads to substantial indemnity costs that are equal to or greater than a full indemnity award, it necessarily follows that the partial indemnity costs have been assessed too generously. Therefore, the effect of rule 1.03 is to limit the trial judge's discretion in assessing partial indemnity costs to something less than two-thirds of the solicitor's full indemnity costs." - See paragraph 53.

Practice - Topic 7423

Costs - Solicitor and client costs - Measure of solicitor and client costs - Relevant considerations - General - [See Practice - Topic 7020.1 ].

Practice - Topic 7424.1

Costs - Solicitor and client costs - Measure of solicitor and client costs - Relevant considerations - Contingent fee agreement - A trial judge awarded costs against a defendant including $600,000 substantial indemnity costs - The Ontario Court of Appeal stated that "The $559,489 originally sought by the [plaintiff] represented a reasonable substantial indemnity award based on rates derived from the hourly rates normally charged by the solicitors who worked on the file. These rates generally reflect what the defendant reasonably expects to be the basis for the award of costs. The fact that the contingency agreement provides for significantly higher fees in the event that the plaintiff is successful is of little relevance as the higher fee is, in effect, a form of risk premium." - See paragraph 51.

Practice - Topic 9280

Appeals - Appeal from jury verdict - Review of jury charge - An appellant alleged that a jury's apportionment of liability was perverse and that this resulted from a deficient charge to the jury by the trial judge respecting liability - The Ontario Court of Appeal rejected the allegations - The charge respecting liability was comprehensive, clear, fair, and balanced - There was no "material misdirection or non-direction" by the trial judge that warranted appellate intervention - Further, although not determinative, the absence of any objections to the charge by an experienced trial counsel supported this assessment - The trial judge's instructions to the jury respecting liability provided genuine assistance, not confusion, in a difficult case - See paragraphs 23 to 26.

Torts - Topic 418

Negligence - Motor vehicle - Rules of the road - Right of way - Duty to yield - [See Torts - Topic 6633 ].

Torts - Topic 6610

Defences - Contributory negligence - Particular cases - Motor vehicle accidents - [See Torts - Topic 6633 ].

Torts - Topic 6633

Defences - Contributory negligence - Particular cases - Failure to keep proper lookout - An accident took place at a right-angled intersection of Rexdale and Humberwood - Rexdale ran east and west and Humberwood ran north and south - Rexdale was a through street - Humberwood ended at Rexdale at a "T" intersection - The plaintiff was travelling west along Rexdale, intending to continue on through the intersection - He was in the left-most lane as he neared the intersection at Humberwood - As he approached the intersection, the traffic light turned amber - He initially slowed down, but then sped up over the speed limit - At this time, Gill had entered the intersection on the amber light and was stopped in the left turn lane waiting to turn left from Rexdale onto Humberwood - As the light turned red, Gill started to turn slowly into the intersection - He did not notice the plaintiff approach the intersection or run the red light - An instant later, the plaintiff's car collided with Gill's van - A jury concluded that Gill was 61% liable for the accident and the plaintiff was 39% liable - The Ontario Court of Appeal dismissed an appeal from liability - Both drivers committed major blunders that led directly to the disastrous accident and the plaintiff's injuries - The plaintiff ran a red light and Gill did not keep a proper lookout - Further, the jury's apportionment of liability did not meet the standard for review of being "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" - See paragraphs 18 to 22.

Cases Noticed:

Snushall v. Fulsang et al. (2005), 202 O.A.C. 297; 78 O.R.(3d) 142 (C.A.), refd to. [para. 20].

Olmstead v. Vancouver-Fraser Park District, [1975] 2 S.C.R. 831; 3 N.R. 326, refd to. [para. 20].

McIntyre v. Grigg et al. (2006), 217 O.A.C. 217; 83 O.R.(3d) 161 (C.A.), refd to. [para. 20].

Kerr et al. v. Loblaws Inc. (2007), 224 O.A.C. 56 (C.A.), refd to. [para. 21].

Zurevinski v. P. & G. Construction Co. (1987), 15 M.V.R.(2d) 281 (Ont. Dist. Ct.), consd. [para. 24].

Chatten v. Armstrong, [1968] 1 O.R. 497 (C.A.), refd to. [para. 24].

Sandhu v. Wellington Place Apartments et al. (2008), 234 O.A.C. 200 (C.A.), refd to. [para. 27].

Jones et al. v. Niklaus (2008), 240 O.A.C. 43 (C.A.), refd to. [para. 29].

Deshane et al. v. Deere & Co. (1993), 65 O.A.C. 275; 15 O.R.(3d) 225 (C.A.), refd to. [para. 29].

Jack v. Kirkrude et al. (2002), 155 O.A.C. 28 (C.A.), refd to. [para. 29].

Walker v. Ritchie et al., [2006] 2 S.C.R. 428; 353 N.R. 265; 217 O.A.C. 374, refd to. [para. 50].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure Rules (Ont.).

Rules of Civil Procedure (Ont.), rule 1.03 [para. 45, footnote 2].

Counsel:

Alan J. Lenczner, Nina Bombier, and Myron W. Shulgan, for the appellant;

Earl A. Cherniak, Kirk F. Stevens, and Nancy Ralph, for the respondent.

This appeal was heard on February 4, 2009, by Rosenberg, MacPherson and Rouleau, JJ.A., of the Ontario Court of Appeal. MacPherson and Rouleau, JJ.A., delivered the following decision for the court on April 20, 2009.