McLean v. Knox et al., 2013 ONCA 357

• Judge: Rosenberg, Gillese and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 18, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 357;(2013), 306 O.A.C. 203 (CA)

McLean v. Knox (2013), 306 O.A.C. 203 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. MY.039

Kyle McLean (plaintiff/respondent/appellant by way of cross appeal) v. Matthew Edward Knox, Judith Knox, 1197584 Ontario Inc. carrying on business as Finnigan's Roadhouse and The Personal Insurance Company (defendants/appellant/respondent by way of cross appeal) and Pembridge Insurance Company (statutory third party)

(C54865; 2013 ONCA 357)

Indexed As: McLean v. Knox et al.

Ontario Court of Appeal

Rosenberg, Gillese and Rouleau, JJ.A.

May 31, 2013.

Summary:

Knox lost control of the car he was driving. The plaintiff passenger was injured. The plaintiff sued Knox, as the driver, and Finnigan's bar, on the basis that it had over-served Knox and the plaintiff prior to the accident. Finnigan's agreed to settle liability on the basis that it would admit that it was "at least 1% liable" and the plaintiff would limit his damages claim to a maximum of $1 million. It was further agreed that the trial would proceed to determine the plaintiff's damages, the degree of the plaintiff's contributory negligence, and Finnigan's liability. The jury attached the following degrees of negligence to each party: Knox 84%, Finnigan's 1%, and the plaintiff 15%. The jury assessed the plaintiff's damages as follows: $13,720 for past income loss; $52,600 for pain, suffering and loss of enjoyment of life; $0 for future income loss; and $3,000 for future care costs. The plaintiff brought a motion asking the trial judge to refrain from entering a judgment of $0 for loss of future income, as determined by the jury, and to assess those damages himself. The trial judge granted the motion and awarded the plaintiff $117,200 for loss of future income (see [2011] O.T.C. Uned. 7298). The trial judge also awarded him costs of $150,000, plus disbursements of $80,000 and HST. Finnigan's was ordered to pay damages of $141,378, plus the costs award. Finnigan's appealed, arguing that the trial judge erred: (1) in refusing to enter judgment in accordance with the jury's verdict on the claim for future income loss and in assessing those damages himself; and (2) in his costs award. The plaintiff cross-appealed. If the appeal was allowed, he asked that the court set aside the jury's verdict and order a new trial on all issues other than Finnigan's admitted liability, on the basis of: (i) the improper conduct of defence counsel at trial, which he contended rendered the trial unfair; and/or (ii) the trial judge's failure to strike the jury, given the complexity of the issues and defence counsel's conduct at trial.

The Ontario Court of Appeal allowed the appeal in part and varied the judgment to provide $0 for future income loss. The court made no change to the costs award at trial. The court allowed the cross-appeal in part. The court would determine the apportionment of liability for the plaintiff's damages in accordance with the resolution of that issue by the parties, failing which, following receipt of their written submissions on the matter.

Damages - Topic 819

Assessment - General - Powers of trial judge re assessment of damages by jury - After the jury was discharged, the plaintiff brought a motion asking the trial judge to refrain from entering a judgment of $0 for loss of future income, as determined by the jury, and to assess those damages himself - The trial judge granted the motion and awarded the plaintiff $117,200 for loss of future income - The Ontario Court of Appeal stated that "At common law, a trial judge can disregard the answers which form the jury verdict only: (i) if there is no evidence to support the jury finding; or (ii) the jury gives an answer to a question which cannot in law provide a foundation for a judgment ... Further, rule 52.08 of the Rules of Civil Procedure, ... sets out certain conditions under which a trial judge can order that an action be retried or dismissed ... neither the common law test nor the conditions in rule 52.08 were met. Consequently, the trial judge was not entitled to disregard the jury's verdict on future income loss" - In respect of the common law, it could not be said that there was no evidence to support the jury verdict of $0 for future income loss - As for rule 52.08(1), none of the conditions set out in (a) to (c) were in play - See paragraphs 19 to 33.

Practice - Topic 5170

Juries and jury trials - Conduct of jury trial - Discharge of jury during trial - The plaintiff brought a cross-appeal asking that the court set aside the jury's verdict and order a new trial on all issues (other than the admitted liability of one defendant) on the basis of the trial judge's failure to strike the jury given the complexity of the issues and defence counsel's conduct at trial - The Ontario Court of Appeal dismissed this ground of the cross-appeal - The court stated that "The trial judge was in the best position to assess the impugned conduct and whether it impaired trial fairness. In his view, the conduct was not so egregious as to require that the jury be struck or that costs sanctions be imposed. Considerable deference is owed by this court to that assessment: ... I see no basis on which to overturn that assessment. As for the contention that the complexity of the case warranted the striking of the jury, I see no basis for interfering with the trial judge's exercise of discretion in refusing to do so. The trial judge was guided by the legal principle that the substantive right to a trial by jury is not to be interfered with, absent just cause: ... He fully considered the matter but was satisfied that the case was not too complex for a jury" - See paragraphs 42 to 47.

Practice - Topic 5181

Juries and jury trials - Verdicts - Questions for jury - Knox lost control of his car - The plaintiff passenger was injured - The plaintiff sued Knox, as the driver, and Finnigan's bar, on the basis that it had over-served alcohol to Knox and the plaintiff prior to the accident - A jury attached degrees of negligence to each of Knox, Finnigan's and the plaintiff and assessed the plaintiff's damages - On appeal, the Ontario Court of Appeal held that the questions put to the jury on apportionment of liability were flawed in law - The court stated, inter alia, that "the jury should have been asked: (1) to apportion liability for causing or contributing to the accident between the driver, for driving while intoxicated, and the commercial host, for over-serving the driver; and (2) to apportion liability for causing or contributing to the plaintiff's damages among the driver, for driving while intoxicated, the plaintiff, for accepting a ride from the intoxicated driver, and the commercial host, for over-serving both the driver and the plaintiff. The jury was not asked to apportion liability for the accident. ... in light of Pilon #1 that failure was an error. In respect of the apportionment of liability for the plaintiff's damages, while the intent of the jury questions was to have the jury allocate responsibility among Knox, Finnigan's, and the plaintiff, in my view, the questions are defective" - See paragraphs 67 to 69.

Practice - Topic 5181

Juries and jury trials - Verdicts - Questions for jury - Knox lost control of his car - The plaintiff passenger was injured - The plaintiff sued Knox, as the driver, and Finnigan's bar, on the basis that it had over-served alcohol to Knox and the plaintiff prior to the accident - A jury attached degrees of negligence to each of Knox, Finnigan's and the plaintiff and assessed the plaintiff's damages - On appeal, the Ontario Court of Appeal held that the questions put to the jury on apportionment of liability were flawed in law - Question 4 had asked the jury to state in percentages the degree of negligence that it attached to each party, "[g]iven the deemed admission of liability by the Defendant Matthew Knox, and the admission by the Defendant Finnigan's of 1% liability" - That question was simply wrong - It was explicitly premised on Finnigan's having admitted 1% liability whereas Finnigan's admitted at least 1% liability - It was further wrong as it did not direct the jury to apportion Finnigan's liability for the plaintiff's damages flowing from having over-served Knox and from having over-served the plaintiff - The questions were in breach of the agreement between the plaintiff and Finnigan's, in which Finnigan's agreed to admit that it was at least 1% liable and that its further liability would be determined at trial - See paragraphs 71 to 74.

Practice - Topic 5181

Juries and jury trials - Verdicts - Questions for jury - Knox lost control of his car - The plaintiff passenger was injured - The plaintiff sued Knox, as the driver, and Finnigan's bar, on the basis that it had over-served alcohol to Knox and the plaintiff prior to the accident - A jury attached degrees of negligence to each of Knox, Finnigan's and the plaintiff and assessed the plaintiff's damages - On appeal, the Ontario Court of Appeal held that the questions put to the jury on apportionment of liability were flawed in law - As a result of the errors in the jury questions, coupled with the flaws in the jury instructions, the court had serious doubt as to the validity of the jury verdicts on the apportionment of liability for the plaintiff's damages - With respect to the remedy, the court did not accede to the plaintiff's argument that a new trial should be ordered on everything except Finnigan's admitted liability - The accident took place eight years earlier and the costs involved in a new trial would be significant - The interests of justice augured against ordering a new trial - Instead, the court should perform the apportionment task - The court would determine the apportionment of liability for the plaintiff's damages in accordance with the resolution of that issue by the parties, failing which, following receipt of their written submissions on the matter - See paragraphs 83 to 93.

Practice - Topic 5186

Juries and jury trials - Verdicts - Variation of verdict by trial judge - [See Damages - Topic 819 ].

Practice - Topic 5190.1

Juries and jury trials - Charge to jury - Questions posed to jury - [See all Practice - Topic 5181 ].

Practice - Topic 5199

Juries and jury trials - Charge to jury - Respecting apportionment of fault - [See third Practice - Topic 5181 ].

Practice - Topic 7020

Costs - Party and party costs - Entitlement to - Successful party - General principles - Knox lost control of his car - The plaintiff passenger was injured - The plaintiff sued Knox, as the driver, and Finnigan's bar, on the basis that it had over-served alcohol to Knox and the plaintiff prior to the accident - The jury attached the following degrees of negligence to each party: Knox 84%, Finnigan's 1%, and the plaintiff 15% - The jury assessed the plaintiff's damages as follows: $13,720 for past income loss; $52,600 for pain, suffering and loss of enjoyment of life; $0 for future income loss; and $3,000 for future care costs - The plaintiff asked the trial judge to refrain from entering a judgment of $0 for loss of future income, as determined by the jury, and to assess those damages himself - The trial judge granted the motion and awarded the plaintiff $117,200 for loss of future income - The trial judge also awarded him costs of the trial of $150,000, plus disbursements of $80,000 and HST - Finnigan's was ordered to pay damages of $141,378, plus the costs award - Finnigan's appealed, arguing, inter alia, that the trial judge erred in not ordering some costs of the trial in its favour - The Ontario Court of Appeal disagreed - The court stated, inter alia, "The plaintiff was successful at trial. There was no rule 49.10 offer. He is presumptively entitled to his costs unless there are special circumstances to deprive him of costs. The trial judge found that no such circumstances existed. I agree. Even factoring in the result of the appeal, I see no basis on which to interfere with the costs award" - See paragraphs 34 to 40.

Torts - Topic 4195

Suppliers of services - Alcohol - Duty of server (commercial hosts) - [See first Practice - Topic 5181 ].

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - [See first Practice - Topic 5181 ].

Torts - Topic 7382

Joint and concurrent tortfeasors - Contribution between tortfeasors - Apportionment of fault - General - [See first Practice - Topic 5181 ].

Cases Noticed:

Hill v. Church of Scientology of Toronto and Manning (1992), 7 O.R.(3d) 489 (Gen. Div.), affd. (1994), 71 O.A.C. 161; 18 O.R.(3d) 385 (C.A.), affd. [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 20].

Teskey v. Toronto Transit Commission (2003), 3 C.P.C.(6th) 181 (Ont. Sup. Ct.), refd to. [para. 25].

Lang v. McKenna (2000), 135 O.A.C. 304 (C.A.), leave to appeal refused (2001), 271 N.R. 195; 150 O.A.C. 198 (S.C.C.), refd to. [para. 30].

Jordan v. Hall (1987), 17 C.P.C.(2d) 285 (Ont. Dist. Ct.), refd to. [para. 42].

Typis (Litigation Guardian of) v. Lavigne (2009), 73 C.P.C.(6th) 346 (Ont. Sup. Ct.), refd to. [para. 42].

Groen Estate v. Harris, [2010] O.A.C. Uned. 490; 2010 ONCA 621, refd to. [para. 45].

Graham et al. v. Rourke (1990), 40 O.A.C. 301; 75 O.R.(2d) 622 (C.A.), refd to. [para. 46].

Jordan House Ltd. v. Menow, [1974] S.C.R. 239, refd to. [para. 50].

Pilon v. Janveaux et al. (2005), 203 O.A.C. 345 (C.A.), consd. [para. 51].

Pilon v. Janveaux et al. (2006), 211 O.A.C. 19 (C.A.), refd to. [para. 64].

Fiddler v. Chiavetti et al. (2010), 260 O.A.C. 363; 317 D.L.R.(4th) 385; 2010 ONCA 210, refd to. [para. 86].

Sullivan Estate et al. v. Bond et al. (2001), 148 O.A.C. 86; 55 O.R.(3d) 97 (C.A.), refd to. [para. 91].

Statutes Noticed:

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

Rules of Civil Procedure (Ont.), rule 52.08 [para. 21].

Counsel:

Robert S. Franklin, for the appellant/respondent by way of cross-appeal;

William J. Sammon and Amanda Estabrooks, for the respondent/appellant by way of cross-appeal.

This appeal and cross-appeal were heard on March 18, 2013, before Rosenberg, Gillese and Rouleau, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Gillese, J.A., and was released on May 31, 2013.