Moore v. Wienecke et al.,

• Jurisdiction: Ontario
• Judge: MacPherson, Armstrong and Epstein, JJ.A.
• Neutral Citation: 2008 ONCA 162
• Citation: 2008 ONCA 162,(2008), 234 O.A.C. 39 (CA),90 OR (3d) 463,290 DLR (4th) 509,[2008] CarswellOnt 1185,234 OAC 39,(2008), 234 OAC 39 (CA),290 D.L.R. (4th) 509,234 O.A.C. 39,90 O.R. (3d) 463
• Date: 10 January 2008
• Court: Court of Appeal (Ontario)

Moore v. Wienecke (2008), 234 O.A.C. 39 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. MR.042

Benjamin Garfield Moore, Geraldine Moore, William Moore, and Dillon Moore and Derek Moore minors by their Litigation Guardian Benjamin Garfield Moore (plaintiffs/respondent) v. Peter E. Wienecke and Dunkerron Elevators Inc. (defendants/respondent) and ING Insurance Company of Canada, added as a third party under the Provisions of s. 258(14) of the Insurance Act, R.S.O. 1990, c. I-8 (third party)

Benjamin Garfield Moore, Geraldine Moore, William Moore, and Dillon Moore and Derek Moore minors by their Litigation Guardian Benjamin Garfield Moore (plaintiffs/respondent) v. George Hayik (defendant/appellant)

(C44945; 2008 ONCA 162)

Indexed As: Moore v. Wienecke et al.

Ontario Court of Appeal

MacPherson, Armstrong and Epstein, JJ.A.

March 6, 2008.

Summary:

In September 1998, the plaintiff was involved in a motor vehicle accident with a tractor trailer driven by the defendant Wienecke. In February 2002, the plaintiff was involved in an accident with a car driven by the defendant Hayik. The plaintiff brought actions against both defendants for damages for injuries suffered. Jury notices were issued. The actions were heard in a blended trial before a jury.

The Ontario Superior Court, in a decision reported at [2006] O.T.C. 50, discharged the jury after several days of testimony. The court found the plaintiff 100% responsible for the 1998 accident and Hayik 100% liable for the 2002 accident. The court awarded damages to the plaintiff relating to the 2002 accident of, inter alia, $349,423.69 for future loss of income and $31,500 for future maintenance. The court awarded the plaintiff costs of his action against Hayik fixed at $134,423.69. The court also made a Sanderson order requiring Hayik to pay the plaintiff's costs of $109,727.81 in the plaintiff's unsuccessful action relating to the 1998 accident. Hayik appealed.

The Ontario Court of Appeal dismissed the appeal on all issues except the Sanderson costs order. The court set aside the Sanderson component of the costs order and substituted an order that the plaintiff pay the costs of the defendants (fixed at $109,727.81) in his unsuccessful action relating to the 1998 accident.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - In September 1998, the plaintiff was involved in a motor vehicle accident with a tractor trailer driven by the defendant Wienecke - In February 2002, the plaintiff was involved in an accident with a car driven by the defendant Hayik - The plaintiff brought actions against both defendants for damages for injuries suffered - The actions were heard in a blended trial - The trial judge found the plaintiff 100% responsible for the 1998 accident and Hayik 100% liable for the 2002 accident - The trial judge awarded damages to the plaintiff relating to the 2002 accident of, inter alia, $31,500 for future care and maintenance - Hayik appealed, asserting that the trial judge erred by awarding the plaintiff that amount where the plaintiff had received assistance gratuitously from family members since his serious motorcycle accident in 1991 and this assistance was likely to continue - The Ontario Court of Appeal dismissed the appeal - The fact that the plaintiff's family had helped him with the tasks of daily living in the past, and might well continue to do so, was irrelevant - See paragraphs 34 to 36.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - In September 1998, the plaintiff was involved in a motor vehicle accident with a tractor trailer driven by the defendant Wienecke - In February 2002, the plaintiff was involved in an accident with a car driven by the defendant Hayik - The plaintiff brought actions against both defendants for damages for injuries suffered - The actions were heard in a blended trial - The trial judge found the plaintiff 100% responsible for the 1998 accident and Hayik 100% liable for the 2002 accident - The trial judge awarded damages to the plaintiff relating to the 2002 accident of, inter alia, $349,423.69 for future loss of income - Hayik appealed, asserting that the plaintiff's residual earning capacity was severely diminished - The Ontario Court of Appeal dismissed the appeal - The trial judge's conclusion regarding the effect of the 2002 accident on the plaintiff's residual employability was based on ample expert evidence - Moreover, the trial judge's conclusion that the plaintiff's post-accident employment was "benevolent" and, therefore, uncertain was also supported by the evidence - There was no basis for interfering with her ultimate conclusion that "I would put his remaining earning capacity at about 10% of what it was following the 1991 [motorcycle] accident" and with her calculation of damages for future loss of income flowing therefrom - See paragraphs 32 and 33.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - [See Damage Awards - Topic 492 ].

Damages - Topic 1567

General damages - General damages for personal injury - Future care and treatment - [See Damage Awards - Topic 489 ].

Practice - Topic 5100

Juries and jury trials - Right to a jury - General (incl. when jury trial appropriate) - In September 1998, the plaintiff was involved in a motor vehicle accident with a tractor trailer driven by the defendant Wienecke - In February 2002, the plaintiff was involved in an accident with a car driven by the defendant Hayik - The plaintiff brought actions against both defendants for damages for injuries suffered - Jury notices were issued - The actions were heard in a blended trial before a jury - The trial judge discharged the jury after several days of testimony - Hayik appealed, asserting that the trial judge erred by discharging the jury - The Ontario Court of Appeal dismissed the appeal - The trial judge's exercise of her discretion to strike the jury was far removed from being arbitrary, capricious or unreasonable - The trial judge explicitly recognized that the right to a jury trial was an important substantive right - She identified and gave weight to the arguments in favour of keeping the jury, including her own favourable impression of the jury's performance during the trial - However, the trial judge struck the jury for two reasons: first, the complexity of dealing with the plaintiff who had suffered many injuries from five motor vehicle accidents, a fall down stairs, a fall off a ladder, a slip and fall accident, and back strain from gardening, all over approximately a 20-year period; and, second, the fact that the plaintiff had suffered a serious brain injury in a motorcycle accident several years before the 1998 and 2002 motor vehicle accidents, which would make it very difficult for a jury to assess his credibility - The trial judge's decision was reasonable - See paragraphs 19 to 24.

Practice - Topic 5170

Juries and jury trials - Conduct of jury trial - Discharge of jury during trial - [See Practice - Topic 5100 ].

Practice - Topic 7155

Costs - Party and party costs - Liability for party and party costs - Bullock order or Sanderson order - Where success divided - In September 1998, the plaintiff was involved in a motor vehicle accident with a tractor trailer driven by the defendant Wienecke - In February 2002, the plaintiff was involved in an accident with a car driven by the defendant Hayik - The plaintiff brought actions against both defendants for damages for injuries suffered - The actions were heard in a blended trial - The trial judge found the plaintiff 100% responsible for the 1998 accident and Hayik 100% liable for the 2002 accident - The court awarded the plaintiff costs of his action against Hayik fixed at $134,423.69. The court also made a Sanderson order requiring Hayik to pay the plaintiff's costs of $109,727.81 in the plaintiff's unsuccessful action relating to the 1998 accident - The Ontario Court of Appeal set aside the Sanderson component of the costs order and substituted an order that the plaintiff pay the costs of the defendants (fixed at $109,727.81) in his unsuccessful action relating to the 1998 accident - While it was clearly reasonable for the two actions to be tried together, the other factors did not justify the trial judge exercising her discretion to issue a Sanderson order - Responsibility shifting did not happen in this blended trial - It was not Hayik's decision to involve Wienecke in the trial - The causes of action were independent of each other - Finally, the plaintiff was very successful in the blended trial even though he lost the first action completely - There was no unfairness in following the usual rule of requiring him to pay the costs of the action he lost - See paragraphs 37 to 50.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - In September 1998, the plaintiff was involved in a motor vehicle accident with a tractor trailer driven by the defendant Wienecke - In February 2002, the plaintiff was involved in an accident with a car driven by the defendant Hayik - The plaintiff brought actions against both defendants for damages for injuries suffered - The actions were heard in a blended trial - The trial judge found the plaintiff 100% responsible for the 1998 accident and Hayik 100% liable for the 2002 accident - Hayik appealed, asserting that the trial judge applied the wrong legal test for determining causation in a case where there was more than one potential cause for the loss - Hayik submitted that the trial judge applied the "material contribution" test for causation, a test that was significantly narrowed by the Supreme Court of Canada - The Ontario Court of Appeal dismissed the appeal - Although the trial judge did refer to the "material contribution" test, her reasons, read as a whole, were consistent with the leading cases dealing with causation in negligence cases - The trial judge gave careful, and separate, attention to the 2002 accident and the injuries and losses it caused - She carefully reviewed the testimony of a large number of medical witnesses and made conclusions based on their testimony that were consistent with a "but for" analysis - See paragraphs 25 to 30.

Cases Noticed:

King v. Colonial Homes Ltd., [1956] S.C.R. 528, refd to. [para. 19].

Cowles et al. v. Balac et al. (2006), 216 O.A.C. 268; 83 O.R.(3d) 660 (C.A.), refd to. [para. 20].

Hanke v. Resurfice Corp., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333, refd to. [para. 25].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 26].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 26].

Walker Estate et al. v. York Finch General Hospital et al., [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302; 2001 SCC 23, refd to. [para. 26].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 31].

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. 36].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 40].

Times Square Holdings Ltd. v. Shimzu, [2001] B.C.J. No. 2419 (C.A.), refd to. [para. 41].

Cheskin v. Schrage (1986), 10 O.P.C.(2d) 150 (H.C.), refd to. [para. 46].

Babcock v. Archibald (1981), 127 D.L.R.(3d) 77 (Ont. H.C.), refd to. [para. 48].

Babcock v. Carr - see Babcock v. Archibald.

Eichmanis v. Wawanesa Mutual Insurance Co. (2007), 278 D.L.R.(4th) 15 (Ont. C.A.), refd to. [para. 48].

Scarborough Golf and Country Club v. Scarborough (City) et al. (1988), 31 O.A.C. 260; 66 O.R.(2d) 257 (C.A.), refd to. [para. 49].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed. 1987) (Looseleaf), p. 2-108 [para. 37].

Counsel:

Sheldon Gilbert, Q.C. and Shawn Stringer, for the appellant;

David Neill, for the respondent Benjamin Garfield Moore;

Dan Rabinowitz, for the respondent Dunkerron Elevators Inc.

This appeal was heard on January 10, 2008, by MacPherson, Armstrong and Epstein, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by MacPherson, J.A., on March 6, 2008.