Murray v. Ont., (2002) 166 O.A.C. 83 (CA)

JudgeGoudge, MacPherson and Armstrong, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateNovember 08, 2002
JurisdictionOntario
Citations(2002), 166 O.A.C. 83 (CA)

Murray v. Ont. (2002), 166 O.A.C. 83 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. NO.018

Brenda Rene Murray and Donna Murray, Glenn Murray and Kelly Lynn Murray (plaintiffs/respondents) v. Her Majesty the Queen in right of the Province of Ontario (defendant/appellant)

(C36102)

Indexed As: Murray v. Ontario

Ontario Court of Appeal

Goudge, MacPherson and Armstrong, JJ.A.

November 8, 2002.

Summary:

The trial judge found Ontario 70% liable for the injuries suffered by the plaintiff in a motor vehicle accident. The plaintiff was held 30% liable. Ontario appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 5010

Conduct of trial - General principles - Power of judge to intervene - The trial judge intervened to prevent defence questioning of the hierarchical superior of a highway patrolman as to whether the patrolman had followed correct snow and ice removal procedures the morning of a motor vehicle accident that left the plaintiff a quadriplegic - There followed several "somewhat testy exchanges" between the trial judge and the defence counsel - The Ontario Court of Appeal held: "Undoubtedly, the atmosphere created by the testy exchanges between an experienced trial counsel and an experienced trial judge did nothing to enhance the image of the administration of justice. While the trial judge must bear considerable responsibility for this, taken together, his interventions were not so one-sided or without reason that a reasonable and fully informed observer would conclude that the trial judge had lost his judicial impartiality." - See paragraphs 7 to 17.

Practice - Topic 7061

Costs - Party and party costs - Counsel fees - Increased or decreased fee (incl. premium) - The trial judge found Ontario 70% liable for the injuries suffered by the plaintiff in a motor vehicle accident - The plaintiff was held 30% liable - The trial judge awarded the plaintiff's counsel a costs premium because of the financial risk undertaken by the plaintiff's counsel in taking the trial and what he viewed as the excellent result achieved - The Ontario Court of Appeal quashed the costs premium award - Risks had been significantly reduced by an agreement on damages - Also, the 70% result was good but not extraordinary - See paragraphs 18 to 21.

Practice - Topic 9229

Appeals - New trials - Grounds - Interference by trial judge - [See Practice - Topic 5010 ].

Cases Noticed:

Ingles v. Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298, refd to. [para. 6].

Lennox v. Arbor Memorial Services Inc. (2001), 151 O.A.C. 297 (C.A.), refd to. [para. 16].

Counsel:

David Burstein and Clive Elkin, for the appellant;

Desmond H. Dixon and Sloan Mandel, for the respondents.

This appeal was heard on September 4, 2002, by Goudge, MacPherson and Armstrong, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was released on November 8, 2002, by Goudge, J.A.

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