Rizzi v. Mavros et al., (2008) 236 O.A.C. 4 (CA)

• Judge: Laskin, Lang and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 30, 2007
• Jurisdiction: Ontario
• Citations: (2008), 236 O.A.C. 4 (CA);2008 ONCA 172

Rizzi v. Mavros (2008), 236 O.A.C. 4 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. AP.096

Debbie Rizzi and Delio Rizzi (plaintiffs/appellant) v. George Mavros and Thomas Partalas (defendants/respondents)

(C44688; 2008 ONCA 172)

Indexed As: Rizzi v. Mavros et al.

Ontario Court of Appeal

Laskin, Lang and Juriansz, JJ.A.

March 11, 2008.

Summary:

Rizzi injured her leg attempting to move some metal sheets that were stored in the laundry/storage room of her apartment building. The apartment building was owned by the defendants. Rizzi later developed fibromyalgia. Rizzi and her husband sued the defendants for damages. Causation respecting the fibromyalgia was a central issue at trial. The jury found that Rizzi's fibromyalgia was caused or materially contributed to by the laundry/storage room incident. They assessed substantial damages, but found Rizzi to be 75% contributorily negligent. Rizzi appealed the quantum of general non-pecuniary damages and the assessment of contributory negligence. She requested a variation of the judgment or, alternatively, a new trial. The appeal was perfected in January 2007 and scheduled to be heard in July 2007. In February and April 2007, decisions from the Supreme Court of Canada and the Ontario Court of Appeal, respectively, were issued respecting causation. On reviewing the decisions, the defendants' counsel immediately sought and received instructions to cross-appeal on the issue of causation. The defendants sought leave for an extension of time to cross-appeal on the grounds that the trial judge erred in his instruction to the jury respecting the law of causation.

The Ontario Court of Appeal, per Gillese, J.A., in a decision reported at 224 O.A.C. 293, allowed the motion in the interest of justice, but ordered costs to Rizzi in the amount of $4,000. The appeal proceeded.

The Ontario Court of Appeal, Laskin, J.A., dissenting in part, allowed the appeal in part, by increasing general damages and reducing the costs of the trial awarded to the defendants.

Damage Awards - Topic 11

Injury and death - General - Continuing pain (incl. fibromyalgia, myofascial and chronic pain syndrome) - Rizzi, a 32 year old dental hygienist, scraped her right shin when she attempted to extricate her leg from some metal sheets that fell on her - She suffered severe pain, which progressed into a regional pain in her right lower leg, and eventually into disabling fibromyalgia - She was no longer able to work - The medical evidence called by Rizzi indicated that she was "quite significantly impaired" and that her condition would likely get worse with age - She testified that she had led a full and satisfying life before the accident, including active participation in sports - She attributed all her post-accident difficulties to the injury to her shin - A jury awarded Rizzi substantial damages, including $41,000 for general damages - The Ontario Court of Appeal increased the award for general damages to $80,000 - See paragraphs 65 to 72.

Damage Awards - Topic 145

Injury and death - Leg injuries - Lacerations and soft tissue injuries - [See Damage Awards - Topic 11 ].

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - The Ontario Court of Appeal held that a trial judge erred in instructing the jury to assess the plaintiff's non-pecuniary damages on a scale using the upper limit or cap as a maximum - The court stated that, assuming that it was appropriate to instruct a jury on the cap, and recognizing that such an instruction runs the risk of a direct comparison between the damages in the particular case with those that merit an award at the cap, a trial judge had to explain to the jury that such a comparison was not appropriate - In particular, the trial judge had to explain that the cap was not to be seen as the upper end of a range of damages awards, but rather that the cap was established for the policy reasons in Andrews v. Grand & Toy Alberta Ltd. (SCC) relating to the heavy financial burden that otherwise would result from excessive awards - In these circumstances, it would be wrong to use the cap to compare a particular plaintiff's injuries to that of a person entitled to the cap - Further, a jury told about the cap generally also had to be told that its assessment of pecuniary damages was paramount, because it was those damages that gave the plaintiff the funds to compensate for lost income and to provide for future care - In this case, the jury was not instructed on the policy reasons for the cap and was told to use the cap as a scale and to compare the plaintiff's injuries to those of a young quadriplegic - See paragraphs 4 and 24 to 36.

Practice - Topic 8806

Appeals - General principles - Duty of appellate court regarding damage awards by a jury - Rizzi injured her leg while attempting to move metal sheets that her landlord had left blocking Rizzi's storage locker in the laundry/storage room - She sued for damages - The jury assessed substantial damages, including $41,000 for general damages, but found Rizzi to be 75% contributorily negligent - The Ontario Court of Appeal held that the trial judge erred in instructing the jury to assess Rizzi's general damages on a scale using the upper limit or cap as a maximum - The erroneous instruction regarding the cap would ordinarily require a new trial - However, in this case, the jury award indicated that the jury accepted Rizzi's credibility - Since this made an assessment of the extent of her pain and suffering possible, the court declined to order a new trial and substituted its own assessment of damages as permitted under s. 119 of the Courts of Justice Act - Where the incident occurred more than 12 years ago, memories would be stale, medical records might no longer be available and a new trial might not be feasible - In addition, the costs of a new trial were simply not merited in the circumstances of this case - Also, the error in this case, while one of law, did not affect the fairness of the trial or its outcome - Rather, the error went solely to the amount of Rizzi's non-pecuniary damages - See paragraphs 58 to 62.

Practice - Topic 9276

Appeals - Appeal from jury verdict - Damage awards - [See Practice - Topic 8806 ].

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - Rizzi injured her leg while attempting to move metal sheets that her landlord had left blocking Rizzi's storage locker in the laundry/storage room - She sued for damages - The jury assessed substantial damages, but found Rizzi to be 75% contributorily negligent - Rizzi challenged the trial judge's instruction to the jury respecting apportionment of fault - She argued that the trial judge's use of the words "but for" in the instruction imported a causation analysis into the instruction, rather than one based on the parties' respective degrees of fault or blameworthiness - The Ontario Court of Appeal stated that a plain reading of s. 3 of the Negligence Act required apportionment based on the "fault or negligence" of each party, rather than on the basis of causation - It would have been preferable if the trial judge had avoided "but for" terminology, which evoked causation principles for those familiar with tort principles - However, a jury was not familiar with tort principles - The challenged charge had to be considered in its context and not subject to abundant parsing - The trial judge specifically instructed the jury to "apportion the degree of fault" - He did not direct the jury about causation in respect of apportionment - The jury would have taken the "but for" reference to refer to the negligence of the parties and not to the causation of the injuries - The question put to the jury was both correctly phrased and specific: "If both plaintiff and defendants are at fault, how do you apportion the degree of fault between the parties?" - The jury had this precise question with it in written form in the jury room - See paragraphs 45 to 53.

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - Rizzi injured her leg while attempting to move metal sheets that her landlord had left blocking Rizzi's storage locker in the laundry/storage room - She sued for damages - The jury assessed substantial damages, but found Rizzi to be 75% contributorily negligent - The jury found that Rizzi was negligent in trying to move the sheets when aware of her own limitations (wrist problem) and in a situation where there was no urgency and where she could have asked for help - The defendants were negligent in failing to restrict access to the room in which the sheets were stored and in failing to warn the tenants that they would not have access to that room - The Ontario Court of Appeal held that, while high, the apportionment of 75% was not outside the range available on the evidence - The jury's findings supported its determination that Rizzi was the author of her own misfortune and that her blameworthiness was greater than that of the defendants - Although another jury may have assessed the degrees of negligence differently, this jury's verdict was entitled to deference - There was no basis to interfere with its conclusion - See paragraphs 54 to 57.

Torts - Topic 6614

Defences - Contributory negligence - Particular cases - Knowledge of defective or dangerous things - [See second Torts - Topic 6603 ].

Torts - Topic 6628

Defences - Contributory negligence - Failure to take preventative or remedial action - [See second Torts - Topic 6603 ].

Torts - Topic 6635

Defences - Contributory negligence - Particular cases - Evidence and proof - Rizzi injured her leg while attempting to move metal sheets that her landlord had left blocking Rizzi's storage locker - She sued for damages - The jury assessed substantial damages, but found Rizzi to be 75% contributorily negligent - Rizzi challenged the trial judge's instruction to the jury respecting contributory negligence - She argued that the the trial judge ought to have instructed the jury to consider whether she subjectively foresaw the consequences of her action, including the mechanism by which the accident would occur and the risk of the injury that she would suffer - The Ontario Court of Appeal rejected the argument - A party was contributorily negligent if she objectively ought to have foreseen that she might injure herself - The objective test was implicit in the trial judge's charge, which included a number of references to the reasonable person and to reasonable care - A reasonably prudent person, by definition, considered whether a course of action might result in harm - Since Rizzi specifically acknowledged that she subjectively appreciated there was a risk of cutting her fingers on the metal sheets while moving them, it was not necessary for the defendants to establish that she also foresaw either the mechanism by which the accident would occur or the nature of the injury that could result - See paragraphs 37 to 44.

Cases Noticed:

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

Pereira v. Hamilton Township Farmers' Mutual Fire Insurance Co. - see 1018202 Ontario Ltd. v. Hamilton Township Farmers' Mutual Fire Insurance Co.

1018202 Ontario Ltd. v. Hamilton Township Farmers' Mutual Fire Insurance Co. (2006), 209 O.A.C. 127 (C.A.), refd to. [para. 22].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 23].

ter Neuzen v. Korn - see Neuzen v. Korn.

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 25].

Koukounakis et al. v. Stainrod (1995), 81 O.A.C. 36; 23 O.R.(3d) 299 (C.A.), refd to. [para. 30].

Howes et al. v. Crosby et al. (1984), 2 O.A.C. 375; 45 O.R.(2d) 449 (C.A.), 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. 32].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 32, footnote 2].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 32, footnote 2].

Avco Financial Services Realty Ltd. v. Norman (2003), 170 O.A.C. 229; 64 O.R.(3d) 239 (C.A.), refd to. [para. 39].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 39].

Hughes v. Lord Advocate, [1963] A.C. 837 (H.L.), refd to. [para. 42, footnote 3].

Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (Wagon Mound No. 2), [1967] 1 A.C. 617 (P.C.), refd to. [para. 42, footnote 3].

Snushall v. Fulsang et al. (2005), 202 O.A.C. 297; 78 O.R.(3d) 142 (C.A.), refd to. [paras. 49, 87].

Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 100 B.C.A.C. 212; 163 W.A.C. 212; 43 B.C.L.R.(3d) 219 (C.A.), refd to. [paras. 49, 86].

Heeney v. Best (1979), 28 O.R.(2d) 71 (C.A.), refd to. [para. 54].

Hunt v. Sutton Group Incentive Realty Inc. et al., [2001] O.T.C. 74; 52 O.R.(3d) 425 (Sup. Ct.), refd to. [para. 55].

Kennedy et al. v. Board of Education of Waterloo County (1999), 122 O.A.C. 122; 45 O.R.(3d) 1 (C.A.), refd to. [para. 55].

Rutherford v. Niekrawietz, [1994] O.J. No. 2439 (Gen. Div.), refd to. [para. 55].

Brown v. Gravenhurst, [1995] O.J. No. 561 (Gen. Div.), refd to. [para. 55].

Padfield v. Martin et al. (2003), 172 O.A.C. 256; 64 O.R.(3d) 577 (C.A.), refd to. [para. 59].

Pilon v. Janveaux et al. (2005), 203 O.A.C. 345 (C.A.), refd to. [para. 61].

Binder v. Mardo Construction Ltd. et al. (1994), 136 N.S.R.(2d) 20; 388 A.P.R. 20 (C.A.), refd to. [para. 65, footnote 4].

Alden v. Spooner et al. (2002), 177 B.C.A.C. 105; 291 W.A.C. 105; 6 B.C.L.R.(4th) 308 (C.A.), refd to. [para. 65, footnote 4].

Courdin v. Meyers (2005), 209 B.C.A.C. 94; 345 W.A.C. 94; 37 B.C.L.R.(4th) 222 (C.A.), refd to. [para. 65, footnote 4].

Dushynski v. Rumsey (2003), 327 A.R. 373; 296 W.A.C. 373 (C.A.), refd to. [para. 65, footnote 4].

Westervelt v. Frappier Estate et al., [1998] O.T.C. Uned. 572 (Gen. Div.), refd to. [para. 66, footnote 5].

Hanna-Harik et al. v. Waters et al., [2001] O.T.C. 446 (Sup. Ct.), refd to. [para. 66, footnote 5].

Jones v. Mazolla, [2004] O.T.C. 103 (Sup. Ct.), refd to. [para. 66, footnote 5].

Deschamps v. Chu (1997), 32 O.T.C. 32 (Gen. Div.), refd to. [para. 67].

Britt v. Zagjo Holdings Ltd., [1996] O.J. No. 1014 (Gen. Div.), refd to. [para. 67].

Latta v. Ontario, [2004] O.T.C. 802 (Sup. Ct.), refd to. [para. 68].

Gorman v. Falardeau et al. (2005), 197 O.A.C. 316 (C.A.), refd to. [para. 68, footnote 6].

Peloso v. 778561 Ontario Inc. et al., [2005] O.T.C. 515 (Sup. Ct.), refd to. [para. 69].

Hartwick v. Simser, [2004] O.T.C. 917 (Sup. Ct.), refd to. [para. 70].

Nusinowitz v. Superintendent of Financial Services (Ont.) et al., [2005] O.T.C. 296 (Sup. Ct.), refd to. [para. 71].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209, refd to. [para. 74].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 71 O.R.(3d) 291 (C.A.), refd to. [para. 75].

Martin v. Listowel Memorial Hospital et al. (2000), 138 O.A.C. 77; 51 O.R.(3d) 384 (C.A.), refd to. [para. 86].

Mortimer et al. v. Cameron et al. (1994), 68 O.A.C. 332; 17 O.R.(3d) 1 (C.A.), refd to. [para. 86].

Alberta Wheat Pool v. Northwest Pile Driving Ltd. (2000), 142 B.C.A.C. 113; 233 W.A.C. 113; 80 B.C.L.R.(3d) 153 (C.A.), refd to. [para. 86].

Heller v. Martens et al. (2002), 303 A.R. 84; 273 W.A.C. 84; 4 Alta. L.R.(4th) 51 (C.A.), refd to. [para. 86].

Clyke v. Blenkhorn (1958), 13 D.L.R.(2d) 293 (N.S.C.A.), refd to. [para. 86].

Treaty Group Inc. v. Drake International Inc. (2007), 227 O.A.C. 72; 86 O.R.(3d) 366 (C.A.), refd to. [para. 93].

Statutes Noticed:

Negligence Act, R.S.O. 1990, c. N-1, sect. 3 [para. 47].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (9th Ed. 1998), pp. 306 to 309 [para. 86].

Griffiths, David, O'Brien, J.W., and Carnwath, James D., General Comments on Conduct of a Civil Jury Trial in Civil Jury Charges: Draft, p. 24 [para. 26].

Klar, Lewis N., Tort Law (3rd Ed. 2003), p. 467 [para. 86].

Counsel:

Karl Arvai and Chris Nicolis, for the appellant;

Douglas A. Wallace, for the respondents.

This appeal was heard on October 30, 2007, by Laskin, Lang and Juriansz, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered on March 11, 2008, when the following opinions were filed:

Lang, J.A. (Juriansz, J.A., concurring) - see paragraphs 1 to 77;

Laskin, J.A., dissenting in part - see paragraphs 78 to 99.