Ross v. Bacchus, (2015) 335 O.A.C. 14 (CA)

• Judge: Doherty, Pepall and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Thursday April 23, 2015
• Jurisdiction: Ontario
• Citations: (2015), 335 O.A.C. 14 (CA);2015 ONCA 347

Ross v. Bacchus (2015), 335 O.A.C. 14 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MY.021

Bryan Ross (plaintiff/respondent) v. Shaheed Bacchus (defendant/appellant)

(C58102; 2015 ONCA 347)

Indexed As: Ross v. Bacchus

Ontario Court of Appeal

Doherty, Pepall and van Rensburg, JJ.A.

May 15, 2015.

Summary:

Ross was stopped at a red light on a motorcycle when a vehicle driven by Bacchus struck him from behind. Ross sued for injuries to his back, neck, hip and knees. A jury awarded Ross damages of $248,000. The trial judge ordered costs and disbursements payable to Ross in the amount of $217,000 plus HST (see [2013] O.T.C. Uned. 7773). The costs order included a $60,000 award because of Bacchus's insurer's alleged failure to attempt to settle the claim as expeditiously as possible, and its refusal to participate in mediation of the claim, as required by ss. 258.5 and 258.6 of the Insurance Act. Bacchus appealed both damages and costs.

The Ontario Court of Appeal dismissed the appeal from the damages award, but allowed the appeal from the costs order by deleting the $60,000 award.

Courts - Topic 555

Judges - Powers - To intervene in examination of witnesses - [See all Practice - Topic 5010].

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - [See all Practice - Topic 5010].

Insurance - Topic 286

Regulation - Mediation - Cost consequences of failing to participate in mediation - A jury awarded Ross damages for injuries that he sustained in a motor vehicle accident caused by Bacchus - The trial judge's costs order included a $60,000 award because of Bacchus's insurer's alleged failure to attempt to settle the claim as expeditiously as possible, and its refusal to participate in mediation of the claim, as required by ss. 258.5 and 258.6 of the Insurance Act - The Ontario Court of Appeal allowed Bacchus's appeal from the costs order by deleting the $60,000 award - There was no evidence that Bacchus's insurer failed to attempt to settle the claim as expeditiously as possible - The insurer made an "all-in" offer to settle less than one year after the action was commenced - Ross's offer to settle, his request for mediation, and the mediation itself all occurred less than three weeks before the commencement of the trial - The insurer counter-offered during that same period and attended the mediation - The trial judge assumed that the insurer's participation in the mediation was a sham because the insurer's counsel advised prior to mediation that his client was "not interested" in settling the case - This assumption was unwarranted - A firm position strongly put going into mediation did not preclude meaningful participation in the mediation - See paragraphs 33 to 51.

Insurance - Topic 286

Regulation - Mediation - Cost consequences of failing to participate in mediation - A jury awarded the plaintiff damages for injuries that he sustained in a motor vehicle accident caused by the defendant - The trial judge ordered the defendant's insurer to pay, inter alia, costs of $60,000 because of its alleged failure to attempt to settle the claim as expeditiously as possible, and its refusal to participate in mediation of the claim, as required by ss. 258.5 and 258.6 of the Insurance Act - The Ontario Court of Appeal stated that "Insurers, like any other defendant, are entitled to take cases to trial. When an insurer rejects a plaintiff's offer and proceeds to trial, the insurer risks both a higher damage award at trial and the imposition of substantial indemnity costs after the date of the rejected offer. ... The costs provisions in ss. 258.5 and 258.6 do not address those risks, but instead address the failure to meet the specific obligations identified in those provisions." - The trial judge's assumptions about the insurer's motivation for rejecting the plaintiff's offer and proceeding to trial had no relevance to the determination of whether augmented costs should be awarded under the Insurance Act provisions - See paragraph 51.

Insurance - Topic 735

Insurers - Duties - Respecting settlement (incl. costs consequences) - [See both Insurance - Topic 286].

Practice - Topic 5010

Conduct of trial - General principles - Power of judge to intervene - Ross sued Bacchus for injuries that he sustained in a motor vehicle accident - A jury awarded Ross damages of $248,000 - Bacchus appealed, asserting that interventions by the trial judge throughout the trial destroyed the appearance of judicial impartiality, rendered the trial unfair, and resulted in a miscarriage of justice - Bacchus referred to an instance where his trial counsel sought to use Ross's discovery evidence to impeach his trial testimony based on an alleged inconsistency - The trial judge interjected, stating "Wait a minute. How is this inconsistent with what he has just told us?" - Trial counsel decided that there was no inconsistency and moved on - The Ontario Court of Appeal dismissed the appeal - The trial judge could not be criticized for asking counsel to clarify the purpose of the proposed cross-examination - His inquiry avoided cross-examination on a non-existent inconsistency - This sort of judicial intervention was standard fare in any jury case, and could not possibly have had any adverse effect on the appearance of trial fairness - See paragraphs 9 to 13.

Practice - Topic 5010

Conduct of trial - General principles - Power of judge to intervene - Ross sued Bacchus for injuries that he sustained in a motor vehicle accident - A jury awarded Ross damages of $248,000 - Bacchus appealed, asserting that interventions by the trial judge throughout the trial destroyed the appearance of judicial impartiality, rendered the trial unfair, and resulted in a miscarriage of justice - Bacchus referred to an instance where his trial counsel put certain physiotherapist's notes to Ross and asked "... any reason why, in those 22 treatment notes, there's no reference to your left knee pain?" - The trial judge interrupted to point out that Ross was not the author of the notes and could not explain why something was not in those notes - The Ontario Court of Appeal dismissed the appeal - The trial judge's brief and appropriate interjection caused counsel to re-frame the question and proceed with his cross-examination - The intervention had no adverse impact on counsel's conduct of his cross-examination or the appearance of trial fairness - See paragraphs 14 to 16.

Practice - Topic 5010

Conduct of trial - General principles - Power of judge to intervene - Ross sued Bacchus for injuries that he sustained in a motor vehicle accident - A jury awarded Ross damages of $248,000 - Bacchus appealed, asserting that interventions by the trial judge throughout the trial destroyed the appearance of judicial impartiality, rendered the trial unfair, and resulted in a miscarriage of justice - Bacchus referred to an instance where his trial counsel was questioning Ross about an entry in a document, which was apparently difficult to read - The trial judge stated "It's very small... it says shortage of work" - Ross agreed with the trial judge's reading of the entry - Bacchus's counsel did not suggest any different reading and continued his cross-examination - The Ontario Court of Appeal dismissed the appeal - Nothing in the trial record suggested that anyone took the trial judge's comment to be anything but a bona fide attempt to read the entry in the document - See paragraphs 17 to 19.

Practice - Topic 5010

Conduct of trial - General principles - Power of judge to intervene - Ross sued Bacchus for injuries that he sustained in a motor vehicle accident - A jury awarded Ross damages of $248,000 - Bacchus appealed, asserting that interventions by the trial judge throughout the trial destroyed the appearance of judicial impartiality, rendered the trial unfair, and resulted in a miscarriage of justice - Bacchus referred to an instance where his trial counsel was cross-examining Ross's expert and attempting to establish that statements made by Ross to the expert were relied on by the expert in coming to his opinion - He stated "... but it sounds to me like he's providing you with inaccurate assumptions when you take into consideration his evidence yesterday..." - The trial judge interrupted, observing that the expert could not answer the question as posed, but could identify the sources of information he had relied on in preparing the report - The Ontario Court of Appeal dismissed the appeal - Nothing said by the trial judge interfered with counsel's ability to cross-examine the expert, or would suggest to a reasonable observer that the trial judge was impartial - The trial judge made the defence position clear - It was for the jury, not the expert, to decide whether statements made by Ross to the expert were accurate - See paragraphs 21 to 26.

Practice - Topic 5010

Conduct of trial - General principles - Power of judge to intervene - Ross sued Bacchus for injuries that he sustained in a motor vehicle accident - A jury awarded Ross damages of $248,000 - Bacchus appealed, asserting that interventions by the trial judge throughout the trial destroyed the appearance of judicial impartiality, rendered the trial unfair, and resulted in a miscarriage of justice - The Ontario Court of Appeal dismissed the appeal, stating "A trial judge is obliged to see to it that questions put to witnesses comply with the rules of evidence. Some of the interventions may have been unnecessary and some may even have suggested a degree of impatience with counsel. None, however, compromised the appearance of the fairness of the trial." - See paragraphs 6 to 28.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - Ross sued Bacchus for injuries that he sustained in a motor vehicle accident - A jury awarded Ross damages of $248,000 - Bacchus appealed, asserting that the trial judge misdirected the jury by failing to use the phrase "but for" in explaining causation - The Ontario Court of Appeal dismissed the appeal - Bacchus's argument favoured form over substance - The trial judge stated that "the cause of an injury is the cause which produces the injury, and without which the result would not have happened" - The latter part of this statement was a "but for" instruction on causation - See paragraphs 29 to 32.

Cases Noticed:

Ross v. Hern, [2004] O.A.C. Uned. 177 (C.A.), refd to. [para. 6].

Osterbauer v. Ash Temple Ltd. (2003), 169 O.A.C. 301; 63 O.R.(3d) 697 (C.A.), refd to. [para. 6].

Clements v. Clements, [2012] 2 S.C.R. 181; 431 N.R. 198; 331 B.C.A.C. 1; 565 W.A.C. 1; 2012 SCC 32, refd to. [para. 30].

Union Carbide Canada Inc. et al. v. Bombardier Inc. et al., [2014] 1 S.C.R. 800; 457 N.R. 279; 2014 SCC 35, refd to. [para. 40].

McCombie et al. v. Cadotte (2001), 143 O.A.C. 201; 53 O.R.(3d) 704 (C.A.), refd to. [para. 41].

Keam v. Caddey (2010), 267 O.A.C. 296; 103 O.R.(3d) 626; 2010 ONCA 565, refd to. [para. 42].

Williston v. Hamilton (City) et al.(2013), 306 O.A.C. 364; 115 O.R.(3d) 144; 2013 ONCA 296, refd to. [para. 44].

Statutes Noticed:

Insurance Act, R.S.O. 1990, c. I-8, sect. 258.5, sect. 258.6 [para. 1].

Counsel:

Todd J. McCarthy, for the appellant;

D. Robert Findlay and T. Andrew Sprung, for the respondent.

These appeals were heard on April 23, 2015, before Doherty, Pepall and van Rensburg, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following judgment for the court on May 15, 2015.