Senger et al. v. Lachman

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Rouleau, Watt and Epstein, JJ.A.
• Citation: (2008), 235 O.A.C. 280 (CA),2008 ONCA 323
• Date: 20 February 2008

Senger v. Lachman (2008), 235 O.A.C. 280 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. MY.010

Colleen Senger , Kevin Cook, Kathleen Busey, Brian Busey, Michael Cook, by his litigation guardian Colleen Senger, Bradley Cook, by his litigation guardian Colleen Senger (plaintiffs/appellant) v. Satrohan Lachman and Parbatee Lachman (defendants/respondents)

(C44628; 2008 ONCA 323)

Indexed As: Senger et al. v. Lachman

Ontario Court of Appeal

Rouleau, Watt and Epstein, JJ.A.

May 1, 2008.

Summary:

The appellant's 15 year old son died when the bicycle he was riding collided with an automobile on a highway. The defendants were the driver and owner of the automobile. The action against the defendants was dismissed based on the jury's conclusion that the accident was not caused by any negligence on the part of the defendants. The appellant appealed.

The Ontario Court of Appeal allowed the appeal and ordered a new trial where the errors in the trial judge's instructions to the jury on the onus of proof would have confused the jury as to the state of the law.

Practice - Topic 9017

Appeals - Restrictions on argument on appeal - Failure to object at trial - The appellant's 15 year old son died when the bicycle he was riding collided with an automobile on a highway - The action against the defendants (driver and owner of the automobile) was dismissed based on the jury's conclusion that the accident was not caused by any negligence on the part of the defendants - The appellant appealed - The Ontario Court of Appeal allowed the appeal and ordered a new trial where errors in the trial judge's instructions to the jury on the onus of proof would have confused the jury as to the state of the law - The failure of the appellant's trial counsel to object to those portions of the charge was not fatal to the appeal - Where, as here, the error bore directly on the jury's central task, the failure to object would not be fatal - See paragraph 16.

Torts - Topic 550

Negligence - Motor vehicle - Evidence and burden of proof - Statutory burden on owner or operator - A 15 year old boy died when the bicycle he was riding collided with an automobile on a highway - The action against the defendants (driver and owner of the motor vehicle) was dismissed based on the jury's conclusion that the accident was not caused by any negligence on the part of the defendants - The Ontario Court of Appeal allowed an appeal and ordered a new trial where errors in the trial judge's instructions to the jury on the onus of proof would have confused the jury as to the state of the law - The trial judge correctly explained the effect of s. 193(1) of the Highway Traffic Act when he stated that "where a motorist collides with a bicyclist or a pedestrian, on a highway or where his automobile causes injury, that motorist is presumed to be at fault and must satisfy you, the jury, by a reasonable preponderance of evidence that he was not at fault or negligent" - However, later in his charge, the trial judge contradicted and confused his earlier explanation of the onus - When those portions of the charge were viewed together and the charge was read as a whole, the court was not satisfied that the jury would have clearly understood that the burden of proof remained on the defendants throughout the trial, and that the jury did not have to identify a specific breach of the duty of care as the cause of the accident - See paragraphs 8 to 15.

Cases Noticed:

Bronson v. Evans and Evans, [1943] O.R. 248 (C.A.), refd to. [para. 15].

Gellie v. Naylor and Laidlaw Transport Ltd. (1986), 15 O.A.C. 129; 28 D.L.R.(4th) 768; 55 O.R.(2d) 400 (C.A.), refd to. [para. 16].

Mizzi v. Hopkins (2003), 171 O.A.C. 161; 64 O.R.(3d) 365 (C.A.), refd to. [para. 16].

1018202 Ontario Ltd. v. Hamilton Township Farmers' Mutual Fire Insurance Co. (2006), 209 O.A.C. 127; 267 D.L.R.(4th) 690 (C.A.), refd to. [para. 17].

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

Statutes Noticed:

Highway Traffic Act, R.S.O. 1990, c. H-8, sect. 193(1) [para. 9].

Counsel:

Anne E. Posno and Farah Malik, for the appellant;

Wilfrid Menninga, for the respondents.

This appeal was heard on February 20, 2008, before Rouleau, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Rouleau, J.A., and was released on May 1, 2008.