Vokes Estate v. Palmer et al., 2012 ONCA 510

• Judge: Simmons, Juriansz and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 16, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 510;(2012), 294 O.A.C. 342 (CA)

Vokes Estate v. Palmer (2012), 294 O.A.C. 342 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JL.053

The Estate of Michelle Vokes, deceased, Bradley Vokes, Madison Vokes and Abigail Vokes, by their Litigation Guardian, Bradley Vokes (plaintiffs/respondents) v. Randall A. Palmer by his Litigation Guardian, Marnie Palmer, and Ing Insurance Company of Canada (defendants/ appellant )

(C53990; 2012 ONCA 510)

Indexed As: Vokes Estate v. Palmer et al.

Ontario Court of Appeal

Simmons, Juriansz and Epstein, JJ.A.

July 24, 2012.

Summary:

The defendant insurance company appealed from a jury's verdict in an action involving a fatal motor vehicle accident.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 5191

Juries and jury trials - Charge to jury - Failure to object to - [See Practice - Topic 5193 ].

Practice - Topic 5193

Juries and jury trials - Charge to jury - Respecting law and case law - This appeal arose from a jury's verdict in an action involving a fatal motor vehicle accident - The deceased (Vokes) was pregnant and approaching her delivery date - The unborn child did not survive the accident - The defendant insurer argued that the trial judge erred in his instructions concerning the duty owed by Vokes on entering a highway under s. 139(1) of Ontario's Highway Traffic Act - After vetting his draft jury charge with counsel, the trial judge omitted the words "very positive" and "positive" from his description of Vokes' duty - The defendant argued that the modification improperly diminished the extent of the duty - The Ontario Court of Appeal disagreed - The defendant's trial counsel not only again failed to object but also described the jury charge as "an exercise in perfection" - Further, the modified description was not inappropriate having regard to the circumstances of the accident - The defendant driver was travelling significantly in excess of the posted speed limit - Moreover, there was evidence that it would have been difficult for Vokes to detect the excessive speed - See paragraphs 3 to 8.

Practice - Topic 5197

Juries and jury trials - Charge to jury - Respecting assessment of damages - This appeal arose from a jury's verdict in an action involving a fatal motor vehicle accident - The deceased (Vokes) was pregnant and approaching her delivery date - The unborn child did not survive the accident - Vokes was survived by her husband and two young daughters, aged five and three - The appellant insurer argued that the trial judge erred by failing to instruct the jury on the available range of damages for loss of guidance, care and companionship - The Ontario Court of Appeal stated that, under s. 118 of the Courts of Justice Act, "a trial judge may, but is not obliged, to instruct the jury on the range of damages. Although we agree that such an instruction may have been helpful in this case, in our view, it is not open to the appellant to complain, on appeal, about the trial judge's failure to give what is essentially an optional instruction when appellant's trial counsel took no steps to clarify that consent to such an instruction was not required. In our view, this omission was the effective equivalent of a failure to object" - See paragraphs 9 and 10.

Practice - Topic 8806

Appeals - General principles - Duty of appellate court regarding damage awards by a jury - [See Practice - Topic 9276 ].

Practice - Topic 9276

Appeals - Appeal from jury verdict - Damage awards - This appeal arose from a jury's verdict in an action involving a fatal motor vehicle accident - The deceased was pregnant and approaching her delivery date - The unborn child did not survive the accident - The deceased was survived by her husband and two young daughters, aged five and three - The appellant insurer argued that the amounts awarded by the jury for loss of guidance, care and companionship were gross and excessive and should be set aside - The Ontario Court of Appeal disagreed - Although the amounts awarded were high, they were not so inordinately high in all the circumstances as to meet the threshold for appellate intervention - "The threshold for appellate intervention in a jury's award of damages is extremely high. In the absence of an error in the charge, to warrant appellate intervention 'the jury's assessment must be so inordinately high (or low) as to constitute a wholly erroneous assessment of the guidance, care and companionship loss'" - See paragraphs 11 to 13.

Practice - Topic 9280

Appeals - Appeal from jury verdict - Review of jury charge - [See Practice - Topic 5193 ].

Cases Noticed:

Marshall v. Watson Wyatt & Co. (2002), 155 O.A.C. 103; 57 O.R.(3d) 813; 209 D.L.R.(4th) 411 (C.A.), refd to. [para. 7].

Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board (2004), 71 O.R.(3d) 803 (C.A.), refd to. [para. 7].

Fiddler v. Chiavetti et al. (2010), 260 O.A.C. 363; 2010 ONCA 210, refd to. [para. 12].

To v. Board of Education of Toronto et al. (2001), 150 O.A.C. 54; 55 O.R.(3d) 641 (C.A.), refd to. [para. 12].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. 43, sect. 118 [para. 10].

Highway Traffic Act, R.S.O. 1990, c. H-8, sect. 139(1) [para. 3].

Counsel:

David R. Young and Kevin Bridel, for the appellant;

James L. Vigmond and Adam R. Little, for the respondents.

This appeal was heard on July 16, 2012, before Simmons, Juriansz and Epstein, JJ.A., of the Ontario Court of Appeal. On July 24, 2012, the Court of Appeal delivered the following endorsement.