Top 5 Civil Appeals From The Court Of Appeal (February 2013)

El Dali v. Panjalingam, 2013 ONCA 24 (Laskin, MacPherson and Gillese JJ.A.), January 18, 2013 Fifth Third Bank v. O'Brien, 2013 ONCA 5 (MacPherson, Cronk and Lauwers JJ.A.), January 10, 2013 1003280 Ontario Inc. v. Canac, A Kohler Company, 2013 ONCA 69 (Epstein, Pepall and Tulloch JJ.A.), January 31, 2013 Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19 (Cronk, Epstein and Pepall JJ.A.), January 17, 2013 Steen v. Islamic Republic of Iran, 2013 ONCA 30 (Winkler C.J.O., Armstrong and Watt JJ.A.), January 21, 2013 1. El Dali v. Panjalingam, 2013 ONCA 24 (Laskin, MacPherson and Gillese JJ.A.), January 18, 2013

This case demonstrates the type of circumstances in which a jury verdict will be set aside as unreasonable.

The appellant was injured in an automobile accident on an icy road in Ottawa. The accident occurred when the respondent driver lost control of his car, crossed the centre line of the road, and collided with the appellant's car.

The appellant sued the respondent in negligence. The respondent did not testify about his driving and defence counsel provided no other evidence to explain it. Nonetheless, when the jury was asked "Was there any negligence on the part of the defendant...which caused or contributed to the motor vehicle accident...?", it answered in the negative.

The appellant appealed on both liability and damages.

The appeal turned on whether the jury's verdict on liability was reasonable. Writing for the Court of Appeal, Laskin J.A. held that in the absence of any explanation for the respondent's driving or evidence that he exercised reasonable care, the jury's verdict was unreasonable.

Citing the standard of appellate review as articulated in McCannell v. McLean, [1937] S.C.R. 341, Laskin J.A. explained that appellate courts are to treat jury verdicts with deference, only setting a verdict aside where it is "so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it." At the same time, however, juries "are not infallible" and if and when they are in error, an appellate court should intervene. According to Laskin J.A., this is one such case.

Simply by crossing the centre line of the road, the respondent breached s. 148(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. When a driver is in breach of that provision and an accident occurs, he is held to be prima facie negligent. As was explained in Levesque v. Levesque (2001), 151 O.A.C. 227, the driver bears the onus of explaining that the accident could not have been avoided by the exercise of reasonable care.

Laskin J.A. clarified that that explanation "need not come from the defendant driver, but it must come from someone." In the absence of any such explanation, the defendant will be found negligent and at least partially responsible for the accident. Moreover, as the court found in Graham v. Hodgkinson (1983), 40 O.R. (2d) 697 (C.A.), where an explanation is required and the explanation fails to demonstrate that the party was not acting in a negligent manner, a jury verdict that the party was not negligent may be set aside as unreasonable.

In this case, where absolutely no evidence or explanation was offered with respect to the respondent's driving, Laskin J.A. concluded that the jury's verdict that the respondent was not negligent must be set aside.

Pursuant to s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal court may order a new trial in the case of a "substantial wrong" or "miscarriage of justice". In light of the jury's unsupported finding that the respondent was not negligent, Laskin J.A. held that a new trial should be held on liability.

2. Fifth Third Bank v. O'Brien, 2013 ONCA 5 (MacPherson, Cronk and Lauwers JJ.A.), January 10, 2013

   In this decision, the Court of Appeal considered a bank's duty to forbear from calling its loans.

   The appellants guaranteed loan facilities provided by the respondent, Fifth Third Bank, to MPI Packaging Inc. When MPI defaulted on its loan obligations, the bank obtained a court order appointing a receiver, which then sold MPI's assets and remitted the net proceeds to the bank. The bank then sued the appellants for satisfaction of the shortfall between the amounts recovered by the receiver and the amount of MPI's debt.

   M.A. Penny J. granted...