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Civil Litigation - Trial (2). Jarvis v. Oliveira [cross-examination]
In Jarvis v. Oliveira (Ont CA, 2024) the Ontario Court of Appeal allowed a negligence appeal "from a civil jury trial concerning a collision between a motorist and a young pedestrian" - where a central issue was the degree of the plaintiff's fault, the trial court denying liability entirely.
Here the court affirms that cross-examination on credibility is quite wide:[55] Ultimately, and no matter how respondent counsel sought to characterize it, the taxi fare evidence was evidence of bad character. In Racette v. Saskatchewan, 2020 SKCA 2, Tholl J.A. stated the general rule, at para. 23: “As a starting point, character evidence – good or bad – is generally inadmissible in a civil action”. There are exceptions to this rule, but none of them apply in this case.
[56] One exception arises during the cross-examination of witnesses. As this court said in Deep v. Wood et al. (1983), 1983 CanLII 3101 (ON CA), 143 D.L.R. (3d) 246 (Ont. C.A.), at p. 250: “cross-examination relating to general reputation for untruthfulness or to prior criminal convictions or to findings of professional misconduct involving dishonesty may be used to diminish the credibility of a witness” (emphasis added). Similarly, in Sidney N. Lederman, Michelle K. Fuerst, and Hamish C. Stewart, The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022), the authors state that, subject to preventing vexatious and oppressive questions, “a witness can be asked nearly anything as a test of his or her credibility” (at p. 711). . Jarvis v. Oliveira [failure to object]
In Jarvis v. Oliveira (Ont CA, 2024) the Ontario Court of Appeal allowed a negligence appeal "from a civil jury trial concerning a collision between a motorist and a young pedestrian" - where a central issue was the degree of the plaintiff's fault, the trial court denying liability entirely.
The court discusses the implications of a 'failure to object', here in a civil jury trial:(f) The Failure to Object is Not Fatal
[81] The respondents submit that the appeal should fail because of the lack of objection by appellant counsel, especially as it related to the jury charge.
[82] This court has held that an appellant from a civil jury trial faces a steep uphill battle after failing to object to the charge. However, a court is still able to provide relief where there was no objection if the interests of justice require it. This was thoroughly explained by in Marshall v. Watson Wyatt & Co. (2002), 2002 CanLII 13354 (ON CA), 57 O.R. (3d) 813 (C.A.). As Laskin J.A. said, at paras. 14-15:Although the failure to object at a civil trial is not always fatal to a party’s position on appeal, an appellate court is entitled to give it considerable weight, indeed ordinarily more weight than the failure to object at a criminal trial. In most civil cases where a party’s failure to object is in issue, the appellant seeks a new trial because of the alleged error. For this reason, civil cases on the failure to object have typically focused on the question of whether a substantial wrong or miscarriage of justice has occurred.
Even apart from the question whether a new trial should be ordered, however, a party in a civil case generally should not bring an appeal on the basis of some aspect of the trial proceeding to which it did not object. For example, if no objection is made to the admissibility of evidence in a civil trial, an objection on appeal will usually be unsuccessful: see Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 2nd. Ed. (1999), at p. 47. Similarly, an objection to the charge to the jury in a civil case will generally be unsuccessful if raised for the first time on appeal. Thus, this court has held that where a party on appeal argues non-direction of the jury “in civil cases, failure to object ... is usually fatal”, G.K. v. D.K. (1999), 1999 CanLII 935 (ON CA), 122 O.A.C. 36 at 42. A failure to object at trial to an incomplete jury instruction weighs heavily against a litigant bringing an appeal because “it is an indication that trial counsel did not regard as important or necessary the additional direction now asserted”, Tsalamatas v. Wawanesa Mutual Insurance Co. et al. (No. 2) (1982), 1982 CanLII 3305 (ON CA), 141 D.L.R. (3d) 322 at 326 (Ont. C.A.). This court will relieve against the failure to object only if the interests of justice require it. [Emphasis added.] See also Hoang v. Vincentini, 2016 ONCA 723, 352 O.A.C. 358, at para. 45, in the context of the failure to object to the admission of inadmissible evidence.
[83] In Landolfi, the court dealt with a failure to object to aspects of opposing counsel’s closing address. As Cronk J.A. held, at para. 101:I recognize that defence counsel did not object at trial to the personal attack made on him in the offending closing address. This, however, did not diminish the trial judge’s responsibility to maintain civility in the courtroom and to intervene to avoid the risk of prejudice: see Felderhof, at paras. 57, 83, 94 and 95; and de Araujo v. Read, 2004 BCCA 267 (CanLII), [2004] 8 W.W.R. 473 (B.C.C.A.) at paras. 4 and 53, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 346. [Emphasis added.] [84] Appellant counsel did raise objections at some points, but not at others. On the admissibility issue, appellant counsel was persistent in his pursuit of a ruling to exclude the impugned evidence. He brought a formal pre-trial motion to exclude the evidence. This was supported by a Statement of Law, accompanied by the relevant authorities. He raised the issue repeatedly and was unwavering in his position that the evidence should not be admitted. On one of the occasions when this issue was addressed, appellant counsel said: “if I’m unsuccessful in…my objection, then certainly my – my request to the court would be a very strong charge to the jury in the relation to the use of that evidence”. His position was clearly on the record. During the pre-charge conference, he was successful in preserving some aspects of the “Bad Character” instruction. While it would have been preferrable for counsel to focus his submissions on the extent and strength of the warning that was required in this case, his failure to do so is not fatal: Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at paras. 21-22. The issue was in play from the very beginning of the trial. Appellant counsel’s position never changed.
[85] With respect to respondent counsel’s jury address and the trial judge’s instructions, there were no objections. This is a factor that weighs against appellate intervention. However, for the reasons discussed throughout this judgment, the interests of justice justify allowing the appeal. . Jarvis v. Oliveira [orders - written or oral]
In Jarvis v. Oliveira (Ont CA, 2024) the Ontario Court of Appeal allowed a negligence appeal "from a civil jury trial concerning a collision between a motorist and a young pedestrian" - where a central issue was the degree of the plaintiff's fault, the trial court denying liability entirely.
Here the court comments on the practical effects of the manner (written or oral) and timing in which motion orders are given:(c) The Delay in the Ruling Caused Unfairness
[61] The appellants submit that the trial judge erred in not providing counsel with a written ruling on this issue, like she did for the other two motions. Instead, the issue was left hanging as the trial progressed, leaving counsel to fathom the range of the evidentiary playing field.
[62] Although a written ruling may be very helpful to counsel, it is not mandatory. A clear oral ruling may often achieve the same goal. But there must be a proper ruling of some type, one which articulates the decision and why that decision was made. It is a basic entitlement of litigants; it is also critical to meaningful appellate review: Penate v. Martoglio, 2024 ONCA 166, at para. 21.
[63] Sometimes it is necessary for a trial judge to wait to see how the evidence unfolds before a proper ruling on admissibility can be made. That was not the case here. The issue was well-framed by the parties and was fully argued as a pre-trial motion. The issue was ripe for decision at that time and should not have been left lingering as the trial unfolded.
[64] The timing of the ruling put appellant counsel in a disadvantageous position. Recall that, in his opening address to the jury, appellant counsel did not advert to the taxi fare issue. This was out of respect for the fact that the trial judge had not yet ruled on the issue. Respondent counsel did not take the same approach. In the examination-in-chief of its own expert, appellant counsel did not address the taxi fare issue. Respondent counsel did. Appellant counsel was understandably concerned that it might appear to the jury that this was something his clients were trying to hide, when in fact he did the right thing by waiting for the trial judge to rule on the matter. Appellant counsel requested that the trial judge instruct the jury in a manner that would alleviate this concern, but she did not.
[65] This case demonstrates the hazards of delaying the delivery of such an important evidentiary ruling. A key part of a trial judge’s gatekeeping function is to screen out inadmissible evidence: Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at para. 70. This is especially important in jury trials. This was not done in this case.
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