Neither Party Found Liable in Car Accident - Bodenstein v Penley, 2017 ONSC 27 (CanLII)

November 24, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Bodenstein v Penley, 2017 ONSC 27 (CanLII)

Date of Decision: January 3, 2017
Heard Before: Justice Gilmore

Liability: Neither party found liable

This is the plaintiffs’ motion for an order to set aside the jury verdict on liability only.  The plaintiffs want the trial judge to either substitute her own decision for that of the jury on the issue of liability, or to grant the plaintiffs a new trial on the issue of liability only.

The car accident occurred August 22, 2003. The accident involved the cars striking one another. Mr. Penley (deceased) maintained that he was hit when Mr. Bodenstein was attempting to make a left hand turn in front of Mr. Penley’s car which was going through a green light. Mr. Bodenstein claims that Mr. Penely was under the influence of alcohol and he illegally drove through a read light and struck the Bodenstein car head on.

The jury returned their verdict and indicated there was no negligence on the part of either Ms. Penley or Mr. Bodenstein. Liability was not apportioned as between the parties.

The jury was instructed on the issue of liability.  The evidence given by different witnesses who witnessed the accident was reviewed with the jury and they were also encouraged to consult their own notes and recollections of the evidence. 

According to the plaintiffs, there was no evidentiary foundation for the jury to conclude that there was no liability. No other event or person intervened which caused the accident. Only Mr. Bodenstein and Ms. Penley were involved.  The jury failed to heed the trial judge’s instructions which were that if they were unable to decide on an apportionment of liability that they apportion it 50/50. There was no evidence presented which would support the jury’s verdict and it therefore must be set aside.

The defence position is that the jury was properly instructed on the onus of proof.  The jury determined that neither party met the onus of proof to show the other was at fault.  Further, Ms. Penley had no memory of what occurred and Mrs. Bodenstein was looking down when the accident occurred. The only real evidence of what occurred was from Ms. P who did not attribute fault to Mr. Penley. That evidence was uncontradicted. There was also the evidence of Mr. Bodenstein who could only recall sitting at a red light and someone driving at him but nothing more.  Further, there was the evidence of the debris trail from both vehicles which was in the middle of the intersection which did not align with what Mr. Bodenstein said occurred. The jury was instructed on all of the above evidence. The jury determined that there was insufficient evidence to determine what happened and as the finders of fact were entitled to conclude that there was no liability.

Justice Gilmore determined that this motion turns on the answer to two questions:

1. Was there some evidence to support the jury’s verdict that neither party was liable? Or,
2. Was the jury’s answer to question 5 on the verdict sheet such that it cannot in law provide a foundation for judgment?

Based on the facts of this case and the case law, the answer to question one must be yes and the answer to question two must be no. In support of those findings, the following cases are of assistance.

In Hill v. Church of Scientology of Toronto, 1992 CanLII 7516 (ON SC), the court held that: “a trial judge may refuse to accept the verdict of a jury only when she or he considers that there is no evidence to support the findings of the jury, or where the jury gives an answer to a question which cannot in law provide a foundation for a judgment.”

The standard of review is one which is unquestionably high and is reflected in Stilwell v. World Kitchen Inc., in which the Ontario Court of Appeal stipulated that a civil jury verdict may only be set aside where it is plainly unreasonable.  In coming to that conclusion the verdict must be given a fair and reasonable interpretation in light of the evidence and circumstances.

In determining whether there is an evidentiary basis for the jury’s verdict, the decision in Sandhu v. Wellington Place Apartments, 2006 CanLII 19463 (ON SC) at para. 12 assists.  Horkins, J. disagreed with the defence submission that there must be cogent and compelling evidence to support the verdict.  In her view, only a situation in which the verdict was devoid of any evidentiary basis would suffice.  Otherwise, even a “gossamer thread” of evidence would do.

Upon review of the case, the law, and the precedents Judge  Gilmore found that the evidence in this case does provide an evidentiary foundation for the jury’s verdict (albeit a somewhat “gossamer” one).  The jury was instructed on the onus of proof. It was within their jurisdiction, and in accordance with the instructions given to them in the charge, to conclude that neither party had proven negligence. That is, that Ms. Penley was not negligent because Mr. Bodenstein’s description of the accident was not borne out by the debris trail or Ms. Polhamus’ description of the accident.  Mr. Bodenstein was not negligent based on his own evidence and the evidence of the debris trail.  The jury found, as they were entitled to do, that neither party had met their burden of proof.  Therefore, there was an evidentiary foundation for their verdict, which was a body of evidence that they did not accept or believe.

As for the verdict lacking a foundation in law, Judge Gilmore found that the jury was properly instructed on negligence and given various options.  Based on the other answers given to questions posed to them in the verdict sheets, they clearly understood their role and their instructions.  This is not a case where the jury simply “opted out” of making a decision. The evidence of what happened at the scene of the accident was clearly contradictory.  However, unlike in the Gauthier decision cited above, they did not attempt to impose some form of unrealistic division of responsibility.  They were unable to find that either party was negligent based on the evidence that was available to them.  They followed their instructions properly in finding no negligence where, based on their finding of the facts and in consideration of the respective burdens of proof, no negligence was possible.

Based on all of the above, the plaintiffs’ motion is dismissed

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