Bowhey v. Theakston, [1951] SCR 679

Supreme Court of Canada

Bowhey v. Theakston, [1951] S.C.R. 679

Date: 1951-06-20

Leith Bowhey (Defendant) Appellant;

and

Charles Theakston (Plaintiff) Respondent.

1951: March 19; 1951: June 20.

Present: Kerwin, Taschereau, Kellock, Estey and Cartwright JJ.

Trials—Jury Trial—Disclosure to jury party insured—Procedure to be followed by trial judge—The Judicature Act, R.S.O.1937, c. 100, ss. 27 (1), 55(3).

In an action for damages arising out of the collision between two motor cars, a witness for the defence in examination-in-chief disclosed information from which the jury might reasonably infer that the defendant was insured. Defence counsel thereupon moved that the case be traversed to the next jury sitting. Plaintiff’s counsel objected but expressed willingness for the trial to proceed either before the same jury or before the trial judge alone. The trial judge ruled that he would not traverse the case but would, subject to consent of

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counsel, either try the case alone or proceed with the same jury. Defendant’s counsel having declined to elect, the trial proceeded before the jury and judgment was given for the plaintiff.

Held: (Kellock and Estey JJ., dissenting) that although it was contrary to the established rule in Ontario for the trial judge against counsel’s objection to have proceeded with the same jury, counsel having been afforded the choice of having the trial proceed before the jury or, another proper and permissible course, that of continuing without a jury, and having declined to elect, should not be heard to complain because the former course was adopted.

APPEAL by defendant from the judgment of the Court of Appeal for Ontario[1] affirming, Laidlaw JA. dissenting, the judgment of Kelly J. after a trial with a jury.

G.W. Mason K.C. for the appellant.

W. Judson K.C. for the respondent.

The judgment of Kerwin, Taschereau and Cartwright JJ. was delivered by:

CARTWRIGHT J.:—This is an action for damages arising out of a collision between two motor vehicles owned and driven by the plaintiff and the defendant respectively. The defendant counterclaimed, each party asserting that the other was solely to blame. The solicitors for the defendant served a jury notice. The action was tried before Kelly J. with a jury at Owen Sound and judgment was given for the plaintiff for $13,352.33 and costs.

The defendant appealed and his appeal was dismissed, Laidlaw J.A. dissenting¹, The notice of appeal is not in the record before us but the sole ground of appeal is stated by Laidlaw JA. as follows:—

The sole ground upon which counsel for the appellant rests the appeal is that the defendant did not have a fair trial because a witness called for the defendant referred to a visit made by her to “the insurance man” in Meaford, and, notwithstanding the objections made by counsel for the defendant, the learned trial judge thereafter proceeded to the conclusion of the trial with the same jury that heard the statement of the witness.

While the other learned Justices of Appeal differed from the result at Which Laidlaw JA. arrived, they agreed with this statement as to the point in issue.

After the trial had proceeded for two days, counsel for the defendant called as a witness one Hilda French, the

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fiancée of the defendant and the only passenger in his motor vehicle. In the course of her examination‑in-chief she made an answer to a question put to her by counsel for the defendant as follows:—

Q. Now, I believe you were interviewed by some person representing Mr. Theakston?

A. Well, a lawyer came to our door at noon when I got home from work, and he wanted to know if I could tell him anything, and I did not know what to say because I did not know, and he said that he would meet me around eight o’clock, and I said, Well, I work, and I went back to work at eight o’clock, and so I did not know what to do so, I went to the insurance man in Meaford, and the man was not there, but a woman was there, and she told me to go to Bennett’s office to find out if I had to answer any questions to this lawyer, and I went to Bennett’s office, and it happened to be the very guy who came to our door at noon.

So as not to focus the attention of the jury on the matter, counsel for the defendant awaited the recess that followed not long after and then moved in the absence of the jury to have the jury discharged and the case traversed to the next jury sittings.

Counsel for the plaintiff objected to the case being traversed. He stressed the delay and expense which would result, and the fact that he was in no way to blame for what had occurred. He expressed his willingness to have the trial continue either with or without a jury. The learned trial judge held, and it was conceded by counsel before us, that counsel had no intention of bringing about the mention of insurance.

After hearing both counsel fully the learned trial judge made his ruling as follows:—

His Lordship: I want to have everything on the record. I have an unpleasant duty to perform in these matters, as I have to announce my decision. My decision on this motion is that I will not strike out the jury, nor will I postpone the trial to the next court. I will, however if counsel consent, let the trial proceed before me without a jury. I do this for a number of reasons. The first and main one is the fact that this whole question of insurance was brought out by a witness produced by the defendant and by counsel for the defendant. I put myself on record that I do not for a moment impute that it was done deliberately. I think it was unfortunate that the witness was asked about the interviews, and without first discussing the interviews with her. It is exactly what you might expect to be the answer you would get if she did go to some insurance man and was not warned against mentioning it. That one point alone is sufficient for my decision, the evidence having been brought out by a witness from the side that now wants the jury struck out; and, unless by consent of counsel for the other side, I am of opinion that I should not strike out the jury.

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Secondly, I do not think there is any miscarriage of justice here, in any event. She explained very well that she went to an insurance agent—it may have been to get advice for herself—and she did not see the party who interviewed her, and she then went to a solicitor’s office, and saw who she thought was a solicitor. She there discussed the matter with the solicitor, and the evidence coming out as it did, it might appear to the jury that it was likely that both sides were insured; I have grave doubts that the jury would think that only one of those cars was insured unless told otherwise, and I have already warned them not to discuss the matter with any of the parties, and that they must rely on the evidence.

As to mentioning about the solicitor being from Toronto, I always dislike that, and I must be frank about it, but I hear it so often. At the sittings of a court not far from this one, a certain prominent counsel never fails to bring out that fact, if it exists, no doubt hoping that the jury in that jurisdiction will give more weight to the contention of counsel who live within the jurisdiction. So, if this goes on, I will be glad to see the air cleared, but I think it is not a matter of deliberateness in bringing out the question of a party being insured. It is a matter of who brought it out and as a result of what questioning or what line of questioning, of a particular witness. Had this information been brought out by counsel for the plaintiff, I would have had a much more serious matter to deal with, but as I understand the law, and I have dealt with similar motions before, I feel that it is pretty well settled that it is a matter of which party’s witness brings out the information about insurance, and as a result of questioning by counsel representing which party. So, I mustrefuse the motion. I do, however, give counsel the option as to whether he wants to proceed with this jury or proceed without. Perhaps he wishes to talk it over, or think it over for a minute or two. I will give him that right.

Counsel for the plaintiff then said:—

I think I have already gone on record that I will be content with a trial in either manner—either by your Lordship without a jury or with a jury.

All relevant portions of the arguments of counsel and the observations of the learned trial judge are set out in the reasons for judgment of Laidlaw J.A. and it is not necessary to reproduce them here.

The majority in the Court of Appeal were of the view that the learned trial judge had concluded that the jury would not reasonably infer that the defendant was insured and that his finding in this regard and his ruling that the trial should proceed with a jury ought not to be interfered with. With the greatest respect, I do not attach the same meaning to what was said by the learned trial judge as do the majority of the Court of Appeal. It appears to me that it was his view that the jury might well infer that both parties were insured. If it were necessary to decide the

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probable effect upon the jury of Miss French’s evidence I would incline to agree with the view expressed by Laidlaw J.A. as follows:—

It is my opinion in the present case that the jury would probably infer that the defendant was insured. They would have in mind that Miss French who made the statement about insurance was a passenger—the only passenger—in the motor vehicle owned and driven by the defendant, and that she was the fiancée of the defendant. They would reasonably and probably feel that she would not willingly do anything, or say, anything, to hurt or prejudice the defendant’s position in the matter of a claim against him, but on the contrary, would want to do anything she properly could to protect his interest. Therefore, the jury would conclude that when she did not know what to do after she was interviewed by a lawyer whom she did not know, and went to “the”—not “an” insurance man for advice, it was the insurance man who represented or was connected with the insurance company that insured the defendant. That is the conclusion which, in my opinion, should have been reached by the learned trial judge..

I do not understand there to be disagreement between the learned Justices of Appeal as to the principles to be deduced from the cases discussed in their reasons. They appear to me to agree (i) that where something occurs during the course of the trial from which the jury may reasonably infer that the defendant is insured the services of that particular jury should be dispensed with; (ii) that the trial judge should afford counsel a full opportunity of making submission before deciding what course should then be followed; and (iii) that having done so it is for the trial judge to decide whether to continue the trial himself without a jury or to direct that the case shall proceed before another jury. I respectfully agree with Laidlaw J.A. that the application of these principles is not dependent on the answer to the question as to which counsel inadvertently brought about the mention of insurance.

I do not think it necessary to review the line of cases discussed in argument which establish the rule, in Ontario, that the discretion of the trial judge as to whether the trial shall proceed with or without a jury will not be interfered with by an appellate court except in extreme cases. The Court of Appeal has, however, interfered when the trial judge in reaching his decision has misdirected himself as to the rules by which he should be guided. An instance of this is to be found in Logan et al. v. Wilson et al.[2]

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It is said that in the case at bar the learned trial judge wrongly directed himself that the fact that the question of insurance was brought out by a witness called for the defendant in answer to a question put by counsel for the defendant was decisive against the defendant’s motion, and accordingly did not exercise any discretion in arriving at his decision.

It appears to me that in substance what occurred was as follows. The learned trial judge refused to traverse the case for trial by another jury, and wrongly, in my respectful view, said that the trial should proceed to conclusion before the same jury. If the matter had ended there I would have found myself in respectful agreement with Laidlaw J.A. as to the proper disposition to be made of the appeal. But, having made this decision, the learned trial judge proceded to make it plain that, while he would not traverse the case for trial with another jury, he could complete the trial himself without a jury if both counsel consented. Counsel for the plaintiff had already stated that he consented to such a course and he expressly repeated this. In the result while the motion of counsel for the defendant to have the case set over for trial by another jury was definitely refused he was permitted to choose whether the trial should be completed by the learned trial judge with or without a jury. Had the learned trial judge himself decided to continue the trial without a jury it is, I think, clear that the defendant could not have complained successfully. The record before us does not disclose any further statement by counsel for the defendant but it follows from the fact that the trial continued with a jury that he did not consent to the learned trial judge completing it without a jury.

Under the circumstances, although not without hesitation, I have reached the conclusion that the appeal fails. While it was, I think, contrary to the established rule in Ontario for the learned trial judge to proceed with the trial before the same jury against the objection of counsel, he, in effect, gave counsel the choice between following that course and following another proper and permissible course, that of continuing without a jury. It is true that the defendant wanted neither of such courses to be followed, but having declined to consent to the permissible alterna-

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tive it does not appear to me that he should now be heard to complain because the other was adopted. To hold otherwise would bring about the undesirable result that the defendant could take his chance of obtaining a favourable verdict from the jury while remaining free to demand a new trial if the verdict should prove adverse.

I would dismiss the appeal with costs.

The dissenting judgment of Kellock and Estey JJ. was delivered by:—

KELLOCK J.:—This is an appeal from an order of the Court of Appeal for Ontario dismissing an appeal from the judgment at trial in favour of the plaintiff, respondent, entered after the verdict of a jury in an action and counterclaim arising out of a collision between motor cars. The appeal is taken upon the ground that, during the course of the examination-in-chief of a witness for the defendant, information was disclosed from which the jury might reasonably infer that the defendant was insured. In the court below, the majority, Aylesworth and Mackay JJ.A., were of opinion that in the view of the trial judge it was not open to the jury to draw such inference. Laidlaw J.A., dissenting, being of a different opinion, would have allowed the appeal. The learned trial judge, in the course of his reasons, said:

The evidence coming out as it did, it might appear to the jury that it was likely that both sides were insured.

I find myself in agreement with the view of Laidlaw J.A. as to the construction to be placed upon this finding and, with respect, on consideration of the evidence of the witness in question, I think that this view is well founded. We heard no argument founded on the possibility that the jury might, from what occurred, also draw the inference that the plaintiff was insured, so that the case is to be considered apart from such a question. It is to be observed that the learned trial judge absolved the appellant’s counsel of anything other than inadvertence in connection with the disclosure in question.

The appellant contends in these circumstances, that the proper course which ought to have been pursued by the trial judge, was to have dismissed the jury and, after having obtained the views of counsel as to continuing with-

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out the jury or traversing the case to another jury sittings, should have exercised his discretion as to one or the other course, but that he ought not to have, as he in fact did, continued the trial with the same jury.

For the respondent it is argued that the appellant has not gone far enough and that it was uncumbent upon him to show that there had been an actual miscarriage in that, for example, the verdict was perverse or the damages were excessive. Reliance was placed upon the provisions of s. 27(1) of the Judicature Act, R.S.O. 1937, c. 100, which provides that

A new trial shall not be granted on the ground of mis-direction or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to the jury, or by reason of any omission or irregularity in the course of the trial, unless some substantial wrong or miscarriage has been thereby occasioned.

In Loughead v. Collingwood Ship Building Company,[3] the defendant applied to a Divisional Court for a new trial upon the ground that during the cross-examination of one of its witnesses, counsel for the plaintiff, against the objection of counsel for the defendant, was permitted to prove that the defendant company was insured. The majority, Falconbridge C.J. and Riddell J., in directing a new trial, held that it was not a case of improper admission of evidence, with respect to which Consolidated Rule 785, the predecessor of s. 27 of The Judicature Act, would be an answer. In their view, the mere putting of such a question to a witness did the mischief and placed the defendant “in a position of manifest and incurable disadvantage.”

They held that the proper course which the trial judge ought to have pursued in the circumstances was that above set out in the contention of the appellant.

On the other hand, Anglin J., as he then was, was of opinion that while prior to the rule a clear case for a new trial would have been made out, nevertheless, the rule forbade such a course unless a substantial wrong or miscarriage were shown. In his opinion, that had not been established. The view of the majority prevailed in the Court of Appeal,[4] the appeal being dismissed.

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We were referred on the argument to the decision of the Divisional Court in Mitchell v. Heintzman,[5] but if there is anything in that decision opposed to the decision of the Court of Appeal, it cannot, of course, stand. The court in Mitchell’s case would appear to have thought that the facts did not bring the case before them within the principle of the earlier decision. I take the law, therefore, to be established as laid down in Loughead’s case, with which I respectfully agree. While it may come about that as a result of compulsory insurance or other circumstances, the mention of insurance before a jury may lose the significance which, up to the present, it has been considered to have in cases of the character under discussion, I do not think that circumstances have sufficiently changed since that decision to render its principle no longer applicable.

In Fillion v. O’Neill[6], a witness for the plaintiff, in answer to a question put by the learned trial judge, gave information which, in the view of the learned judge, disclosed that the defendant was insured. Thereupon he discharged the jury without giving the plaintiff’s counsel the right to “elect” whether to go on without the jury or to have the case stand over to another jury sittings. An appeal was allowed on the ground that the plaintiff had been deprived of “a substantial right” which the same court in the later case, Craig v. Milligan[7], defined as the right to place his position fully before the learned trial judge. Having done so, however, the court held that the learned trial judge in such case, after hearing both parties, is not bound by any election or preference of either of the parties. He is entitled to exercise his own discretion under s. 55(3) of The Judicature Act, but he must not continue the trial with the existing jury.

In the case at bar, at the close of the evidence given by the witness who had made the disclosure as to the insurance, counsel for the appellant applied to the learned trial judge in the absence of the jury, to traverse the case to another sittings. On the other hand, counsel for the respondent took the stand that the learned judge had “an extremely wide discretion as to whether you will carry on with the jury or not,” and that he was content to have

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the case proceed before the learned judge either without the jury or with the existing jury, but he opposed any traverse.

At the conclusion of the argument, the learned judge decided that he would not, of himself, strike out the jury or traverse the trial, but that he would, with the consent of counsel, strike out the jury. He founded his decision upon the fact that the disclosure had come about as a result of a question by counsel for the appellant and that “that one point alone” was sufficient for his decision. In the second place, he said he did not think there was any miscarriage of justice for the reason that, as set out above, it might appear to the jury that it was likely that both parties were insured. The learned judge, however, made it very clear that

It is a matter of who brought it out and as a result of what questioning or what line of questioning of the particular witness. Had this information been brought out by counsel for the plaintiff, I would have had a much more serious matter to deal with, but as I understand the law and I have dealt with similar motions before, I feel that it is pretty well settled that it is a matter of which party’s witness brings out the information about insurance, and as a result of questioning by counsel representing which party.

He concluded as follows:

So I must refuse the motion. I do, however, give counsel the option as to whether he wants to proceed with this jury or proceed without.

During the course of the argument, counsel for the appellant had offered to refer his Lordship to the authorities, but the learned trial judge said that he was familiar with them. It is plain, however, that his decision was given upon a mistaken view as to what had been laid down in those authorities. It is irrelevant whether the information is disclosed in answer to a question by either counsel or by the learned trial judge, where, as here, the examining counsel is found by the trial judge to be innocent. The authorities are equally clear as to the course which the learned judge ought to have taken.

The foundation of the decision in Loughead’s case is that it is to be assumed that a fair trial cannot be had if evidence is given in a case from which the jury may conclude that the party against whom liability is sought to be enforced, is insured. Accordingly, the proper course for an appellate court to follow would be to direct a new

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trial unless there can be said to be anything in the particular circumstances of the case at bar by reason of which the appellant should be held to have lost that right. In my opinion, that situation does not exist.

In the first place, the course actually followed in completing the trial was one which was not open to the learned trial judge. That course was taken because the appellant refused a consent he was under no obligation to give. He had given a jury notice and was quite entitled to ask that the trial of the action and counterclaim take place before a jury. While it is quite true that, in the exercise of his discretion, the learned judge could have tried the case without a jury whether the appellant consented or not, and that, had he done so the appellant could not have complained, the decision of the learned judge was not reached in the exercise of any discretion vested in him, but in reality in abdication of the discretion he did have, the course taken being in no way induced or contributed to by the appellant. I therefore think that the “choice” offered the appellant is irrelevant with reference to the question now under consideration, and I do not think it ought to be held against the appellant that counsel did not persist, in the circumstances, in putting forward his view of the law after judgment.

I would therefore allow the appeal with costs here and in the court below. As the abortive trial was contributed to by the respondent, as I have already pointed out, I think the costs of that trial ought to be reserved to the discretion of the judge presiding at the new trial.

Appeal dismissed with costs.

Solicitors for the appellant: Richardson & Shearer.

Solicitors for the respondent: MacKay & McAvoy.