Appeal dismissed as trial judges charges were correct and jury verdict was consistent

January 23, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Montepeque v. State Farm

Decision Date: December 7, 2017
Heard Before: Justice Laskin


Was the jury verdict inconsistent?

Early in November 2008 Mr. Montepeque claims that a car travelling towards her on a highway crossed the centre line. She swerved, lost control and her car rolled into a ditch. The other car was not identified and did not stop. Ms. Montepeque was forced to sue her own car insurer under the unidentified motorist coverage of her policy. At jury trial the jury answered “no” to the question of negligence on part of the other driver and thus her case was dismissed. The jury did however, answer “yes” to question 9 - whether there was corroboration another vehicle was involved in the accident.

Ms.  Montepeque raises four issues on her appeal.

  1. Should the verdict be set aside as unjust and unreasonable because the jury’s answers to questions 1 and 9 were inconsistent?
  2. Did the trial judge err in her charge to the jury? Montepeque contends that the trial judge erred in three ways:
    1. She did not properly charge the jury on the standard of care in an emergency situation;
    2. She did not properly charge the jury on the burden of proof; and
    3. Her charge was unbalanced and unfair.
  3. Does the conduct of counsel for State Farm during the trial warrant this court’s intervention?
  4. If the answer to question 1, 2, or 3 is yes, should this court grant judgment for Montepeque in the amount of damages assessed by the jury ($449,900) or order a new trial?

Justice Laskin answered “no” to questions 1, 2 and 3, and would therefore dismiss Montepeque’s appeal.


Sometime between 11:00 and 11:30 P.M., the evening before the accident, Montepeque and her friend Rosa Dominguez went to a bar in London, Ontario. They stayed only a short time. Montepeque said that she did not drink at all at Tiger Jack’s. But while there, she and Dominguez ran into an acquaintance of hers who suggested that they go to another bar in a small town outside London, where his friend was playing music. The other two agreed. Montepeque drove.

The evidence is unclear on how long it took the three to get to the second bar. Montepeque testified that it took “some time” and agreed that it was more than 10 minutes.  The evidence is also unclear on how long the three stayed at the second bar, but Montepeque said they were there for 10 to 15 minutes. The record is unclear when exactly the accident occurred, but on the evidence it seemed to have been sometime between 12:30 and 2:30 A.M.

Montepeque said that she was driving at 85 km/hour, just above the speed limit of 80 km/hour. She said that she was unfamiliar with the highway and was taking directions from her friend. She also testified that the weather was clear, and the road conditions were good. Dominguez confirmed the speed at which Montepeque was driving, but said that the weather was foggy, and the road was wet.

Montepeque testified that she first saw an oncoming car about “half a block away”, as she was approaching a gradual curve in the two-lane highway. At the time, she agreed that the other car looked like it was in its lane. Only when the other car was “exactly in front” of her – she estimated about one metre away – did she notice that it had crossed into her lane.

 Montepeque and Dominguez gave somewhat conflicting versions of the accident. Montepeque said that the headlights from the other car blinded her. She got scared and panicked. She heard Dominguez yelling “be careful!” She closed her eyes and veered her car to the right, causing her to lose control when she hit either snow or gravel on the shoulder. She did not open her eyes until after her car had rolled over in the ditch. When she was asked how far into her lane the other car had come, she replied: “the only memory I have is the lights in front of me coming toward me”. She agreed that they were “headlight to headlight”. She thought that the other car was going faster than hers.

Dominguez, on the other hand, testified that when she first saw the other car, it was in the “middle of the road”. She initially thought that the other car would go back into its lane, but when she realized it wouldn’t, she told Montepeque to “be careful”. She said that at this point, Montepeque was already breaking and turning right to avoid the other car. She said Montepeque lost control of her car after hitting black ice.

Constable Josh McCallum investigated the accident. He arrived at the scene shortly after 2:29 A.M. and immediately took witness statements and prepared a motor vehicle accident report. He said that Montepeque and her two passengers gave generally consistent accounts of what had occurred. He agreed with Montepeque that the weather conditions were good, and the road was clear. He also said that Montepeque’s breath did not smell of alcohol. He examined the road and said he saw skid marks from Montepeque’s car, but not from the other car.

  1. Should the verdict be set aside because the jury’s answers to questions 1 and 9 were inconsistent?

The jury answered “no” to question 1, the fundamental question whether the negligence of an unidentified driver caused or contributed to the accident. The inconsistency on which Montepeque relies is the jury’s answer to another question, question 9, which was required because of her claim under her unidentified motorist coverage policy with State Farm.

As the other driver was never identified, Montepeque claimed under s. 5 of the Ontario Automobile Policy and OPCF 44R Family Protection where an insured claimant has “a legal right to recover as damages from the owner or driver of an uninsured automobile” an amount” up to the limits in this Section.” Section limits coverage to “the minimum limits for automobile liability insurance in the jurisdiction in which the accident happens”, which in Ontario is $200,000.  Section 3 of OPCF 44R provides an insured claimant with excess coverage for an amount over $200,000, up to the amount that the claimant is legally entitled to recover from a driver or owner of an “unidentified automobile”. But to receive the excess coverage amount from one’s insurer, the claimant must meet an additional evidentiary requirement. The claimant’s “own evidence of the involvement” of the unidentified automobile “must be corroborated by other material evidence”. OPCF 44R defines “other material evidence” to mean either “independent witness evidence” or “physical evidence indicating the involvement of an unidentified automobile”.

At trial, Montepeque claimed an amount against State Farm that was available to her only through her excess coverage policy under OPCF 44R. Question 9 was not originally included in the jury charge. In a post-charge conference with the trial judge, Montepeque’s counsel asked for a new question, which addressed the additional evidentiary requirement of OPCF 44R, to be added to the list of questions for the jury to answer. The trial judge agreed, and put question 9 for the jury as follows:

Is there independent witness evidence or physical evidence to corroborate the evidence of Ms. Montepeque, indicating the involvement of an unidentified automobile?

The jury answered this question “yes”. As there was no physical evidence, the jury must have concluded that Dominguez’s evidence corroborated Montepeque’s evidence of the involvement of an unidentified automobile.

Before this court, Montepeque submits that the jury’s answer to question 1 (the negligence of the driver of an unidentified car did not cause or contribute to the accident) and its answer to question 9 (Montepeque’s evidence of the involvement on an unidentified automobile was corroborated by other material evidence) are inconsistent. She contends that this inconsistency yielded an unjust and unreasonable result.

To deal with this issue, Montepeque could have brought a motion at the end of the trial under the Rules of Civil Procedure, which gives a trial judge discretion to direct that an action be retried with another jury where the jury “answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings”. Montepeque did not bring such a motion, however, she is not precluded from raising on appeal an inconsistency in the jury’s answers.

However, the standard of appellate review becomes relevant. In a civil case, an appellate court has a very limited right to set aside the verdict of a jury for unreasonableness. Where the trial judge’s charge is fair and accurate, and correctly states the applicable law, the jury’s verdict will be set aside only where it is so unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it: see Lazare v. Harvey, 2008 ONCA 171 (CanLII).   This standard for appellate intervention is stringent. But like the rest of us, civil juries are not infallible. On occasion they make mistakes.

Justice Laskin noted that if he were convinced that the jury’s answers to questions 1 and 9 were irreconcilable, he would hold that its verdict was so unjust and unreasonable that appellate intervention was warranted. But I am not so convinced.

Questions 1 and 9 address different issues. Question 1 asks whether Montepeque proved on a balance of probabilities that the driver of the unidentified car caused the accident by crossing the center line. Question 9 does not deal with Montepeque’s onus of proof or with causation. It simply asks whether there was corroboration for Montepeque’s evidence of the “involvement” of an unidentified car.

Legal “causation” and mere “involvement” differ. The latter could have existed without the former. There was evidence that supported the jury’s answer to question 1, and yet, at the same time, supported its answer to question 9. In other words, there was evidence that an unidentified car was “involved”, but Montepeque had failed to prove that its driver had crossed the center line.


The following pieces of evidence support the consistency of the jury’s answers to questions 1 and 9:

•        Montepeque was unfamiliar with the highway, yet she was driving above the speed limit;

•        She admitted that the other car was in its proper lane at least up to a half a block away from her;

•        She claimed that she reacted when the other car was “exactly on top of her” or one metre away, a claim that was implausible because if the cars were that close, she could not have avoided a collision;

•        She also said that she closed her eyes as she swerved to the right, casting doubt whether she really saw the position of the other car;

•        She could not tell how far the other car came into her lane, likely because its headlights blinded her, leading to the reasonable inference that the other car may not have been in her lane at all;

•        Montepeque’s evidence and Dominguez’s evidence conflicted on what caused the accident. Montepeque said she lost control as she swerved to avoid the other car; Dominguez said that Montepeque lost control only after she braked and slid on some black ice. This conflict may have caused the jury to disbelieve both accounts of how the accident happened;

•        The other car did not leave any skid marks, from which the jury could infer that its driver did not need to take evasive action because the car was in its proper lane.

The jury’s answers to questions 1 and 9 were consistent, and reconcilable on the evidence. For that reason, the jury’s verdict was not unreasonable.

Did the trial judge err in her charge to the jury?

Montepeque submits that the trial judge’s jury charge contains three errors:

•        It did not properly charge the jury on the standard of care in an emergency situation;

•        It did not properly charge the jury on the burden of proof; and

•        It was unbalanced and unfair.

Justice Laskin noted that he would not give effect to any of three branches of Montepeque’s submission. Two points of context are important. First, the trial judge gave counsel a draft of her charge and invited comments on it before she gave it to the jury. Of the three concerns about the charge now raised on appeal, Montepeque’s trial counsel raised only the first concern with the trial judge, and seemed satisfied with the way the trial judge resolved his concern.


In a civil case, the failure to object at trial is usually fatal on appeal because “it is an indication that trial counsel did not regard as important or necessary the additional direction now asserted”. The trial judge’s charge did not need to be perfect. Absent an error that amounts to a substantial wrong or a miscarriage of justice, or circumstances where the interests of justice otherwise so require, a new trial will not be ordered.

On review of the Trial Judges draft charge, and the trial record, Justice Laskin determined that there was no error in the charges. It would have been preferable for the trial judge to have expressly charged the jury on the shifting burden of proof. But that instruction was not asked for at trial. And the trial judge’s actual instruction conveyed the essence of the parties’ positions. The trial judge charged the jury:

State Farm alleges there was no second vehicle or, alternatively, that if there was another vehicle it was not being driven in a negligent manner that is at no time was the other vehicle in, or partially in, Ms. Montepeque’s lane of traffic.

Justice Laskin also disagreed that the charge was unbalanced and unfair. Counsel for Montepeque had the opportunity both before and after the charge was given to comment on the summary of the evidence on liability. He had one minor objection to the trial judge’s failure to include a piece of evidence. He did not suggest that the summary was unfair or unbalanced. Again, his failure to object is telling.

Humorous remarks in the courtroom

Montepeque’s counsel also complained about counsel for State Farm’s allegedly humorous remarks during his cross-examination of Montepeque’s witnesses. In her ruling the trial judge appropriately found that counsel’s use of humour during cross-examinations was hardly a basis to strike the jury, moreover, the trial judge’s direction to the jury to decide the case based on the evidence and not on the conduct of the lawyers adequately addressed any concern arising from the way in which State Farm’s trial counsel conducted cross-examinations. And, as the trial judge properly noted in her ruling, she had no reason to doubt the jury’s ability to follow her instructions.

Arbitrator Laskin concluded that there was no error in the trial judge’s ruling, and that that this court has no basis to intervene because of the conduct of State Farm’s trial counsel.

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