[9] The positions of the parties are, briefly, as follows. 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.
[10] 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. Polhamus who did not attribute fault to Ms. 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.
[19] As for the verdict lacking a foundation in law, I find 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. In my view, 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.
[20] Based on all of the above, the plaintiffs’ motion is dismissed. Counsel shall contact my assistant Robyn Pope at Robyn.Pope@ontario.ca to set up a conference call to deal with next steps and costs of this motion.