Maria Branco, Mario Oliveira, Raquel Oliveira and Joshua Oliveira v. Alexander Ephstein
In this case, the insurer for the defendant did not make an offer to settle and the case went to trial.
At trial, the trial judge made a serious omission in his charge to the jury. His client was successful in persuading the higher appeal court that the jury charge delivered by the trial Judge (which apparently was the standard jury charge in the Province of Ontario at the time) omitted an important explanation on the law of mitigation such that a miscarriage of justice occurred.
This appeal decision sets a legal precedent to assist trial judges in Ontario to correctly explain the law of mitigation to juries. A new trial on damages was ordered without the need to again prove that his client was entitled to damages for pain and suffering. The case subsequently settled out of court.
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