Does the alleged inadequacy of the trial judge's instructions affect the outcome of the appeal?

Concerning the alleged inadequacy of the trial judge's instructions, none of the issues raised on appeal were the subject of objections at trial. As this court said in Rizzi v. Mavros, [2008] O.J. No. 935, at para. 38, the absence of objection suggests that the issue was not seen as central to the jury's deliberations. Particularly in the absence of the closing addresses to the jury, and given the manner in which the trial judge framed the positions of the parties, we are not persuaded that the alleged inadequacies would have had any impact on the jury's deliberations.

The appellant also raises an issue about the admission of alleged hearsay evidence of a statement made by one of the appellant's witnesses. Although this evidence may have been relevant in a general way to the issue of credibility, its primary relevance related to the issue of contributory negligence. Having regard to the jury's finding that the dogs did not attack the appellant, we do not reach the issue of contributory negligence. Once again, appellants’ counsel raised no objection to the admission of this evidence or to the trial judge’s failure to instruct the jury concerning hearsay. Particularly in the absence of the closing addresses, we are unable to conclude that this issue was central to the jury’s deliberations as to whether an attack occurred. Similar considerations apply to the appellants’ argument that the rule in Browne v. Dunn was offended.