COURT OF APPEAL FOR ONTARIO
RE:
CARLA SMITH (Plaintiff/Appellant) – and – ZENITH INSURANCE COMPANY (Defendant/Respondent)
BEFORE:
JURIANSZ, MACFARLAND and LAFORME JJ.A.
COUNSEL:
R. Steven Baldwin
for the appellant
Harry Brown and Jennifer Burns
for the respondent
HEARD & RELEASED ORALLY:
November 29, 2006
On appeal from the judgment of justice Richard G. Byers of the Superior Court of Justice dated May 30, 2005.
E N D O R S E M E N T
1The appellant appeals the dismissal of her action for a declaration of entitlement to statutory accident benefits.
2Even if Snell v. Farrell, [1990] 2 S.C.R. 311 has application to this case it does not relieve the burden on the appellant to prove it was more probable than not that the motor vehicle accident caused or contributed to her rheumatoid arthritis.
3The plaintiff’s case depended on the expert evidence of Dr. Keystone. The trial judge was entitled to consider his written opinion that rheumatoid arthritis could develop after a “major” physical or emotional stress. The trial judge was entitled to find on the evidence that the motor vehicle accident was “relatively minor” and so conclude Dr. Keystone’s opinion did not establish it was more probable than not that the accident caused or triggered the onset of the arthritis. We note, as well, the trial judge found the evidence disclosed other possible triggering causes.
4We are not persuaded that the trial judge erred in his approach to causation or committed a palpable or overriding error in assessing the evidence. Therefore, the appeal is dismissed.
5Costs fixed in the amount of $5,000 inclusive of disbursements and GST.
“R.G. Juriansz J.A.”
“J.L. MacFarland J.A.”
“H.S. LaForme J.A.”