DATE: 20061201

DOCKET: C43683

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

[1] The appellant appeals the dismissal of her action for a declaration of entitlement to statutory accident benefits.

[2] Even 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.

[3] The 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.

[4] We 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.

[5] Costs 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.”