Filanovsky v. Filanovsky, 2017 ONCA 28

Court of Appeal for Ontario

Date: 2017-01-17 Docket: C57747

Judges: Strathy C.J.O., MacPherson and Hourigan JJ.A.

Between

Victoria Filanovsky Plaintiff (Appellant on Appeal)

and

Igor Filanovsky and Tatyana Filanovsky Defendants (Respondents on Appeal)

Counsel

Joseph W.L. Griffiths, for the appellant

J.L. Lee Mullowney, for the respondents

Heard: January 11, 2017

On appeal from the judgment of Justice Bonnie R. Warkentin of the Superior Court of Justice, dated September 13, 2013.

Endorsement

[1]

Background

The appellant, who was 45 years old at the time of trial, sued her parents for alleged physical and emotional abuse while she was a child. Her claim alleged violent and repeated blows to her face and head, resulting in traumatic brain injuries.

2The trial judge dismissed her claim, after a 10-day trial, which included evidence from multiple witnesses, including: the appellant, her mother and father; the appellant's brother; expert witnesses on both sides; four witnesses whose evidence was adduced by the appellant by way of affidavits and answers to written questions; and three witnesses whose evidence was adduced by the respondents in the same fashion.

3The trial judge expressed significant doubt about the veracity of the appellant's allegations and found the evidence of the respondents and the appellant's brother more credible, considering all the evidence. She concluded that the appellant had failed to establish her claim on a balance of probabilities.

[4]

Analysis

The appellant submits the trial judge made three errors which require a new trial.

[5]

Failure to Consider Core Issue of Physical Abuse

First, she submits that the trial judge failed to consider the core issue of whether she was subjected to physical abuse by her father and instead focused on whether she reported the alleged abuse.

6We do not accept this submission. The appellant herself adduced affidavit evidence of third parties to whom she had allegedly reported the abuse when she was a child. One affiant, a former teacher, reported seeing a small bruise on the appellant's neck. Another, a former neighbour, once saw the appellant with a black eye. A former schoolmate saw bruises on the appellant's forearms on one occasion. The appellant told her schoolmate and her teacher that her parents were responsible for the bruises.

7None of these witnesses reported that they actually observed violence. Nor did they observe any conflict between the appellant and her parents. As the trial judge noted, their evidence was confined to what the appellant reported to them about conflict in the home and their observations of the appellant. Having concluded that the appellant's evidence was unreliable, the trial judge was entitled to discount the third party evidence, as she clearly did, because it was based on the appellant's self-reporting.

8In response, the respondents adduced the affidavit of a police officer who, in 2003 and 2007, had investigated complaints of assault made by the appellant (and had interviewed both the teacher and the neighbour) and had closed his file after concluding that there was no evidence of any assaults having occurred.

9It was incumbent on the trial judge to review the evidence concerning reports of abuse and she did so. It did not, however, divert her attention from the core issue of whether abuse had in fact occurred. The trial judge rightly focused on the evidence of the parties and the appellant's brother and the expert evidence adduced by both sides. She noted that there was nothing in the appellant's medical history to corroborate her claims. After hearing all the evidence, she rejected the appellant's evidence and accepted the respondents'.

[10]

Inadequate Reasons

Second, the appellant submits the trial judge failed to provide adequate reasons, to explain why her claim was dismissed and to provide a basis for appellate review.

11We reject this submission.

12Reasons are necessary: (a) to justify and explain the result; (b) to explain to the losing party why she lost; (c) to provide public accountability and to satisfy the public that justice has been done; and (d) to permit appellate review. See R. v. Sheppard (2002), 162 C.C.C. (3d).

13The sufficiency of reasons is not a free-standing ground of appeal. If the reasons do not permit meaningful appellate review, appellate intervention may be justified: see for example, Dovbush v. Mouzitchka, 2016 ONCA 381, at para. 22.

14Here, the trial judge gave lengthy reasons, in which she analyzed the evidence of all witnesses. She found inconsistencies in the appellant's evidence, a lack of support for her claim in the evidence of her affiant witnesses and in her own medical history, and found the evidence of the respondents consistent and compelling. In a case in which credibility was the core issue, it is plain from the reasons that the trial judge found that the appellant's evidence was simply not credible.

15In our view, the reasons permit meaningful appellate review and we dismiss this ground of appeal.

[16]

Misapprehension of Evidence

Third, the appellant submits the trial judge misapprehended portions of the evidence, failed to appreciate relevant evidence and made findings of fact that were not based on the evidence. The appellant has failed to identify any such error that, individually or taken together with the others, would rise to the level of a palpable and overriding error in the trial judge's assessment of the evidence.

[17]

Disposition

For these reasons, we dismiss the appeal with costs fixed at $10,000, inclusive of disbursements and all applicable taxes.