Court of Appeal for Ontario
Date: 2019-04-12 Docket: C62923
Judges: Lauwers, Pardu and Nordheimer JJ.A.
Between
Tiffany Peters Plaintiff (Appellant)
and
John Chasty Principal, Peel District School Board, Robin Benmergui Vice Principal, Lola Gayle Vice Principal, Lana Del Maestro Track Coach
Defendants (Respondents)
Counsel
Julius Omware, for the appellant
Jennifer Guy and Brendan Hughes, for the respondents
Heard
April 10, 2019
Appeal Information
On appeal from the judgment of Justice D. L. Edwards of the Superior Court of Justice, dated August 2, 2016, with reasons reported at 2016 ONSC 4788, and from the costs order, dated September 12, 2016.
Reasons for Decision
[1]
Overview
The appellant was injured while practicing long-jump techniques at Bramalea Secondary School. She was part of the school's track and field team. She sued the school board and several employees, alleging negligence on their part which caused her to suffer injury. The trial judge found that the respondents did not breach their duty of care to the appellant and that their actions met the standard of a prudent parent. He accordingly dismissed the action.
[2]
Issues on Appeal
The appellant argues that the trial judge ought to have assessed the evidence differently, and makes several related complaints:
He ought not to have discounted the appellant's credibility because of minor inconsistencies in her evidence.
His reasons were inadequate to come to grips with competing versions of the events and factual matters in dispute.
His failure to make factual findings in favour of the appellant showed bias.
He did not adequately consider the evidence of Dr. Wong, a psychiatrist, although the appellant concedes that the trial judge addressed that evidence at length.
He should have accepted the evidence of Dr. Getahun, an orthopedic surgeon, and the evidence of Dr. Thankappanpillai, a clinical psychologist.
He should not have accepted the evidence of the respondents' experts.
He should have rejected the evidence of the school principal and also the evidence of the track and field coach present at the time of the injury.
He applied a stricter standard to the evidence of the appellant than to the evidence of the respondents' witnesses.
He failed to draw an adverse inference from the absence of written records about the incident.
He failed to consider the implausibility of the respondents' evidence.
He failed to appreciate the evidence, as a whole, either by disregarding important evidence or misapprehending that evidence.
[3]
Analysis
We do not accept these arguments. The question of whether or not the respondents met the standard of care in a negligence action is a question of mixed fact and law. Absent an error in principle or a palpable and overriding error, the trial judge's conclusions are owed deference.
4Here the trial judge delivered comprehensive, detailed reasons after 14 days of trial. His conclusions were clearly linked to the evidence and reasonably available to him on the record. He remarked that some of the inconsistencies in the appellant's evidence were minor, but that others were very significant. For example, the appellant testified that the coach had never instructed her about long jump techniques; this was contrary to her evidence on discovery and a significant inconsistency: Peters v. Chasty, 2016 ONSC 4788, at paras. 12-14. He correctly articulated the standard of care, the norm of a "careful and prudent parent": Peters, at para. 18. We cannot identify any palpable and overriding error in his assessment of credibility, nor any material misapprehension of the evidence.
[5]
Costs
The appellant also asks this court to re-assess the trial judge's cost award in favour of the respondents in the sum of $257,609.89 on the ground of the appellant's impecuniosity. This was a 14 day trial with numerous expert witnesses. It was the culmination of litigation commenced in 2008. We see no error in the trial judge's costs decision.
[6]
Disposition
Accordingly the appeal is dismissed with costs to the respondents on a partial indemnity basis fixed at $21,000, inclusive of disbursements and HST.
P. Lauwers J.A.
G. Pardu J.A.
I.V.B. Nordheimer J.A.