Dunn v. Mississauga (City of), 2002 CanLII 4075 (ON SCDC)

COURT FILE NO.: 383/01

DATE: 20021129

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CHADWICK, HOWDEN AND CAPUTO JJ.

B E T W E E N:

KAREN DUNN Plaintiff

• and -

THE CORPORATION OF THE CITY OF MISSISSAUGA and GREG HILLIS Defendants

Counsel: Derek L. Smith, for the Plaintiff David G. Boghosian, Defendants

HEARD: November 29, 2002

ORAL REASONS FOR JUDGMENT

CHADWICK J.: (Orally)

1This is an appeal from a decision of Madam Justice Backhouse dated May 2, 2001. The learned trial judge found the defendant Corporation and the defendant driver negligent and assessed the plaintiff's damages at $22,500, less the statutory deductible of $10,000, pre-judgment interest at five percent and costs to the plaintiff.

2In Supplementary Reasons dated May 8, 2001, the trial judge gave further reasons relating to the application of s.267(1)(6) of the Insurance Act regarding the statutory deduction.

3The appellant, in their Notice of Appeal lists eight grounds of appeal and they are as follows:

(a) The learned trial judge erred in law in failing to make an adverse inference from the Plaintiff's failure to call her treating physician including Dr. Spaner, the family physician who treated the Plaintiff at the time of the incident.

(b) The learned trial judge erred in law in failing to make an adverse inference from the Plaintiff's failure to call any evidence from physiotherapists who allegedly treated her after the incident.

(c) The learned trial judge erred in law in disregarding the expert evidence of Dr. Rathbun on the basis that he failed to bring his handwritten notes to court and preferring the evidence of Dr. Edwards, who was neither an expert in the field, nor the Plaintiff's treating physician at the time of the incident.

(d) The learned trial judge erred in law and wholly misapprehended the evidence in basing her finding of causation and negligence on the sole basis that the Defendant driver "should have started to brake when he first saw the cyclist", which was contrary to the evidence of reasonable care taken by the driver.

(e) The learned trial judge erred in law in finding that the Defendants breached a contract of carriage.

(f) The learned trial judge made a palpable and overriding error in finding that the Plaintiff suffered a chronic back and left hip strain and assessing her general damages at $22,500.00.

(g) The learned trial judge erred in law in applying a deductible of $10,000.00 when she was statutorily required to deduct the sum of $11,216.32.

(h) The learned trial judge erred in law in awarding the Plaintiff costs of a motion for summary judgment in which the Plaintiff did not succeed and for which the Defendant ought to have been awarded solicitor and client costs as well as costs of a motion brought by the Plaintiff on the morning of trial in April 1999 to amend the Statement of Claim which resulted in a two-year delay.

4The test on review is well established in a recent decision of the Supreme Court of Canada in Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 commencing at paragraph 29:

29. "When the question of mixed fact and law at issue is a finding of negligence, this Court has held that a finding of negligence by the trial judge should be deferred to by the appellate courts. In Jaegli Enterprises Ltd. v. Taylor, [1981] 2 S.C.R. 2, Dickson J. set aside the holding of the British Columbia Court of Appeal that the trial judge had erred in his finding of negligence on the basis that "it is wrong for an appellate court to set aside a trial judgment where there is no palpable and overriding error, and the only point at issue is the interpretation of the evidence as a whole" (See also Schreiber Brothers Ltd. v. Currie Products Ltd., [1980] 2 S.C.R. 78.

30. This more stringent standard of review for findings of negligence is appropriate, given that findings of negligence at the trial level can also be made by juries. If the standard were instead correctness, this would result in the appellate court assessing even jury findings of negligence on correctness standard. At present, absent misdirection on law by the trial judge, such review is not available. The general rule is that courts accord great deference to a jury's findings in civil negligence proceedings:

The principle has been laid down in many judgments of this Court to this effect, that the verdict of a jury will not be set aside as against the weight of evidence, unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it.

McCannell v. McLean, [1937] S.C.R. 341, also Dube v. Labar, [1986] 1 S.C.R. 649 and C.N.R. v. Muller, [1934] 1 D.L.R. 768 (S.C.C.). To adopt a correctness standard would change the law and undermine the traditional function of the jury. Therefore, requiring a standard of "palpable and overriding error" for findings of negligence made by either a trial judge or a jury reinforces the proper relationship between the appellate and trial court levels and accords with the established standard of review applicable to a finding of negligence by a jury.

5On June 28, 1996, the plaintiff was a passenger on a bus driven by the defendant Greg Hillis and owned by the defendant Municipality. The cyclist, with a passenger on his handlebars, entered the intersection. The bus driver applied his brakes and another passenger fell forward and injured the plaintiff. The learned trial judge, in her reasons, assessed the conduct of the driver and accepted the evidence of the plaintiff's expert, Mr. Walters, an engineer.

6At page 7 of her reasons she states as follows:

"I accept Mr. Walters' evidence as modified by Mr. Hillis' testimony. I find that Mr. Hillis should have recognized that a cyclist carrying a passenger on the handlebars might not stop at the stop sign and might lack control and should have started to brake when he first saw the cyclist. This is not a situation where the cyclist darts in front of a vehicle at the last second.

Accordingly, I find that the June 1996 accident arose as a result of the negligence of Greg Hillis for whose negligence the Corporation of the City of Mississauga is responsible. I find that there is no credible evidence of independent negligence of the Corporation of the City of Mississauga in its training and procedures."

7On the issue as to whether Ms. Dunn's injuries satisfied the requirements of s.267(1)(b) of the Insurance Act, namely, whether she sustained serious impairment of an important bodily function, the learned trial judge considered the medical records filed, the evidence of Dr. Edwards and the evidence of Dr. Rathbun. She states at page 8:

"My assessment of Dr. Edwards was that of a sensible, not easily-fooled practitioner who would have no patience either for exaggerators or malingerers. I found Ms. Dunn an honest witness who, without exaggeration, described the problems she had. I prefer the evidence of Dr. Edwards to that of Dr. Rathbun. Dr. Edwards' evidence struck me as objective and balanced. On the other hand, Dr. Rathbun was handicapped by a failure to bring his notes and by a lack of any memory of this particular plaintiff. His failure to admit that a back injury would even be exacerbated during pregnancy is typical of Rathbun's unwillingness to even admit the potential for chronic pain in this patient. In the circumstances of this case, the superior opportunity of the plaintiff's physician to observe Ms. Dunn persuades me that Dr. Edwards' opinion is the more accurate."

8The trial judge concludes by finding the plaintiff suffered a chronic back and left hip strain which caused her significant difficulties in caring for her children and to carry on daily living. As such, she found that the plaintiff satisfied the requirements of s.267(1)(6) of the Insurance Act.

9The plaintiff's damages were assessed at $22,500, less the deductible. All counsel agree the trial judge made a mathematical error in deducting $10,000 when the statutory deduction should be $11,216.32. On consent, the judgment will be varied accordingly.

10The appellant argues the trial judge erred in law by not drawing the negative inference when the plaintiff's initial treating physician was not called as a witness. In support of that position, counsel relies upon the case of Vieczorek v. Piersma, 36 D.L.R. (4th) 136 (C.A.) and the Supreme Court of Canada case in Levesque et al. v. Comeau et al. (1970), 16 D.L.R. (3d) 425. The first case involves a 1980 motor vehicle accident and the second case a 1965 accident. In Levesque, Pigeon J., on behalf of the majority states at p. 432:

"A preponderance of probabilities is, therefore, far from being shown.

This is not all. Appellant Lola Levesque's expert examined her for the first time more than a year after the accident, and after she had consulted several doctors and undergone different examinations in the meantime. She alone could bring before the Court the evidence of those facts and she failed to do it. In my opinion, the rule to be applied in such circumstances is that a Court must presume that such evidence would adversely affect her case. The fact that those witnesses all live in Montreal does not make the rule any less applicable. Appellant Lola Levesque should, if necessary, have applied for a rogatory commission. Under the circumstances, her testimony and that of her husband respecting her good state of health before the accident could properly be considered insufficient evidence for the purpose of excluding the other possible causes of deafness."

11It is our view that there is no issue that the plaintiff suffered a soft tissue injury in the accident. The issue is to what extent. Dr. Edwards who is now the treating physician suspects a neurological damage. Dr. Rathbun did not agree. In addition to the Doctors, all of the plaintiff's medical records were filed. The plaintiff was treated at a clinic and over the course of time saw three different physicians. The fact the treating doctor, Dr. Chung had left practice, the Evidence Act allows the filing of medical reports without the necessity of calling the doctor if proper notice is given. This avoids the calling of every doctor who is involved in the case. Under the circumstances, we see nothing improper in the procedure nor the fact the trial judge did not draw an adverse inference. The trial judge obviously accepted the evidence of the plaintiff as to the injuries and the extent they affected her on a day-to-day living.

12The trial judge also found a breach of contract but only devoted two lines of her judgment for that finding. We do not find that significant in view of the findings upon tort. We do not find the trial judge misapprehended the evidence or made any wrongful and overriding errors. There is ample and sufficient evidence to support her finding.

13By way of supplementary issues the appellant raises the issue of costs. In our view, the costs are within the discretion of the trial judge and we are not prepared to interfere with her discretion. The appeal is dismissed.

14I have endorsed the record as follows: "For oral reasons delivered, the appeal is dismissed. On consent the trial judgment is varied to reflect the statutory deduction of $11,216.32 rather than $10,000. Costs $6,000."