790/03
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, whAlEn AND molloy JJ.
B E T W E E N:
VERONICA GRAVESANDE
Appellant/Plaintiff
- and -
THE CORPORATION OF THE CITY OF TORONTO and the TORONTO TRANSIT COMMISSION
Respondents/Defendants
John Cannings, for the Appellant
James Flaherty and Michael Chadwick, for the Respondent/Defendant City of Toronto
HEARD at Toronto: June 15, 2005
I. NATURE OF PROCEEDINGS
1The appellant/plaintiff, Veronica Gravesande, appeals to this court under s. 19(1)(c)(iii) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, from the judgment, dated December 3, 2003, of Rouleau J., dismissing the appellant’s claim following a three (3) day non-jury trial at Toronto. General damages were assessed at $20,000. Special damages were agreed at $825. The trial judge fixed costs at $8,000, all inclusive, payable by the plaintiff to the City of Toronto.
2In view of the disposition of the main action, the trial judge dismissed the third party action.
3The appellant asks that the judgment at trial be set aside and judgment be granted in the amount of the damages assessed at trial, or, in the alternative, that a new trial be ordered.
4In the event that the appellant succeeds on this appeal, there is an appeal by the City of Toronto (790/03) seeking judgment against the third party. The third party claim of the City of Toronto was dismissed by the trial judge after he dismissed the main action.
II. NATURE OF THE CLAIM
5The appellant, then a sixty-four (64) year old woman alleges that on July 12, 2002, at about 2:30 p.m., while accompanied by her eight (8) year old grandchild and her four (4) year old grandchild, she made her way to a Toronto Transportation Commission (TTC) bus stop at the North East corner of Finch Avenue East and Warden Avenue in Toronto. En route to the bus stop, the plaintiff fell and suffered the injuries shown in the three photographs filed as Exhibit #21 (Appeal Book: Tab 109).
6The plaintiff alleges that she tripped and fell over the edge of a concrete bus shelter pad, which was exposed after the shelter had been removed.
7As the trial judge said at page 2 of his reasons: “the issues in the trial are the cause of the plaintiff’s fall and the extent of the injuries”.
III. REASONS OF THE TRIAL JUDGE
8After hearing the evidence and the submissions of counsel, the trial judge gave twenty (20) pages of oral reasons. He said, in part:
Page 7 “The plaintiff testified that other than the edge of the concrete pad there were no tripping hazards on the hard surface of that corner. When shown the ambulance and hospital records, which both recorded being advised that the plaintiff had fallen while running for the bus, she could not explain why these notes were made and denied having made any such statements.
Page 8 There were no reports of a dangerous situation at the corner of Finch and Warden, and none of its [City’s] patrols made any notation of the concrete pad.”
Page 10 He [Bruce Crosby, the TTC bus driver] was familiar with the corner and testified that when the fall occurred the concrete pad at the corner had been wrapped in two to three layers of yellow caution tape.
He could not, however, explain how the tape would be held in place along the northerly edge of the concrete pad as this edge was flush with the surrounding hard surface.
He testified to having a clear view of the plaintiff as she and her two grandchildren moved at a hurried pace towards the bus.
Page 11 He was clear that the fall had nothing to do with the concrete pad… He noted nothing in the area that could have caused the plaintiff to stumble where she did.
Page 14 In the present case the plaintiff bears the burden of proof. According to the plaintiff, when she fell she did not know how it happened. She says that it is what she recalls Mr. Crosby mumbling to her that was the trigger that led her to conclude that she had in fact tripped on the concrete pad.
Page 15 To accept this version of how the fall occurred I must totally reject Mr. Crosby’s direct and unequivocal evidence. In effect I must find that his evidence is a total fabrication. I simply cannot do so.
In my view, Mr. Crosby gave frank and straightforward testimony. While there is always room for some error or mistaken recollection in the testimony of a witness, this would not suffice to reconcile his evidence with the version of events I would need to find in order for the plaintiff to be able to succeed. I would have to find Mr. Crosby lied and I do not.
Page 16 Other than what Mr. Crosby allegedly mumbled to the plaintiff, Mr. Crosby’s evidence is generally, with small exceptions, consistent with the plaintiff’s evidence. The plaintiff did not know how she fell and it is only after the fact that she assumed that she hit her foot on the edge of the concrete pad. She no doubt now firmly believes that this is how it occurred, but that does not make it so.
With respect to what she believes she heard Mr. Crosby mumble to her, I can only conclude that she is mistaken. Mr. Crosby testified and he did not confirm making any such statement. In fact, from his evidence it is clear that he would not have made such a statement.
The plaintiff pointed to certain discrepancies in Mr. Crosby’s evidence and inconsistencies between his version of the events and the physical evidence such as the location of the blood stains. She submits that this should lead to the conclusion that Mr. Crosby gave false testimony.
I do not consider that there are significant discrepancies or inconsistencies. To the degree that there are, these are, in my view, honest mistakes that do not go to the essential aspects of his observations.”
Page 18 In conclusion, on this point I find that the plaintiff has not established on a balance of probabilities that the fall occurred as a result of her having tripped on the edge of the concrete pad.
Since there is no suggestion that any other hazard existed in the area that could have caused the plaintiff’s fall, I conclude that the plaintiff simply stubbed her toe on the hard surface as she rushed towards the bus and that this was the cause of her fall. There is no liability for this on the defendant.”
VI. GROUNDS OF APPEAL
9The appellant’s factum states:
“The appellant submits that the Learned Trial Judge made the following errors during the course of the trial:
a) erred in limiting the Appellant’s counsel’s cross-examination of the TTC bus driver, Mr. Crosby;
b) erred in accepting the inconsistent, contradictory and unsupported evidence of the bus driver, Mr. Crosby, and ignoring the preponderant evidence of the Appellant; and
c) the Reasons for Judgment erroneously reached conclusions that are not supported by any of the evidence.”
Grounds (b) and (c)
10These grounds of appeal revolve around the decision of the trial judge to accept the evidence of the TTC bus driver, Mr. Bruce Crosby, in preference to that of the appellant/plaintiff, resulting in a finding that the appellant had not satisfied the onus that the defendant City caused her injuries through its negligence.
11The trial judge saw and heard the witnesses and viewed the exhibits. There is no basis to suggest that the trial judge misapprehended or misunderstood any of the evidence. A reading of the trial judge’s reasons shows that he neither ignored nor failed to analyze any relevant evidence. Having heard the evidence and having seen the witnesses, the trial judge did what a trier of fact is obliged to do:
(1) made findings of credibility,
(2) made findings of fact on the evidence that he accepted and drew reasonable inferences from the facts, as found, and
(3) applied the law to the facts and inferences.
9In my view, the trial judge did not commit any palpable or overriding error in concluding that, on a balance of probabilities, the appellant/plaintiff did not trip on the edge of the raised concrete pad. There is ample evidence to support the trial judge’s findings.
10In Hodgkinson v. Simms, 1994 70 (SCC), [1994] 3 S.C.R. 377, 425, the court said: “It is axiomatic that a reviewing court must exercise considerable deference with respect to a trial judge’s findings of fact, all the more so when those findings are based on credibility.”
11In Schwartz v. Canada (1996), 1996 217 (SCC), 133 D.L.R. (4th) 289, 305, the Supreme Court of Canada said: “This explains why the rule [that appellant courts must treat a trial judge’s findings with great deference] applies not only when the credibility of witnesses is at issue, although in such a case it may be more strictly applied, but also to all conclusions of fact made by the trial judge.”
12In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 255 the court said: “…although the same high standard of deference applies to the entire range of factual determinations made by the trial judge, where a factual finding is grounded in an assessment of credibility of a witness, the overwhelming advantage of the trial judge in this area must be acknowledged…The essential point is that making a factual conclusion, of any kind, is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review.”
The same court said at para. [21]: “…the standard of review is not to verify that the inference can be reasonably supported by the findings of fact by the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, which implies a stricter standard.”
13In my view there is no merit in these grounds of appeal.
Ground (a)
14At page 2 of his reasons for judgment, the trial judge said, in part: “The Toronto Transit Commission was originally a defendant in the main action but on consent the claim against it and related cross claims have been dismissed without costs. There was also a fourth party claim which has also been dismissed without costs.
15The record does not show exactly when the order dismissing the action against the TTC was taken out.
16On October 27, 2003, Dina Stigas, counsel to the TTC, wrote a letter to all the other counsel and said, in part:
“Please be advised that I have spoken with our bus operator, Mr. Bruce Crosby, who witnessed Ms. Gravesande fall. If this matter proceeds to trial, I will be calling Mr. Crosby as a witness.
Mr. Crosby will say the following:”
There follows a page and a quarter of “bullets” wherein Ms. Stigas summarizes what she anticipates Mr. Crosby will say if she called him as a witness. The last paragraph of the letter states “this evidence clearly contradicts the allegations of the plaintiff”.
17Thus, over a month prior to the commencement of the trial on December 1, 2003, all counsel had the letter from the solicitor for the TTC advising what Mr. Bruce Crosby would say if called as a witness by counsel for the TTC.
18Because the claim in this case was less than $50,000, it is governed by the “simplified” procedure enacted under rule 76. Counsel advise us that, in rule 76 matters, a practice has grown up in Toronto for counsel to exchange “will say” statements, although it is not provided under the rules. Counsel point out that under the simplified procedure of rule 76 there are no examinations for discovery, cross-examinations on affidavits or examination of witnesses on a motion (rule 76.04).
19At trial, regarding Mr. Crosby’s “will say”, counsel for the appellant took the position: “well, your Honour, this is a representation made by this man’s lawyer while the TTC was a party to these proceedings” and argued that he should be able to cross-examine on the “statement” as permitted by s. 21 of the Ontario Evidence Act.
20The witness Mr. Bruce Crosby, the TTC bus driver, was interviewed prior to trial by Mr. M.W. Chadwick, who was counsel for the third party at trial. The trial judge held that counsel for the appellant was entitled to cross-examine Mr. Crosby as to: whether his evidence was tailored, whether Mr. Chadwick aided/assisted his recollection, whether his discussion with Mr. Chadwick caused him to change his evidence, whether Mr. Chadwick told him what to say or what not to say. However, the trial judge refused counsel for the plaintiff the opportunity to cross-examine Mr. Crosby on the “will say” forwarded to Mr. Cannings by the TTC solicitor. See transcript of evidence: Volume 2, p. 99 to p. 109. At p. 109, the transcript states:
“THE COURT: Are you content with the ruling? It doesn’t unduly limit you at this point, doesn’t limit you at this point anyway?
MR. CANNINGS: Well, it completely interrupts the flow of my cross-examination, but other than that it doesn’t limit me, Your Honour.
THE COURT: Well, we will hope the flow is not too interrupted. That is going to be up to Mr. Chadwick to ensure the flow is not interrupted. Okay, go ahead.”
21The trial judge was not prepared to hold that the letter of October 27, 2003 was a “statement reduced to writing” as that term is used in s. 21 of the Ontario Evidence Act.
22In my view, here, the document in question is not similar to the document considered by the Court of Appeal in R. v. Morgan (1993), 1993 14713 (ON CA), 80 C.C.C. (3d) 16. There, the document was described as “an accurate transcript of the things said by the witness during his interviews”. Here, we have a solicitor’s summary of what she recalls Mr. Crosby said.
23In any event, even if the letter of October 27, 2003 did constitute a “statement reduced to writing”, in fact counsel for the appellant did cross-examine Mr. Crosby at great length about what was in the October 27, 2003 letter. In other words, there was no substantial wrong or miscarriage of justice.
The Courts of Justice Act, R.S.O. 1990, c. 43, as amended, states:
Section 134(6) “A court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred.”
24In my view there is no merit to this ground of appeal.
V. RESULT
25The appellant’s appeal is dismissed. In view of the dismissal of the appellant’s appeal, the appeal of the City of Toronto is also dismissed.
VI. COSTS
26If counsel are unable to agree as to costs within fifteen (15) days of the date of the release of these reasons, counsel for the City of Toronto shall file a draft bill of costs together with brief written submissions. Thereafter, counsel for the appellant, if so advised, may file a response within a further ten (10) days. Thereafter, counsel for the City, within a further five (5) days, may file a reply. Thereafter, costs to be fixed.
O’DRISCOLL J.
WHELAN J.
MOLLOY J.
Released:
COURT FILE NO.: 763/03
DATE: 20051005
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, whAlEn AND molloy JJ.
B E T W E E N:
VERONICA GRAVESANDE
- and -
THE CORPORATION OF THE CITY OF TORONTO and the TORONTO TRANSIT COMMISSION
REASONS FOR JUDGMENT
o’driscoll J.
Released: October 5, 2005