COURT FILE NO.: DC-04-001177-00
DATE: 20050401
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT OF ONTARIO
IN THE MATTER OF ACTION NO. 59/03, BURLINGTON
RE: 967686 ONTARIO LTD. operating as THORNWOOD HOMES v. THE CORPORATION OF THE CITY OF BURLINGTON
BEFORE: MacKENZIE J.
COUNSEL: Mr. G. Limberis, for the Plaintiff/Respondent
Mr. D.G. Boghosian, for the Defendant/Appellant
HEARD: March 18, 2005
E N D O R S E M E N T
[1] This is an appeal by the Corporation of the City of Burlington (the appellant) from the judgment of Deputy Judge King, Burlington Small Claims Court, delivered January 9, 2004, in which the respondent was awarded damages in the sum of $10,000.00 plus interest and costs. The factual background of the case is set out below.
[2] On or about the 9th of March, 2002, a branch from a tree situate on property owned by the appellant broke away from the tree during a wind storm and fell on a vehicle parked on the property of 967686 Ontario Ltd. o/a Thornwood Homes (the respondent). The vehicle suffered physical damage occasioning extensive repairs. The principal of the respondent, Mr. D. Gowans, was without the use of the vehicle for approximately 4.3 months but the respondent as lessee of the vehicle was obliged to make, and made, the monthly lease payments for the period of non-user. The property damage portion of the vehicle owner’s insurance policy covered the cost of repairs to the vehicle. There was no issue between the parties that the physical appearance of the vehicle once repaired was restored to the status quo before the incident.
[3] Those lease payments totalled $4,314.88, comprising four monthly payments at $1,078.72 each. The respondent also claimed as damages the liability it incurred by returning the vehicle to the lessor in July of 2002, prior to the maturity date under the lease for the vehicle. The amount paid by the respondent on early return was $8,935.34.
[4] Although the damages claimed exceeded $14,000.00, the respondent abandoned the excess over the $10,000.00 monetary limit of the Small Claims Court.
[5] As noted above, the Deputy Judge found negligence on the part of the appellant and awarded damages to Thornwood Homes in the full monetary jurisdiction of the Small Claims Court.
[6] The appellant submits that the Deputy Judge erred in finding negligence on the part of the appellant and erred in determining the appropriate quantum of damages if the appellant was liable in negligence to the respondent.
[7] There was no issue that:
(1) In the spring of 2001, Mr. Gowans complained to the appellant about the tree. In response to this complaint, the tree was inspected at that time by a forester/arborist in the employ of the appellant. The inspection at that time was that the tree was found to be in poor condition but not suffering from disease.
(2) In the autumn of 2001, Mr. Gowans’ wife made a further complaint about the condition of the tree. On the 11th of December, 2001, the appellant’s forester/arborist re-attended the site for further inspection. He completed an inspection/maintenance report identifying the tree as an appropriate item for removal but, on the basis of his assessment of the tree’s condition, determined that it should be removed in the spring of 2002.
(3) On March 9, 2002, a storm with very strong winds occurred in the area. A large branch from the tree broke off and fell on the vehicle. Inspection of the branch revealed internal decay of the branch that was not apparent from external examination.
[8] The appellant submits that a finding of negligence against it may follow only if the appellant’s conduct through its employees fell below the standard of care reasonably expected of it in all the circumstances of the case. The appellant further contends that the foresters/arborists who examined the tree on the two occasions were professionals and that accordingly, their conduct and the standard of care attributable to their conduct could only be judged against the standard of care of a reasonable professional forester/arborist operating in the same area. Accordingly, the appellant submits that in the absence of evidence elicited by the plaintiff to challenge or contradict the evidence of the appellant’s arborist/forester, there is no evidence on behalf of the plaintiff on whom lies the burden of proof to properly establish a finding of negligence based on breach of the appropriate standard of care.
[9] In sum, the appellant contends on this point that the mere fact of the tree’s failure due to internal decay or rot that is not apparent to the eye does not create a presumption of negligence on the part of the appellant through its forester/arborist.
[10] The position of the respondent is that the reason for the December 2001 inspection by the appellant’s forester/arborist was the complaint by Mr. Gowans to the appellant as to a branch falling off the tree onto a young woman with whom he was speaking in the vicinity of the tree.
[11] The respondent submits the Deputy Judge’s finding of negligence was based on his acceptance of the evidence of Mr. Gowans that he informed the appellant of the events leading to the December 11th, 2001 inspection and that the Deputy Judge found as a fact the appellant had been notified and was aware of the hazards inherent in the tree’s falling branches. Accordingly, it is contended that the Deputy Judge did follow the proper analysis to determine whether there had been a breach of the standard of care by the appellant’s forester/arborist staff and that evidence of falling branches from the tree slated for removal some four months later constituted an imminent hazard. Accordingly, it is contended that the Deputy Judge correctly found there was a breach of the standard of care on the appellant’s forester/arborist staff and that as damage was caused to the vehicle by the falling branch, the test for negligence was met.
[12] In essence, the question may be put whether it was unreasonable for the appellant’s forester/arborist on the December 2001 inspection to determine that the removal of the subject tree could await the spring removal some four months later or whether there existed an imminent hazard of injury or damage to persons and property if the removal or not effected as soon as possible.
[13] The Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 has set out the standards of appellate review.
(1) The standard of review for questions of law is correctness.
(2) The standard of review for findings of fact and inferences from such findings is that of palpable and over-riding error.
(3) Findings of mixed fact and law are also accorded deference and, absent legal error or palpable and over-riding factual error, are not to be disturbed on appeal.
[14] Palpable and over-riding error simply put means error leading to the conclusion that the trial decision is clearly wrong, i.e. if the decision was contrary to the evidence, if the trial judge had patently misunderstood or misapprehended the evidence, or if there was no evidence whatsoever to support the trial judge’s conclusions.
[15] I am not persuaded that there was no evidentiary evidence for the Deputy Judge’s findings that the appellant, through its employees, had been made aware by Mr. Gowans of the falling branches before the December 2001 second inspection of the tree.
[16] The Deputy Judge was entitled to make a finding as to the credibility of Mr. Gowans on this point. In my view, he was entitled to give weight to this testimony despite the fact that the appellant’s forester/arborist who was the appellant’s witness at the trial had “no record” of any information.
[17] In these circumstances, it is not fatal to the Deputy Judge’s reasoning that there was a failure by the appellant’s forester/arborist to meet the standard of care, even in the absence of evidence for the plaintiff as to the standard of care of a professional forester/arborist. In my view, the key issue was whether it was unreasonable for the appellant’s forester/arborist to await spring removal where, on the Deputy Judge’s fact-finding, the appellant had knowledge of the foreseeable and imminent hazard arising out of branches falling from the tree. In the result, I dismiss the appeal by the appellant from the finding of liability made by the Deputy Judge.
[18] I turn now to the damages findings by the Deputy Judge.
[19] As noted at the beginning of these reasons, the respondent claimed and the Deputy Judge granted in his award $8,935.24, representing the difference between the book value of the vehicle and the sale price realized by the vehicle’s lessor upon the respondent making early return of the vehicle in July of 2002 prior to the maturity date of the lease on the 31st of January, 2005. The respondent submits that the $8,935.34 represents the depreciation in the value of the vehicle on its resale, i.e. the difference between the book value and the proceeds of realization upon early return. The appellant contends that the cost of early termination of the lease, a voluntary act on the part of Mr. Gowans, cannot be properly characterized as depreciation but rather should be characterized as a penalty.
[20] The appellant’s position is that there is nothing in the lease that refers to a reduction in value of the vehicle arising from “stigma” from having been damaged and repaired, for which loss in value the lessor would be liable to the lessor. The appellant points out that this is the situation even at the maturity date of the lease and accordingly, there could be no “stigma”, loss or depreciation arising out of early termination. In sum, the appellant submits the loss of $8,935.34 arising out of the early termination by the respondent of the lease is not compensable by the appellant in relation to its negligence; the only compensable loss and proper head of damages for the respondent is the four months lease payments previously referred to.
[21] I accept this submission. The respondent’s loss of $8,935.34 arose through the voluntary act of the respondent and lacks the required nexus to the appellant’s negligence.
[22] In the result, the appeal against liability is dismissed. The appeal as to the damages award is allowed, in part. An order will go substituting for the damages award in the judgment below the sum of $4,314.88 in place of the judgment sum of $10,000.00.
[23] In the absence of any Rule 49 offers and in light of the mixed results of the appeal, I order the trial costs awarded by the Deputy Judge to the respondent shall stand but shall be set off in their entirety against the costs of the appellant herein, which I fix in the same amount as the trial costs award, namely, fees of $350.00, plus court costs.
MacKENZIE J.
DATE: April 1, 2005
COURT FILE NO.: DC-04-001177-00
DATE: 20050401
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT OF ONTARIO
IN THE MATTER OF ACTION NO. 59/03, BURLINGTON
RE: 967686 ONTARIO LTD. operating as THORNWOOD HOMES v. THE CORPORATION OF THE CITY OF BURLINGTON
BEFORE: MacKENZIE J.
COUNSEL: Mr. G. Limberis, for the Plaintiff/Respondent
Mr. D.G. Boghosian, for the Defendant/Appellant
ENDORSEMENT
MacKENZIE J.
DATE: April 1, 2005