Corral v. Aquarium Services Warehouse Outlets, 2006 CanLII 67 (ON SCDC)

COURT FILE NO.: DC-04011304-00

DATE: 20060105

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CARLOS CHARLES CORRAL and AQUARIUM SERVICES WAREHOUSE OUTLETS

BEFORE: Tulloch J.

COUNSEL: G. Z. Bobesich, for the Appellant

W. S. Novak for the Defendant

HEARD: December 2, 2006

On appeal from the decision of Deputy Judge Kenneth McCabe, Small Claims Court, Brampton, October 13, 2004.

E N D O R S E M E N T

1This is an appeal by the plaintiff of a decision rendered by Deputy Judge McCabe sitting as a Small Claims Court judge on October 13, 2004, in which he ruled that the plaintiff had failed to prove on a balance of probabilities that the defendant was responsible for the plaintiff’s loss.

Factual Overview:

2The plaintiff, Mr. Corral, is a hobbyist collector of exotic fish, which are housed in a 200 square feet surfaced outdoor pond located in his backyard. The defendant is the owner of a retail aquarium services outlet with various locations throughout Canada, which provides a wide selection of tropical fish and related services for the production and maintenance of pet fish.

3Mr. Corral has a special affinity for a type of exotic fish called Koi. Over a ten year period, he accumulated 23 Koi fish in his pond. In addition to the 23 Koi, he also had 25 other fish in the pond.

4On August 7, 2002, Mr. Corral purchased four additional Thai Koi fish from the defendant’s store and deposited them in the pond along with the other fish. Upon depositing the four additional Thai Koi fish into the pond, the plaintiff subsequently lost track of them, having no knowledge as to their ultimate fate.

5On August 25, 2002, after returning from a long weekend vacation, Mr. Corral was informed by his mother that four of his Koi had died. Those were not the Koi that were purchased from the defendant. On August 26, 2002, Mr. Corral returned to the commercial premises of the defendant, and provided a sample of water, as well as a sample of live fish to be tested. The defendant’s employees tested the water, and noted that one of the goldfish had red streaks characteristic of a mild bacterial infection. The defendant’s employee recommended that the plaintiff do a regular partial water change, whereupon the plaintiff subsequently purchased a water conditioner from the defendant.

6Within a week of the August 25^th discovery, all the plaintiff’s 23 Koi had died.

7The plaintiff disposed of the dead Koi by means of burial and trash disposal. Thus, no evidence was left, or offered, by which to determine how the Koi had died. At the time the plaintiff disposed of the dead Koi, he was unable to ascertain how the Koi had died, or by what manner, if any, the defendant may have been responsible.

8In January 2004, at a pre-trial hearing, the defendant suggested that the plaintiff’s Koi might have suffered from water stress. Subsequently, the plaintiff researched the matter on the Internet, and came across a report on the subject of Koi Herpes Virus, dated January 2003. Based solely on that Internet document, the plaintiff suspected that his Koi were infected with herpes virus. He further suspected that the herpes virus came from the four Thai Koi that were purchased from the defendant.

9On September 24, 2004, the case proceeded to trial as a Small Claims Court matter before Deputy Judge McCabe. The plaintiff asked for damages in the amount of $10,000, as well as costs for the matter.

10During the first day of proceeding of September 24, the plaintiff sought to enter the Internet document as evidence. The request was refused on the grounds that the plaintiff had failed to give notice to the defendant of this aspect of the claim until the very day of trial.

11After testimony was provided by the plaintiff, the matter was adjourned, and resumed on October 13, 2004, at which time the Internet document was allowed to be marked as an exhibit.

12On October 13, 2004, Deputy Judge McCabe ruled that the plaintiff had failed to prove, on a balance of probabilities, that the defendant was responsible for the plaintiff’s loss. Deputy Judge McCabe, taking note of the fact that the plaintiff had turned down an offer that was greater than what he was able to obtain at trial, awarded the defendant costs in the amount of $700.

13The plaintiff now appeals Deputy Judge McCabe’s decision, submitting that the learned trial judge erred in law based on the following grounds:

(i) He failed to consider both the Sales of Goods Act and the principle of res ipsa loquitur;

(ii) He misdirected himself with respect to the application of the balance of probability test;

(iii) He failed to allow the plaintiff to file a document from the Internet on Koi disease even when that information was public knowledge and available to the defendant.

Analysis:

14The appeal is dismissed for the following reasons. I do not find that the learned trial judge committed any error in law in dismissing the plaintiff’s claim. After considering all the evidence presented at trial as well as the Reasons for Judgment, I am satisfied that the trial judge considered all the evidence and appropriately applied the relevant principles of law to arrive at the conclusion that he did.

15I will deal with the third issue first. It is clear from the evidentiary record that the plaintiff was allowed to file the document which he obtained from the internet. The plaintiff first attempted to file this document on September 24, 2004, the first day of the trial, and was precluded from doing so by the deputy judge due to short notice to the defendant. The judge did adjourn the case however, to October 13, 2004, at which time the internet document was filed as an exhibit in the trial. This exhibit was clearly considered with all the evidence that the trial judge weighed in arriving at his decision. While the trial judge may not have given the internet document the amount of weight that the plaintiff felt should be given to this document, I find that the trial judge did consider this evidence, and it was solely within the purview of the trial judge’s discretion to determine the appropriate amount of weight to give to this document. As such, I find that the trial judge did not commit any error in principle in the way he dealt with this piece of evidence at trial.

16In his appeal, the appellant also argues that the defendant knew or ought to have known about Koi herpes virus, and should have sold suitable goods. In support of his argument the appellant cites s. 15 of the Sales of Goods Act and the case of Shelanu Inc. v. Print Three Franchising Corp. (2003) 2003 52151 (ON CA), 64 O.R. (3d) 533 at 551 and 552 (Ont. C.A.). I do not accept that this case has any relevance to the case at hand. The court, in Shelanu, dealt with a franchisor/franchisee situation, and accordingly, did not deal with matters considered under the Sales of Goods Act.

17The appellant submits that the learned trial judge failed to consider and apply s. 15 of the Sales of Goods Act. Section 15 of the Sales of Goods Act reads as follows:

15. Implied conditions as to quality or fitness – Subject to this Act and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

(i) Where the buyer, expressly or by implication, make known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skills or judgment, and the goods are of a description that it is in the course of the seller’s business to supply (whether the seller is the manufacturer or not), there is an implied condition that the goods will be reasonably fit for such purpose, but in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose.

(ii) Where goods are bought by description from a seller who deals in goods of that description (whether the seller is the manufacturer or not), there is an implied condition that the goods will be of merchantable quality, but if the buyer has examined the goods, there is no implied condition as regards defects that such examination ought to have revealed.

(iii) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.

18The appellant also submits that the defendant expressly guaranteed the fish that he purchased as to being of the best quality. The appellant relies on a clause in the defendant’s advertising brochure, where the following appears:

LIVESTOCK GUARANTEE

We are proud to offer what we believe to be the finest selection and quality of tropical fish at the best possible prices. However, should the need arise, the understated guarantee applies, provided that the purchaser has exercised proper aquarium management. The tropical fish as listed and purchased are guaranteed for five full days (including the day purchased). Fish failing to survive five full days will be replaced at half the purchase price, providing the fish are returned with the guarantee and the cash register receipt.

Note: This guarantee does not apply to feeder fish and marine fish.

19The entire basis of the appellant’s case is the assumption that the Koi fish all died as a result of contracting Koi Herpes from one or more of the four Koi fish that the appellant bought from the defendant’s store.

20The substance of the appellant’s argument relies to a large extent on the fact that the defendant knew or ought to have known that the information contained in an Internet document contributed to the death of his fish. At the trial, when Deputy Judge McCabe asked the appellant’s counsel how he knew that the defendant “ought to know” the information contained in the submitted internet document, the plaintiff’s counsel offered no explanation other than his opinion that the defendant, as an “expert”, should know of such things. There was no supporting evidence, either by way of case law or by way of documentary or expert evidence.

21The plaintiff was also unable to demonstrate why the defendant’s knowledge of Koi herpes virus would be relevant to the case at bar – for the very reason that the plaintiff was unable to offer specific and clear evidence that his Koi died by reason of this particular virus. The plaintiff acquired his suspicions by reason of internet research. Given his lack of expertise in such matters, he was not in a position to offer a diagnosis as to the cause of the demise of his Koi. Nor did he offer the court a basis by which to judge the reliability of the report taken off the Internet. The dead Koi itself would have served as the evidentiary basis by which to adjudge whether they had been infected with a virus unique to Koi. Yet the plaintiff had failed to submit the dead Koi to any tests. Nor did he afford the defendant an opportunity to examine the dead Koi for signs of disease that “he ought” to have known of. Accordingly, Deputy Judge McCabe had no evidence – no tests, no post-mortem photographs, no letters of opinion by way of qualified witnesses etc., by which to establish how the Koi might have died. Instead, the plaintiff offered a general report, taken from the Internet, that may or may not be applicable to the case that he was attempting to establish.

22In his Reasons for Judgment, Deputy Judge McCabe noted that, though he too had suspicions that the Koi might have been affected with Koi herpes virus, those suspicions were nothing more than “guesswork”, based on nothing more than a general internet report on the subject, as well as a coincidence in timing. However, since the plaintiff had failed to offer any reliable evidence that his fish had contacted a virus unique to Koi, Judge McCabe correctly noted that he had no evidence to back up what amounted to nothing more than suspicions. As such, there was no basis on which the deputy judge could consider the applicability of the Sales of Goods Act.

23The appellant also argues that the principle of res ipsa loquitur applies, and the “facts speak for themselves.” I do not agree with this proposition and Deputy Judge McCabe rightfully did not believe such to be the case. Although the deputy judge had certain suspicions, mostly inherent in the timing of the deaths, he also had to put his mind to other evidence which raised other possible explanations for the demise of the fish in question. The facts, therefore, could not “speak for themselves.” Furthermore, the plaintiff, by his own admission, lost track of the four Thai Koi on the very day that he purchased them. Clearly, it is appropriate for the trial judge to consider evidence adduced at trial which points to alternative explanations for the demise of the other fish. The trial judge in considering all the evidence, such as the effects of possible overcrowding of the pond, found that this was not a case of res ipsa loquitur. At trial, the evidence disclosed that there was an intermediate timeframe of three weeks between the time that the Thai Koi were purchased and when the other fish began to die. Thus, for three weeks, the defendant had no control over the care and upkeep of the plaintiff’s fish. Further, the plaintiff’s fish first began to die at a time when he was on a vacation away from his premises. At the end of the trial, there were still a lot of unanswered questions which posed some difficulties for the trial judge to make a finding that the “facts speak for themselves. For example, who was feeding the fish while the plaintiff was away on his vacation? Was the pond properly maintained in the interim? Clearly, the facts did not “speak for themselves.” Accordingly, I find that the learned deputy judge did not commit any errors in law in not applying the principle of res ipsa loquitur to the facts of this case.

24Finally, the appellant submits that the deputy judge misdirected himself with respect to the application of the balance of probability test. The appellant argues that Deputy Judge McCabe “confused ‘suspicion’ with reasonable doubt being the test in a criminal trial.” I disagree with this submission. I am of the view that the appellant has fundamentally misconstrued Deputy Judge McCabe’s reasons. I do not find anywhere in Deputy Judge McCabe’s reasons that he raised the standard of proof in this case, either implicitly or explicitly to that of a reasonable doubt standard as the burden which must be met by the plaintiff. Deputy Judge McCabe noted in his reasons:

I have some suspicions that something, you know, is amiss, but I cannot satisfactorily conclude up here that on the balance of probabilities it was anything that the defendant did. It might be other things. And as soon as I have that question in my mind about what else it might have been, it shows that the case has not been proved on a balance of probabilities.

• Transcript, October 13, 2004, pp. 48-49

25At the trial, a supervisor of livestock testified as a witness for the defendant. In his evidence, the defendant’s witness raised other possible causes that may have been responsible for the death of the Koi. For example, the witness testified that along with shortage of oxygen, death could have been caused by many other problems as well. At the trial, the defendant’s counsel further suggested that the plaintiff may not have followed suggested protocols in regards to crowding, which might have had an effect on the oxygen available to the Koi in the pond. When questioned by the defendant’s counsel, the plaintiff admitted he was aware of the suggestion that one should allow 74 square feet for every three Koi. The defendant’s counsel reasoned that would amount to a suggested number of nine or ten Koi for a pond of 200 square feet, whereas the plaintiff had 48 fish in the pond, 23 of them Koi, at the time when he added the four more Koi to the population. The witness for the defendant also indicated that upon noticing red streaks on the goldfish that was brought into the store by the plaintiff, he concluded that there might have been a mild bacterial infection (not a virus) which might have been caused by a number of factors acting in concert, for example the time of year, temperature, water stress, and low oxygen caused by overcrowding. In recognition of the plaintiff’s failure to adequately maintain the quality of the water, the defendant sold the plaintiff a water conditioner. In his evidence the witness for the defendant, offered a plausible explanation as to why only Koi would die under such circumstances. They are larger than goldfish, and would therefore have different oxygen needs, as they would have a different metabolism. In short, the Koi could possibly succumb earlier to a lack of oxygen caused by a number of convergent factors during this timeframe. I am, therefore, satisfied that the defendant had raised other plausible explanations that Deputy Judge McCabe felt compelled to consider on a balance of probabilities. On the one hand, he was weighing adducible facts such as the overcrowding of the pond, exacerbated by the recent introduction of four more Koi, as well as the learned opinion of the defendant’s witness against the post-factum suspicions of the plaintiff, based on an article from the internet that may or may not have been applicable to his situation. Nevertheless, the onus was on the plaintiff to prove on a balance of probabilities that his explanation should prevail. Yet the appellant, by his own admission, had lost track of the four Thai Koi on the very day that he had deposited them in the pond and has not seen them since. The deputy judge rightfully noted in his reasons:

The difficulty that you have is satisfying the court that it was the virus, the one that we have talked about throughout this hearing, the one that the article is about, that was infecting those four fish and that the infection then spread to the rest of the fish in your pond and thereby resulted in their death.

If you were able to prove that, then you have gone a long way in your case. But therein lies the problem. I cannot work on suspicion…I have to work on evidence.

• Transcript, October 13, 2004, p. 48

26Without the evidence of the four fish that were purchased from the defendant’s store, and without the additional evidence of any tests conducted on the 23 dead Koi, Deputy Judge McCabe simply had no evidentiary basis by which he could connect the information offered in the internet article to the plaintiff’s specific situation. As further noted by the judge:

I have to have something fairly clear that points in the direction or points the responsibility to the defendant in the case, so that I have a clear understanding of the connection between your loss and anything that the defendant may have done or may not have done. And I do not have that in this case.

• Transcript, October 13, 2004, p. 48

27In all the circumstances, I find that Deputy Judge McCabe considered all the evidence on a balance of probabilities. His reasoning was legally correct, and accordingly, deference should be given to his findings of fact. Accordingly, the appeal is dismissed.

28I will entertain written submissions with respect to the issue of costs.

Tulloch J.