COURT FILE NO.: 315/05

DATE: 20070417

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

GREER, E. MACDONALD AND SWINTON JJ.

B E T W E E N:

ADRIAN ELLIOTT a minor by his litigation guardian LAURA FERGUSON

Plaintiff (Appellant)

• and -

DENNIS ROUSSEAU and THE CORPORATION OF THE CITY OF MISSISSAUGA

Defendants (Respondents)

Sidney Silverman, for the Plaintiff (Appellant)

David Boghosian, for the Defendants (Respondents)

HEARD at Toronto: April 17, 2007

GREER J.: (Orally)

1This appeal arises from an incident in which a Mississauga transit bus came into contact with the plaintiff, Adrian Elliott. The driver of the bus was the defendant, Dennis Rousseau. At the end of a three day trial, Wright J. delivered oral reasons on July 14, 2005, dismissing the plaintiff’s claim and the plaintiff appeals from that decision.

2We find the standard of review to be that as set out in the factum of the respondent and that is, that on this appeal the question is whether there is a palpable and overriding error made by the Judge.

3Appellate Courts are not to review findings of fact, either primary or inferred by asking whether, on the totality of the record, those findings are reasonable. Rather, such findings may be overturned if the trial judge made a palpable and overriding error. See Housen v. Nikolaisen, [2002] 2 S.C.R. 245 at 248-250 and 254-256.

4In addition, as set out in the respondent’s factum in paragraph 38:

“An appellate court’s review of a Trial Judge’s assessment of damages can only occur where an appellate court comes to the conclusion that there was no evidence upon which a Trial Judge could have reached the conclusion or whether he proceeded upon a mistaken or wrong principle, or where the result reached at the trial was wholly erroneous”.

See Woelk v. Halverson (1980), 1980 17 (SCC), 114 D.L.R. (3d) 385 at pp. 388-389.

5We find no error in the fact that there was no specific reference in the Judge’s reasons to subsection 193(1) of the Highway Traffic Act. The trial Judge did not commit an overriding or palpable error by not referencing the legal burden of proof as he was aware of it as it was raised in the opening submissions of counsel or the defence. In any event, the trial Judge was able to conclude on the basis on the record before him that the bus driver was not negligent, and as such had no need to reference the legal burden of proof set out in that subsection.

6The question of onus need not be considered if, at the end of the case, the trial Judge can come to a clear conclusion one way or the other. See Winnipeg Electric Co. v. Geel, 1932 318 (UK JCPC), [1932] 4 D.L.R. 51 (P.C.) at pp. 55-56.

7It was open to the trial Judge to find, on the evidence of the accident reconstruction expert, Mr. Robert Seaton, that the cause of the accident was the plaintiff running or walking into the rear of the side of the bus. There was ample evidence to support the trial Judge’s findings that the bus driver had no means by which this accident could have been prevented.

8With respect to the issue of damages, we can see no error on the part of the trial Judge whose task it was to quantify damages in the alternative. The trial Judge’s decision with respect to the amount of damages was within a reasonable range as shown by the cases cited in paragraph 52 of the respondent’s factum.

9The appeal is therefore dismissed. We are in agreement that costs should be fixed at $3,500, payable only by the plaintiff, Adrian Elliott.

GREER J.

E. MACDONALD J.

SWINTON J.

Date of Reasons for Judgment: April 17, 2007

Date of Release: May 3, 2007

COURT FILE NO.: 315/05

DATE: 20070417

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT