Channan v. Hamilton (City), 2008 CanLII 8779 (ON SCDC)

COURT FILE NO.: DC-07-387

DATE: 20080307

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KRISHAN KUMAR CHANNAN

• and –

CITY OF HAMILTON

BEFORE: HARRIS J.

COUNSEL: Mr. K. Channan, self represented.

B. MacNeil, counsel on behalf of the Defendant

HEARD: February 25, & 29, 2008

E N D O R S E M E N T

1There is a functional distinction between a trial and appellate tribunal, namely the trial court’s responsibility is to find facts. Given that the trial judge has had the advantage of seeing and hearing the witnesses and assessing demeanour, the appellate courts traditionally treat all findings of fact made by the trial judge with deference¹.

2The deference on the trial judge’s findings of fact stays unless the appellate court is satisfied that a finding was the result of “a palpable and overriding error”. A palpable error is one that is obvious, plain to see or clear. The Supreme Court of Canada in H.L. v Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 55, reiterates this principle namely, “an appellate court will not interfere with the trial judge’s finding of fact unless it can plainly identify the imputed error and that error is shown to have affected the result”.

3With respect to a question of law, the standard is “correctness”. In H.L. v Canada (Attorney General), supra, the Supreme Court stated that a decision will be incorrect if it is based on an erroneous interpretation of a statute or an erroneous application of a legal principle.

4For questions of mixed fact and law, the same standard applies as to questions of fact; namely “palpable and overriding error” unless the trial judge made an inextricable error in principle with respect to the characterization of a standard or its application, in which case the error may amount to an error in law. See Ontario (Ministry of Labour) v. Modern Niagara Toronto Inc., [2006] O.J. 3684 at para 20, citing to Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

5The trial judge qualified a witness as an expert after hearing his qualifications, submissions and taking into account the exhibits filed with regard to the witness’s expertise. The judge concluded that the incident was the result of an accident, and not because of the design or structure of the bridge or weather conditions. A qualified expert witness is allowed to give opinion evidence and it is open to the judge to accept or reject that opinion. It is within the realm of the judge’s discretion.

6The trial judge was attuned to the claim being both a breach of contract as well as negligence. He reviewed the issue of the rubber mat alternative raised by the plaintiff. He took into account testimonies of the plaintiff, Mr. Gatto, and the expert witness Mr. Palombella.

7The trial judge reviewed the medical evidence, and was alert to the fact that the plaintiff took 24 acupuncture treatments by a medical practitioner; this was evident in his assessment of damages.

8The trial judge noted the respective position of the parties. The trial judge reviewed the issues and their interplay on the evidence. He dealt with the onus on the plaintiff to prove both liability and damages on a balance of probabilities. He also considered the onus on the plaintiff to show, on a balance of probabilities, that the bridge was not reasonably safe for golfers passing over it. He dealt with the issues referable to The Occupiers Liability Act, R.S.O. 1990, c. O.2, including that s. 4 of the Act only applies if the plaintiff assumed the risk. He also dealt with the building code and other legislation in the construction and design of the bridge. He found that on the evidence, including Exhibit #11, that the plaintiff did assume such risk.

9The trial judge properly directed himself to all the evidence bearing on the relevant issues, and made several findings that touched on the material evidence.

10The trial judge determined the standard of care, and found that the plaintiff had not met the standard.

FINDINGS

11The trial judge heard and considered the evidence of Mr. Palombella as to his expertise relevant to the surface of the foot bridge and damp weather, which was the prevailing weather at the time of the accident. He qualified Palombella as an expert who testified on the friction values of the wooden planks used by the defendant, meteorological findings, and implications relevant to the facts in issue.

12The trial judge reviewed and found that the respondent City had followed the necessary building code and other legislation in the construction and design of the foot bridge.

13The trial judge reviewed the onus on the plaintiff to prove, on the balance of probabilities, both liability and damages.

14The trial judge acknowledged that the respondent City would attract liability only if it did not make the bridge reasonably safe for use by golfers.

15The trial judge found that the appellant willingly assumed the risk such that s. 4 of the Occupiers’ Liability Act has application on the facts present.

16The trial judge reviewed that the respondent’s duty was to take such care as is reasonable under all of the circumstances and found that the respondent met the standard of care required of it.

DAMAGES

17The trial judge made the following findings regarding damages:

• The appellant continued to play golf after the accident that morning;
• The appellant had 24 treatments of acupuncture;
• The appellant had obtained complete recovery;
• No medical evidence was tendered by the appellant;
• No medication or hospital visits were indicated in the evidence;
• There was no surgical intervention;
• There was no wage loss;
• There was no evidence of constant pain;
• There was no evidence of curtailment of activities, including golf;
• The appellant was not wholly or partially disabled; and,
• There was no evidence that the appellant could not kneel or use his right knee.

CONCLUSION

18The nature of the question at issue in the appellant’s action fell directly within the jurisdiction of the trial judge: whether or not the City was negligent in its construction of the bridge. This determination is a question of mixed law and fact. and accordingly the trial judge is entitled to deference and this court, acting as an appellate court, should not intervene unless the trial judge has made a palpable and overriding error.

19The trial judge did not make a palpable and overriding error. The trial judge applied the law correctly and his findings will be upheld.

20Accordingly the appeal is dismissed.

COSTS

21There will be costs of the motion and costs of the appeal. If the parties are unable to reach an accord on the costs they may provide me with their costs memoranda within 30 days. Each memorandum should be one page for the motion and one page (Letterhead) on the appeal.

Footnotes

1. 1R. Gibbens, “Appellate Review, Findings of Fact” Advocates Quarterly vol.13 (1992) 445.