CITATION: Dhaliwal v. Coseco, 2014 ONSC 6679
COURT FILE NO.: DC-13-074-00
DATE: 2014-11-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HARDEEP KAUR DHALIWAL
Virender Sharma, for the Plaintiff
Plaintiff
- and -
COSECO INSURANCE COMPANY
Bruce Keay, for the Defendant
Defendant
HEARD: February 28, 2014
ENDORSEMENT
Barnes, J.
[1] This is an appeal of the decision of Deputy Judge N. Da Silva rendered on June 11, 2013, after a trial.
[2] The Appellant claimed $16,000 for the loss of her vehicle and $25,000 in general and punitive damages. The Respondent counterclaimed for a return of accident benefits paid to the Appellant and for the cost of investigating the accident and the Appellant.
[3] The basis for the Respondent’s counterclaim is that the car accident was staged and the Appellant made false statements or misrepresentations in support of the claim.
[4] The trial judge dismissed the Appellant’s claim. The trial judge concluded that the accident was staged and that the Appellant had made false statements in support of her claims.
[5] The trial judge also found that the Respondent had proved that accident benefits were paid out to the Appellant, that costs were incurred to investigate the Appellant’s claim, and that the amounts of benefits paid and costs incurred had been proved by the Respondent.
[6] The trial judge awarded judgment in favour of the Respondent in the amount of $25,000 in damages, $3,750 in costs and $175 in court costs.
BACKGROUND FACTS
[7] The Appellant reported that she was involved in a collision with another vehicle on September 7, 2009, at Humberline Drive near Huddensfield Road. The report indicated that the accident occurred shortly before midnight. The accident was investigated by the police that night.
[8] The Appellant is insured by the Respondent and she accordingly filed an insurance claim relating to the reported accident.
ISSUES
[9] The issues raised on this appeal are the following:
(a) Did the trial judge misapprehend the evidence or fail to appreciate relevant evidence?
(b) Should the trial judge’s judgment be set aside and judgment be awarded in favour of the Appellant, or should a new trial be ordered?
[10] I have concluded that the Appellant’s appeal is dismissed and the judgment rendered at trial remains unchanged.
POSITION OF THE PARTIES
[11] The Appellant raised several instances where she submits that the trial judge misapprehended the evidence.
[12] The Appellant submits that the trial judge disregarded the evidence and therefore failed to reach these conclusions:
(a) the Appellant had provided reliable and credible evidence that the value of the vehicle was $16,000;
(b) the Respondent had influenced independent witness, tainted and concealed material facts, conspired with witnesses, and tampered with evidence; and
(c) the trial judge failed to conclude that there was a conspiracy between the police officer, the Respondent’s counsel, and the expert witnesses.
[13] The Appellant submitted that the standard of review of the trial judge’s decision is correctness. She submits that trial judge failed to draw the correct inferences from the evidence.
[14] The Respondent submits that there was ample evidence called at trial from which the trial judge could conclude that the accident was staged, the value of the vehicle was falsified, and that the accident benefits and investigative costs were incured and paid out.
[15] The Respondent argued that the standard of review on the appeal is reasonableness. and the trial judge’s conclusions drawn from the evidence were reasonable and should not be interferred with.
THE STANDARD OF REVIEW
[16] The instances of alleged error identified by the Appellant indicates that this appeal is a challenge to findings of fact made by the trial judge.
[17] The Appellant submits that the standard for reviewing the decision of the trial judge is correctness.
[18] The Respondent submits that the correct standard of review is reasonableness. He explained the standard of review of an appellate court for fact finding is reasonableness. This standard accords more deference to the trial judge. The Respondent relied on the Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9 at para. 51 and 53.
[19] Dunsmuir involves a judicial review of a tribunal decision. The present case is an appeal from the decision of a judge following a trial.
[20] The standard of appellate review is summarised by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review for questions of fact is reasonableness; “they are not to be reversed unless it can be established that the learned trial judge made some palpable and overriding error which affected his assessment of the facts,” Stein v. The Ship “Kathy K”, 1975 146 (SCC), [1975] S.C.J. No. 104, at para. 7.
[21] The Appellant is challenging the trial judge’s findings of fact, therefore, this appellate court may only substitiute its own findings if a “palpable and overriding error” is found.
[22] Palpable and overriding error means, “clearly wrong”, “unreasonable” and “not reasonably supported by the evidence”: HL v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110.
[23] Examples of palpable and overriding errors include factual findings made in the complete absence of evidence, factual findings made in conflict with accepted evidence, findings based on the misapprehension of evidence, and facts drawn from primary facts that are speculation rather than inference: see Waxman v. Waxman, (2004) 2004 39040 (ON CA), O.J. No. 1765, 132 A.C.W.S. (3d) 1046, at paras. 296-97, 300 (C.A.).
[24] An overriding error is one that one that “goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254, [1996] S.C.J. No. 15, at 28, this applies to all factual findings whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inference from primary facts. This court cannot retry any aspect of this case”: See Waxman at paras. 296-97.
[25] This appeal is not a retrial. The trial judge gave detailed reasons in support of his conclusions. His conclusions can be summarized in these broad categories:
(a) the credibility of the Appellant was questionable. He rejected the Appellant’s evidence on the value of her damaged vehicle, her explanation of how the accident occurred, and her report that the accident did in fact occur.
(b) the accident was a staged accident;
(c) there was no evidence of tampering of evidence by the Respondent;
(d) there was no evidence of harassment or conspiracy between the police officer, the insurance company (Respondent), the expert witness and the insurance company’s (Respondent) lawyer;
(e) credibility of the Appellant’s overall case was in question;
(f) the accident benefits were paid out to the Appellant. The quantum had been proved; and
(g) the investigation costs had been incurred and the quantum had been proved. Damages in excess of $66,000 had been proved.
[26] The standard of proof at trial is on a balance of probabilities. The trial judge’s conclusions are supported by the evidence and his reasons are thorough, explicit and clear; see the decision of Deputy Judge Da Silva rendered on June 11, 2013.
[27] There is no basis to conclude that the trial judge made a palpaple and over-riding error. There is no basis to interfere with his factual findings.
[28] For all the reasons articulated, the Appellant’s appeal is dismissed and the order made at trial is confirmed.
[29] Should the parties be unable to agree on costs, the parties shall each submit a bill of costs no later than 15 days from the date of this judgment. The bill of costs shall be no more than two pages in length.
Barnes, J.
Released: November 18, 2014
CITATION: Dhaliwal v. Coseco, 2014 ONSC 6679
COURT FILE NO.: DC-13-074-00
DATE: 2014-11-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HARDEEP KAUR DHALIWAL
Plaintiff
- and –
COSECO INSURANCE COMPANY
Defendant
ENDORSEMENT
Barnes, J.
Released: November 18, 2014