ONTARIO
DIVISIONAL COURT, SUPERIOR COURT OF JUSTICE
MUHAMMAD NAVEED SHARIF
APPELLANT
v.
PHD GROUP
RESPONDENT
BEFORE: Bloom, J.
COUNSEL: Maurice Vaturi, for the Appellant
Phd Group, a corporation represented by its agent, J. Gurgul
HEARD: March 11, 2016
E N D O R S E M E N T
I INTRODUCTION
1The matter before me is an appeal from the decision of Deputy Judge J. A. Birchall of the Small Claims Court dated April 1, 2015.
2The trial judge dismissed the Appellant’s claim for damages. The Appellant had alleged that the Respondent had improperly installed a propane system in the Appellant’s taxi, causing an overheating and seizing of the engine.
3The Appellant argues that the finding of fact by the trial judge that he was unable to conclude that the Respondent was responsible for the engine failure was in error. The Appellant also moves for the admission of fresh evidence on the issue of the cause of the engine failure.
II FACTS
4The Respondent installed a propane system in the Appellant’s taxi in June of 2013. At that point the odometer reading was approximately 245,000 kilometres. Three days later the propane system was operating properly.
5Five months later the engine began to overheat. In December of 2013 and January of 2014 the Appellant had parts replaced by a mechanic, other than one working for the Respondent, in an effort to correct the problem.
6On March 26, 2014 when the odometer reading was approximately 340,000 kilometres, the Appellant brought the vehicle back to the Respondent.
7Ultimately the engine overheated and seized; it was replaced by a mechanic other than one employed by the Respondent.
8The Appellant called at trial evidence from an experienced installer of propane systems, Jacob Levin, who testified as to the procedures for installing such systems; he also testified that overheating and engine failure would result from failure to follow those procedures. The Appellant also called evidence from a mechanic, Munir Zahid, who was unable to identify what caused the overheating and seizure of the engine. It was clear that the Respondent had not followed the procedures commended by Mr. Levin, although its representative in testimony disputed, in substance, their applicability in the circumstances.
9The trial judge found that “[without] expert testimony directly linking the seized engine to the actions or inactions of” the Respondent he was unable to conclude that the Respondent was responsible for the overheating and seizure of the engine.
10On this appeal the Appellant moves to tender fresh evidence. It is expert evidence which addresses the overheating of the engine and its seizure, but not the causation of either.
III APPLICABLE LEGAL PRINCIPLES
11In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 the majority of the Supreme Court of Canada held that an appellate court is not to overturn a finding of fact, including an inference from other facts, absent palpable and overriding error. Such an error was defined as one which is plainly seen.
IV APPLICATION OF LEGAL PRINCIPLES IN CASE AT BAR
12The trial judge was entitled to come to the finding of fact that he did on the evidence before him that a causal link was not proven between the Respondent’s conduct and the overheating and seizure of the engine. He made no palpable and overriding error.
13The Appellant argued that the trial judge should have drawn an adverse inference from the failure of the Respondent to call as witnesses those who had actually worked on the Appellant’s vehicle. That decision was, however, part of the fact finding process, and no palpable or overriding error has been demonstrated in the facts as found by the trial judge.
14As to the motion to adduce fresh evidence, I find that it must fail, because the evidence could have been adduced at trial by the exercise of due diligence; and because, even if believed, it could not reasonably, when taken with the other evidence at trial, have affected the result. The fresh evidence, even if believed, did not advance the Appellant’s case on causation; it simply confirmed other evidence relating to the overheating and seizure of the engine. The fresh evidence cannot fill the evidentiary gap in the Appellant’s case. It does not link the Respondent’s conduct to the destruction of the engine, the point on which the Appellant’s case foundered.
15I, therefore, dismiss the appeal at bar.
V COSTS
16If the parties are unable to agree on costs, I will receive written costs submissions of no more than 3 pages, excluding a bill of costs. The Respondent is to serve and file its submissions within two weeks from the release of these reasons. The Appellant is to serve and file his submissions within two weeks from service of the Respondent’s submissions.
Bloom, J.
DATE: March 15, 2016
CITATION: Sharif v. PHD Group, 2016 ONSC 1840
COURT FILE NO.: DC-15-00000048-0000
DATE: 2016 03 15
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE – ONTARIO
RE:
MUHAMMAD NAVEED SHARIF
v.
PHD GROUP
BEFORE: Bloom, J.
COUNSEL: Maurice Vaturi, for the Appellant
Phd Group, a corporation
represented by its agent, J.
Gurgul
ENDORSEMENT
Bloom, J.
DATE: March 15. 2016