Jones Feed Mills v. Raivio, 2017 ONSC 2118

CITATION: Jones Feed Mills v. Raivio, 2017 ONSC 2118

DIVISIONAL COURT FILE NO.: DC-2103/14

DATE: 20170405

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

H. Rady, D. L. Corbett, J. Fregeau JJ.

BETWEEN:

Jones Feed Mills Ltd. Plaintiff/Respondent

– and –

Maxwell Raivio Defendant/Appellant

COUNSEL:

James D. Bromiley and Wayne F. McCormick, for the plaintiff/respondent

Donald R. Good, for the defendant/appellant

HEARD AND DECIDED: April 3, 2017

ORAL REASONS FOR JUDGMENT

D. L. CORBETT J (ORALLY):

[1] Maxwell Raivio appeals the trial decision of D.A. Broad, J., dated July 21, 2014 delivered after an interesting and hard fought trial over five days in June of 2014.

[2] In his judgment, Justice Broad allowed the claim of Jones Feed Mills Ltd., for $26,097.08 for unpaid invoices for rabbit feed it sold to Mr. Raivio.

[3] Justice Broad also dismissed Mr. Raivio’s counterclaim for defective feed but fixed damages of the counterclaim at $13,950 in the alternative, a useful practice since it facilitates a final decision on appeal and reduces the risk that a new trial might be ordered.

[4] Mr. Raivio is a large commercial rabbit farmer. He has been raising rabbits since he was a boy and has been a rabbit farmer since the 1980s. At Labour Day 2005, Mr. Raivio’s rabbits started dying in great numbers. Mr. Raivio initially suspected sabotage but found no evidence to support that suspicion. He then suspected contaminated feed from his supplier, Jones Feed. He still believes it was the feed that killed his rabbits and that is what the trial before Justice Broad was all about.

[5] Justice Broad set out the narrative facts in 29 lettered sub-paragraphs at para. 5 of his decision. Justice Broad describes these facts as “not largely in dispute” and no substantial challenge was made to them on this appeal.

[6] Justice Broad then set out the three questions he was required to answer at para. 6 of his decision:

1. were the high levels of mortality in Mr. Raivio’s rabbit herd for the period commencing September 5, 2005 and ending in November, 2005 caused by the feed supplied by Jones Feed;
2. did Jones Feed breach its contract with Mr. Raivio by supplying contaminated feed or was it negligent in doing so; and
3. what damages, if any, did Mr. Raivio suffer as a result of any breach of contract or negligence on the part of Jones Feed.

[7] Justice Broad found:

1. that Mr. Raivio did not prove on a balance of probabilities that the high levels of illness and mortality in the rabbitry were caused by feed supplied by Jones Feed (para. 28 of the Reasons);
2. no standard of care was pleaded or proved and thus the claim of negligence must be dismissed (para. 32);
3. the contract between Jones Feed and Raivio did not contain any express term respecting quality or an acceptable maximum level of mycotoxins in the feed (para. 33);
4. if there was an implied term of merchantability that the feed would be suitable for rabbits to eat, as argued by Mr. Raivio, in light of the court’s finding on causation, it was not proved that the implied warranty was breached (para. 37); and
5. Mr. Raivio’s damages were $13,950 (para. 63).

[8] At the start of trial, Mr. Raivio’s lawyer, in his opening, said this:

In terms of causation, which will probably be the significant factor that you have to decide, the two experts will be the key (Transcript, June 11, 2014, page 10).

[9] Jones Feeds’ counsel echoed this view in his opening. He said:

The single issue for the court’s determination in dealing with liability is whether, on a balance of probabilities, there is sufficient medical evidence to directly link Mr. Raivio’s rabbit losses to the Jones Feed (Transcript, June 11, 2014, page 20).

[10] The issue for trial was causation and this was a battle of expert witnesses. Justice Broad preferred the evidence of Dr. Smith, Jones Feeds’ expert and concluded that Mr. Raivio did not prove causation. Mr. Raivio challenges that finding on appeal.

[11] The conflict between the experts was as follows: Mr. Raivio’s expert, Dr. Boermans, proceeded on the basis that there were elevated mycotoxin levels in the feed; a rate of 1.97 parts per million. This is a measurement of DON, a particular mycotoxin of potentially hundreds of mycotoxins, that is viewed as a “marker” for general presence of mycotoxins. Dr. Boermans linked this elevated mycotoxin level with several other factors; the inconclusive autopsy results, the absence of other reasonable explanations, and the apparent correlation between heightened DON levels and illness and mortality rates in the rabbitry. Dr. Boermans described rabbits as “sensitive” to mycotoxins and defended this view on the basis of trade reports in Europe and Russia, and general industry experience.

[12] Dr. Smith, for the defendant did not opine on Dr. Boermans’ overall analysis. He opined that:

a. DON rates of 1.97 parts per million are not necessarily impactful for rabbits; and b. that clinical evidence suggests that rabbits are not particularly “sensitive” to mycotoxins.

Thus, Dr. Smith rejected the proposition that one test reading of 1.97 parts per million established a mycotoxin rate sufficient to ground a conclusion that the feed caused the problem.

[13] The disagreement between Drs. Boermans and Smith had a heightened edge because it centered on one study conducted by a graduate student, Ms. Hewitt. Both Drs. Boermans and Smith were on Ms. Hewitt’s faculty supervisory committee. Both were aware of Ms. Hewitt’s three experiments and the overall results of her study. Ms. Hewitt’s work was nearing completion at the time that Dr. Boermans prepared his report in this case. No reference was made to it in Dr. Boermans’ report, nor did he issue a supplemental report to address Ms. Hewitt’s findings.

[14] There are not a lot of toxicology reports focused on rabbits, let alone studies that look at the very kind of general toxins at issue in a rabbit population in this case. The Hewitt study was such a study. Justice Broad placed considerable weight on this omission from Dr. Boermans’ report, and Dr. Boermans’ failure to give an adequate explanation for his failure to address such a cogent piece of research.

[15] Mr. Raivio raises the following grounds of appeal in respect to the causation issue:

1. Justice Broad erred in accepting Dr. Smith as an expert in animal toxicology as his resume and experience was primarily in animal nutrition; that his knowledge was limited to toxins and feed;
2. Justice Broad erred in admitting the evidence of Dr. Smith;
3. Justice Broad erred in failing to give sufficient weight to the comprehensive mortality records and toxin tests recorded by the appellant;
4. Justice Broad erred in his interpretation of the evidence put forward by Dr. Boermans by failing to provide sufficient weight to the evidence of Dr. Boermans, which was based on a broader range of toxicological effects and evidence in farm management practices; and
5. Justice Broad erred in placing excess weight on the Hewitt study and how much reliance Dr. Smith placed on this evidence to support his own evidence.

[16] I will consider each of these arguments in turn. First, however, I wish to set out the basic framework of this decision and the governing principles that must guide us on this appeal.

A. Jurisdiction

[17] This appeal comes to us pursuant to s. 19(1) and (1.2) of the Courts of Justice Act. This jurisdiction is determined by the damages awarded or fixed by the trial judge, not the amount claimed. See Harte-Eichmanis v. Fernandes, 2012 ONCA 266 at para. 14. This appeal was started in the Court of Appeal but transferred to this court by consent order of Gillese, J.A. on December 4, 2014.

B. Standard of review

[18] The standard of review from the final decision of a judge in the Ontario Superior Court is correctness on questions of law and palpable and overriding error on questions of fact.

Trial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence. In making a factual inference, the trial judge must sift through the relevant facts, decide on their weight, and draw a factual conclusion. Thus, where evidence exists, which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence. We reiterate that it is not for the role of appellate courts to second guess the weight to be assigned to the various items of evidence. If there is no overriding error with respect to the underlying facts that the trial judge relied on to draw the inference, then it is only where the inference drawing process itself is palpably in error that an appellate court can interfere with factual conclusions. Housen v. Nikolaisen, [2002] SCC 33 at paras. 22-23.

[19] Where some evidence exists to support the inference of the trial judge, an appellate court “will be hard pressed to find a palpable and overriding error”. Housen v. Nikolaisen, para. 22. An appellate court “must, in order to reverse the decision, not merely entertain doubts whether the decision below is right, but be convinced it is wrong”. See Stein et al. v. ‘Kathy K’ et al. (The Ship), 1975 146 (SCC), [1976] 2 S.C.R. 802, para. 7.

[20] Where the only point at issue is the interpretation of the evidence as a whole, it is wrong for an appellate court to set aside a trial judgment. See Goodman Estate v. Geffen 1991 69 (SCC), 1991 2 SCR 353, at para. 69. In H.L. v. Canada, Justice Fish stressed that an appellate court may not re-weigh evidence to arrive at a finding of fact that it believes is more reasonable than a fact reasonably found by a trial judge. See H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 SCR 401 at para. 74.

[21] The decision to accept or reject expert evidence is part of the fact- finding process and is reviewable on the deferential standard of palpable and overriding error: See Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, 1994 106 (SCC), [1994] 1 SCR 114 at 116.

[22] Where the standard of review is palpable and overriding error, the factual findings of the trial judge are entitled to deference: See Carreau v. Turpie, 2006 CarswellOnt 6531. Generally, an appellate court should be reluctant to interfere with the exercise of the trial judge’s discretion unless the trial judge has exercised his discretion arbitrarily, capriciously, or the decision was based upon a wrong or inapplicable principle of law: Kostopoulos v. Jesshope, 1985 2047 (ON CA), 1985 48 CPC 209 at para. 47. The role of the appellate court is not to provide an opportunity to re-argue the case: 1201059 Ontario Inc. v. Pizza Pizza Limited, 2015 ONSC 1208 at para. 5.

C. Argument #1: Justice Broad erred in accepting Dr. Smith as an expert in animal toxicology as his resume and experience is primarily in animal nutrition with his knowledge limited to toxins in feed.

[23] This issue is listed in para. 21 of Mr. Raivio’s factum prepared by his former counsel. It was not developed in the factum or pursued during oral argument. For the sake of completeness, we note that Justice Broad did not, in fact, qualify Dr. Smith as an expert in animal toxicology. He qualified him in the area of animal nutrition with a specialty in the effects of feed contaminated with mycotoxin on animals: para. 14 of the decision. This ground of appeal does not succeed.

D. Argument #2: Justice Broad erred in admitting the evidence of Dr. Smith.

[24] This argument was raised in the factum but not pursued in oral argument. The basis of this argument is that Dr. Smith was not impartial because of his active involvement in the Hewitt study on which he placed such heavy emphasis. Dr. Smith’s impartiality was not challenged before Justice Broad and cannot be raised as a new issue on appeal. Second, the premise of the argument is wrong; it would have the effect of excluding from the status of expert those most closely engaged in research on the matters in issue in a case. An expert’s preferences for his own work may be a fertile area of cross-examination but not a general basis for exclusion. This ground of appeal fails.

E. Argument #3: Justice Broad erred in failing to give sufficient weight to the comprehensive mortality records and toxin tests recorded by the appellant.

[25] Weighing the evidence is a core task of the trial judge. Here, Justice Broad’s consideration of the mortality records reflected the weight placed on those records by the two expert witnesses. That was a reasonable framework within which to view this evidence. We cannot interfere.

F. Argument #4: Justice Broad erred in his interpretation of the evidence put forward by Dr. Herman Boermans by failing to provide sufficient weight to the evidence of Dr. Boermans, which is based on a broader range of toxicological effects and evidence in farm management practices.

[26] I understand Mr. Raivio’s frustration on this point. The sensitivity or otherwise of rabbits to mycotoxins was only a part of Dr. Boermans’ analysis. A trial judge is entitled to accept some, none, or all of a witness’s evidence. Here, Justice Broad was not willing to place weight on Dr. Boermans’ opinion, in large measure because of the way Dr. Boermans treated an important piece of scientific research, directly relevant to the case, and within Dr. Boermans’ knowledge. When the court loses confidence in an expert witness, it is not just the one point on which the expert was tripped up that is weakened. Justice Broad was entitled to prefer the opinion of Dr. Smith over the opinion of Dr. Boermans, and he provided a solid basis for doing so. There is no justification for us to intervene.

G. Argument #5: Justice Broad erred in placing excess weight on the Hewitt study and how much reliance Dr. Smith placed on this evidence to support his own evidence.

[27] There are at least two ways to justify Justice Broad’s heavy reliance on the Hewitt study. The first is that it undermined an important prong of Dr. Boermans’ analysis, the sensitivity of rabbits, while simultaneously undermining the confidence the court was prepared to invest in Dr. Boermans’ overall analysis and opinion. The second is that the Hewitt study undermined the significance to be placed on the reading of 1.97 ppm, which was by far, the most important objective fact supporting Dr. Boermans’ analysis. The autopsy results carried out in ideal circumstances were equivocal. Without being able to connect 1.97 ppm to dead rabbits, Justice Broad was entitled to conclude that causation was not proved. Justice Broad was entitled to weigh the evidence as he did. He was immersed in the evidence in a way that no appellate court can replicate and an appeal is not an opportunity to run the trial over again.

[28] The issues raised by Mr. Raivio are in respect to factual findings which were available on the evidence. The appeal as to liability is dismissed.

[29] As a result, we need not decide the issues raised concerning the assessment of damages.

[30] The appeal itself is dismissed.

[31] We understand Mr. Raivio’s conviction that the feed killed his rabbits. We understand that he sincerely believes that it did. Justice Broad found that he was unable to prove this allegation and we cannot interfere with that finding.

“Justice D. L. Corbett” D. L. Corbett J.

I agree: “Justice H. A. Rady” Rady J.

I agree: “Justice J. Fregeau” Fregeau J.

Date of Oral Reasons for Judgment: April 3, 2017 Date of Release: April 5, 2017

CITATION: Jones Feed Mills v. Raivio, 2017 ONSC 2118

DIVISIONAL COURT FILE NO.: DC-2103/14

DATE: 20170405

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

H. Rady, D. L. Corbett, J. Fregeau JJ.

BETWEEN:

Jones Feed Mills Ltd. Plaintiff/Respondent

– and –

Maxwell Raivio Defendant/Appellant

ORAL REASONS FOR JUDGMENT

D. L. Corbett J.

Date of Oral Reasons for Judgment: April 3, 2017 Date of Release: April 5, 2017