ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Denise Rochelle Guerette aka Denise Rowe Guerette
Clark Peddle, for the Respondent
Plaintiff (Respondent)
- and -
Burkholder Auto Network Ltd.
Lisa Thompson, for the Appellant
Defendant (Appellant)
Appeal from the Decision of Deputy Judge Sloniowski
Heard at Welland, Ontario: September 11, 2018
The Honourable Justice T. Maddalena
DECISION ON APPEAL
1This is an appeal from the decision of Small Claims Court Deputy Judge Sloniowski, dated December 8, 2017. The trial judge granted judgment to the respondent in the amount of $3,117.38, plus costs in the amount of $900.00 plus HST and inclusive of all disbursements.
2For reasons that follow, the appeal is dismissed with costs payable by the appellant to the respondent as further noted herein.
The Standard of Review
3The standard of review is undisputed and is set out by the Supreme Court in the case of Housen v. Nikolaisen, 2002 SCC 33.
4In Housen the Supreme Court of Canada stated that the standard of review on pure questions of law is one of correctness.
5The Court further stated that the standard of review for findings of fact is such that there can be no reversal of the findings of the trial judge unless the trial judge has made a “palpable and overriding error. A palpable error is one that is plainly seen”.
6Thirdly, where there is a question of mixed law and fact at issue, deference should be provided to the trial judge in the absence of a legal or palpable and overriding error.
7Therefore, appellant review should only be limited to those instances where a manifest error has been made. The Court also noted that it is not the role of the appellate courts to “second-guess the weight to be assigned to the various items of evidence made by the trial judge”.
Analysis
8It is clear that the trial judge preferred the evidence of Mr. Degrave, who was the expert for the respondent, over the expert evidence of the appellant.
9At paragraph 25 of the trial judge’s reasons, he stated:
I accept Mr. Degrave’s evidence in all respects. He gave his evidence in a straightforward manner, knew what he was talking about and felt the job was not done right and would cost the Plaintiff money to repair.
10Similarly, the trial judge stated in paragraph 27 with respect to the expert evidence of the appellant as follows:
The Defendant’s mechanic gave evidence as did Jamie Atkins as to what was done and why and that the work was done in a good and workmanlike manner. The witness, Jamie Atkins is known to the Defendant and he was not, in my opinion, going to give evidence that would hurt the Defendant’s case. I find that the Defendant’s evidence was self-serving and contrary to that of the Plaintiff’s expert witness.
11Having made those findings, it is not for an appeal court to set aside the views of the trial judge absent some palpable and overriding error.
12The trial judge found as credible and believed the evidence of Mr. Degrave when Mr. Degrave stated that it was his opinion that the timing belt was “incorrectly installed which caused a bent valve and that’s why the engine needed to be replaced”.
13The trial judge further accepted as credible the evidence of the respondent when he found that the timing belt was, in fact, replaced on May 30, 2014 as opposed to sometime later as deposed by the appellant.
14The factual conclusions in the judgment were derived from credibility findings made by the trial judge. There is no palpable or overriding error or some misapprehension of the facts in these findings.
15It is clear the trial judge preferred the evidence presented on behalf of the respondent as opposed to that of the appellant. That cannot, and does not, presume any palpable or overriding error.
16As the Court noted in Housen at para. 20, quoting Goodman Estate v. Geffen, 1991 69 (SCC), [1991] 2 S.C.R. 353:
It is by now well established that findings of fact made at trial based on the credibility of witnesses are not to be reversed on appeal unless it is established that the trial judge made some palpable and overriding error which affected his assessment of the facts. … Even where a finding of fact is not contingent upon credibility, this Court has maintained a non-interventionist approach to the review of trial court findings. …
And even in those cases where a finding of fact is neither inextricably linked to the credibility of the testifying witness nor based on a misapprehension of the evidence, the rule remains that appellate review should be limited to those instances where a manifest error has been made. …
17In conclusion, I find no misapprehension of the law or facts or any palpable or overriding error that warrants appellate interference with the decision of the trial judge.
Costs
18At the conclusion of the hearing, I requested that the parties make submissions on costs as if each had been successful. The appellant claimed costs on a partial indemnity basis fixed at $4,681.00.
19The respondent claimed costs on a partial indemnity basis fixed at $2,100.00
20I am mindful of the size of the claim at issue, plus all of those factors as set out in Rule 58.06 of the Rules of Civil Procedure.
21Costs are awarded to the respondent, payable by the appellant, fixed at $1,800.00, payable within 30 days.
Maddalena J.
Released: September 12, 2018
CITATION: Guerette v. Burkholder Auto Network Ltd., 2018 ONSC 5333
COURT FILE NO.: DC 1/18
DATE: 2018/09/12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Denise Rochelle Guerette aka Denise Rowe Guerette
Plaintiff (Respondent)
- and –
Burkholder Auto Network Ltd.
Defendant (Appellant)
DECISION ON APPEAL
Maddalena J.
Released: September 12, 2018