CITATION: The Bench Press Ltd. v. Lomco Landscaping, 2018 ONSC 5876
DIVISIONAL COURT FILE NO.: CV-17-132834
DATE: 20181003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
The Bench Press Ltd.
Plaintiff/Respondent
– and –
Lomco Landscaping
Defendant/Appellant
COUNSEL:
Anne Posno, for the Plaintiff/Respondent
Leo Klug, for the Defendant/Appellant
HEARD at Newmarket: October 3, 2018
REASONS FOR DECISION
MULLINS J.:
[1] The defendant appeals from judgment that it pay the sum of $10,000 to the plaintiff, given on May 4, 2017 in the Small Claims Court. The amount is not appealed, just the liability to pay.
[2] The claim was based on allegations that the defendant had damaged recycling bins placed at bus shelters throughout York Region. The plaintiff is the supplier of the bins. Under contract with the region, the defendant removes snow and applies salt at the concrete pads upon which the bus shelters and recycling bins rest. The defendant’s forces make use of mechanical equipment and hand tools such as shovels to carry out their work. There are other snow removal contractors engaged by York Region to remove snow from sidewalks and roadways adjacent to the bus shelters and recycle bins who use heavy equipment.
[3] The trial judge was not entirely satisfied on the evidence that it could be determined, with certainty what or who caused the damage. He found, nonetheless, that the plaintiff had met the burden of proof. He made that finding he said, having regard to his impression of the plaintiff’s evidence as being generally more detailed and precise than that of the defendant’s witnesses. The plaintiff’s explanation for the damage was likely the most cogent and reasonable, the trial judge said when compared with other causes as canvassed in the defendant’s evidence.
[4] The defendant appeals, on grounds there was no evidence to support the judgment. A new trial is sought.
[5] The parties agree that there must be a palpable and overriding error for an appellate court to overturn a decision as to findings of fact. The sufficiency of reasons are reviewed as to correctness. Findings of fact are, of course, to be accorded deference by the appellate court. Small claims proceedings are summary in nature, as befitting the need to have expeditious access to justice and this is to be kept in mind.
[6] The plaintiff/respondent contends that there are no overriding errors as there are no findings of fact unsupported by evidence.
Disposition
[7] It is clear from the reasons given, that the trial judge relied upon the evidence given by Mr. Gray, on behalf of the plaintiff, to conclude that the plaintiff had met the standard of proof notwithstanding his general dissatisfaction with the adequacy of the evidence. As is also clear from his reasons, what the trial judge did, effectively, was to simply co-opt deductions that had been made by the witness.
[8] It is perfectly acceptable for the trier of fact to draw reasonable inferences from circumstantial evidence. This trial judge did not do that. He misdirected himself by making a comparison of explanations offered by the parties for the events complained of rather than himself weighing the evidence as to the actual events and drawing such reasonable inferences from the evidence as he determined were warranted. Had he done the latter, he may well not have gone beyond his first impression that the evidence was insufficient. This is a palpable and overriding error warranting a setting aside of the judgment and an order for a new trial.
[9] The respondent shall pay to the appellant costs of this appeal in the amount of $3,400.
Justice A.M. Mullins
Released: October 3, 2018
CITATION: The Bench Press Ltd. v. Lomco Landscaping, 2018 ONSC 5876
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
The Bench Press Ltd.
Plaintiff/Respondent
– and –
Lomco Landscaping
Defendant/Appellant
REASONS FOR DECISION
Released: October 3, 2018