DATE: 20030609

DOCKET: C36815

COURT OF APPEAL FOR ONTARIO

RE:

EMMA LANDETA AND CARLOS LANDETA (Plaintiffs (Emma Landeta, Respondent)) – and – THE TORONTO AREA TRANSIT OPERATING AUTHORTIY ALSO KNOWN AS GO TRANSIT (Defendant (Appellant))

BEFORE:

CARTHY, CHARRON AND SHARPE JJ.A.

COUNSEL:

Kenneth R. Peel

for the appellant

Jeffrey W. Strype

for the respondent

HEARD:

May 26, 2003

On appeal from the judgment of Justice B. Trafford of the Superior Court of Justice dated July 5, 2001.

E N D O R S E M E N T

[1] We are satisfied that the appellant has shown no error in the reasons of the trial judge which would justify our intervention.

[2] The core finding was that the plaintiff suffered an injury to her shoulder which causes incessant pain and that she has succumbed as a result to a state of depression that makes surgical intervention inadvisable. Further, even if the depression abates the surgery will only alleviate pain but will not give her the ability to lift above shoulder height. The trial judge considered and rejected the contention that the plaintiff’s injuries were the subject of a previous incident. These findings were supported in the evidence and the attack upon them was premised on arguments that other evidence would indicate the contrary. That other evidence may have been more credible in the eyes of some but was clearly not to this trial judge.

[3] Objection was taken to evidence, some of it from experts, presented at the last minute and contrary to the rules. There was no request for an adjournment and the trial judge found that the defendant was not prejudiced by its late production. We are concerned that the trial judge repeatedly ruled when objections were made that he would hear the evidence and make rulings as to admissibility later – then never made such rulings except as one might infer from reading the reasons for judgment. That is an unsatisfactory procedure, especially for review on appeal, but we cannot conclude that any one or more of the instances of admission, assuming everything was admitted and considered relevant, would justify a new trial or seriously impacted on the outcome.

[4] The appellant argues that insufficient consideration was given to mitigation and contingencies in the assessment of damages for future care and wage loss. We do not agree. The trial judge allowed almost 20% reduction of actuary calculations and given the plaintiff’s age at trial of 57 this can’t be far off the mark. There was evidence to support the finding that the plaintiff’s injuries were such that she could not seek alternative employment.

[5] The costs were awarded favouring the plaintiff for a Rule 49 offer before trial. The appellant says this takes no account of the conduct of the plaintiff’s counsel in putting forward last minute evidence and prolonging the trial. The respondent says this late introduction was in response to a witness list from the appellant suggesting a fresh line of evidence. The trial judge had all this before him and the discretion was his, not ours, to reach his conclusion on costs.

[6] We therefore dismiss the appeal with costs. We have considered the bill of costs and submissions submitted by the parties and fix the costs at $7,500.

“J. J. Carthy J.A.”

_ “Louise Charron J.A.”

_ “Robert J. Sharpe J.A.”