Court of Appeal for Ontario

Citation: Martin v. Glaze-Bloc Products Inc., 2008 ONCA 377

Date: 2008-05-13

Docket: C46803

Before: Rosenberg, Lang and Epstein JJ.A.

Between:

Thomas Martin, an infant by his Litigation Guardian, Tom Martin, Alaina Martin, and the said Tom Martin Appellants

and

Glaze-Bloc Products Inc., Thomas Gurd Belton, Dean John Browne, John Baldwin Spratt, Charles Howard Spratt Respondents

Counsel: Lawrence Greenspon and Cheryl Letourneau for the appellants Brian C. Elkin and Mary Delli Quadri for the respondents

Heard and released orally: May 8, 2008

On appeal from the judgment of Justice Gerald Morin of the Superior Court of Justice dated February 8, 2007.

ENDORSEMENT

[1] The standard of review is important in this case. Absent legal error, and there were none, this court can only intervene where there is a palpable and overriding error. It is not open to this court to retry the case.

[2] Appellant’s counsel has carefully taken us through the crucial parts of the plaintiff’s case and in particular the theory of causation posited by Dr. Forkert. The trial judge did not accept the plaintiff’s theory of causation. There was a substantial body of expert evidence casting doubt on several of the five steps underlying Dr. Forkert’s theory. It was therefore open to the trial judge to reject the plaintiff’s theory. This was not a case where the exceptional approach set out in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, needed to be applied. Again, there was a substantial body of evidence accepted by the trial judge that showed there is no association between TCE and the severe neural tube defect that occurred in this case. Put another way, this is not a case where the limits of scientific knowledge prevented the plaintiff from establishing causation on the normal but-for standard.

[3] Finally, we see no error in the trial judge’s treatment of the Logman study. It was open to the defendant to demonstrate weaknesses in the study that undermined its validity and more importantly its application to this case. The trial judge was entitled to discount its value based on those weaknesses.

[4] Accordingly, the appeal is dismissed with costs fixed in the amount of $20,000 inclusive of disbursements and G.S.T.

Signed: “M. Rosenberg J.A.” “S.E. Lang J.A.” “G. Epstein J.A.”