COURT OF APPEAL FOR ONTARIO
CITATION: Deonarain v. Rambarran, 2009 ONCA 201
DATE: 20090305
DOCKET: C45854
Before: Goudge, MacFarland and Epstein JJ.A.
BETWEEN:
Jason Deonarain, Rany Deonarain and Juliet Deonarain
Plaintiffs (Appellants)
and
Shammis Shah, Naseema Shah, Gulam Shah, Yusuf Teli, Mohsina Teli, Abdullah Teli, Christopher Rambarran, Bebi Salima Rambarran, Lakhan Rambarran, Neil Ramnarine, Vishno Ramnarine, Leon Kondiah, Michael Kondiah, and Neeshad Osman
Defendants (Respondents)
Counsel:
Richard E. Anka, for the appellants Deonarain
Nadine Nasr, for the respondent Neeshad Osman
David A. Weisman, for the respondent Leon Kondiah
R. Sam Ramlall, Nicholas Derzko and Mohamed Kamaluddin, for the respondent Neil Ramnarine
Hugh M. MacKenzie, for the respondent Christopher Rambarran
Mark Adilman, for the respondents Bebi and Lakhan Rambarran
Heard: February 9, 2009
On appeal from the judgment of Justice John R. Jennings of the Superior Court dated March 14, 2005.
By the Court:
[1] At trial, the appellants succeeded in obtaining a judgment for damages against two respondents, C.R. and Y.T., for inflicting a serious assault on the appellant J.D. They also obtained judgment against the respondent N.R. for a small portion of those damages.
[2] The appellants raise a number of grounds of appeal.
[3] Counsel for the appellants focussed his primary attack on the trial judge’s dismissal of the action against the respondent N.O. because the appellants did not establish that N.O. provided the directions to J.D.’s house to the respondents that permitted them to inflict the assault. Counsel argued that the trial judge erred, because he should have rejected the evidence that N.O. did not provide any directions, but rather should have accepted the evidence leading to the opposite conclusion.
[4] This argument cannot succeed. This court is not permitted to retry the case in this way, as counsel would have us do. It should be well understood that we are limited to determining if the trial judge’s findings of fact exhibit palpable and overriding error, a high standard for the appellants to meet. Trial judges are simply in the best position to determine which evidence to accept and which to reject.
[5] In this case, there was ample evidence to support the finding that N.O. was not shown to have given the directions alleged by the appellants. N.O. denied giving those directions, and it was clearly open to the trial judge to accept this evidence, whatever he may have thought of other parts of her testimony. The phone records showed that the only occasions on which the directions could have been given were in two phone calls made not to N.O.’s phone, but to the home of N.R., and there was no evidence that N.O. was at N.R.’s house at the time. The trial judge declined to accept the evidence that would lead to the conclusion that N.O. did give the directions. Counsel’s view that this was the better evidence and should have been preferred is an argument to be made at trial, not an argument which can succeed in this court, because we are not empowered to retry the case. This ground of appeal fails.
[6] Linked to this issue was counsel’s argument that he should have been permitted, after reasons for judgment were issued, to reopen the case to call N.R. However, N.R. was available to be called at trial. Moreover, counsel’s material in support of his motion before the trial judge acknowledged that N.R.’s evidence would not show that N.O. was part of the two critical calls, but only that N.R. was not. The trial judge dismissed the motion, finding that the proposed evidence would not change his conclusion that the appellants had not shown N.O. to have given the directions. In light of counsel’s acknowledgement, this conclusion is unanswerable. This ground of appeal also fails.
[7] Counsel’s third main argument on the appeal was that the trial judge erred in dismissing the action against L.K., who drove the assailants to the neighbourhood where J.D. lived, and later drove them home. Again counsel is faced with findings of fact that cannot be overcome. There was ample evidence that L.K. knew nothing about any plan to assault J.D. when he dropped the assailants off, nor, when he drove them home, that there had been a serious assault, and that he found out about it only several days later. Counsel’s argument is that despite this evidence, it is inconceivable that L.K. did not know, because of the close confines of the car. That is, the trial judge should have disbelieved the evidence that L.K. knew nothing. Once again, this court is not empowered to act on such an argument, as indeed counsel appeared to acknowledge. This ground of appeal also fails.
[8] Counsel also made brief submissions about the aggravated damages and Family Law Act damages that were awarded. He asserts little more than that the amounts were too low. That is not enough to succeed on appeal. The trial judge exercised his discretion and made an assessment, as he was required to. There is no basis for this court to interfere.
[9] It was also argued that punitive damages should have been awarded, and that deterrence required more than what has been meted out by the criminal justice system. The trial judge did not agree, and dismissed this claim. Once again, that was a decision for him. Counsel’s view that he ought not to have found that deterrence had been inadequately addressed is not a basis upon which this court can interfere.
[10] Counsel also made brief submissions that a new trial should have been directed because of several remarks made in chambers by the trial judge that were said to reflect bias and to have informed the outcome of the trial. We disagree on both counts. A reasonable, fully informed person would not conclude that the trial judge had closed his mind to the appellants’ case. Nor did counsel apparently think so at the time since he took no steps to have the trial judge removed. Nor is there any basis whatsoever to find that these remarks (if they were ever made) inform the outcome of the trial. This argument fails.
[11] Counsel did not pursue several other issues raised in the appellants’ factum and we need not address them here. Indeed, we did not call on the respondents to address any of the appellants’ arguments save those related to costs of the trial.
[12] The trial judge awarded costs to the appellants on a partial indemnity basis rather than the substantial indemnity basis claim. He was entirely within his discretion in doing so, and we would not interfere.
[13] The appellants also appeal the trial judge’s refusal to make a Bullock or Sanderson order with respect to the costs of the successful defendants. Counsel takes issue with the trial judge’s view that on the information available prior to trial it was not reasonable to continue the action against N.O. or L.K.
[14] This was a conclusion that the trial judge could easily and properly reach. The appellants had major evidentiary hurdles to overcome with both defendants – hurdles that were well understood before the trial. Moreover, as the trial judge said, the order sought would likely mean that these successful defendants would never collect their costs against the respondents who committed the assault. It is not unfair for the appellants to pay their costs, since the appellants forced them to incur those costs and did not succeed against them.
[15] We recognize that the end result will likely leave the appellants unable to recover their judgment or their costs but require them to pay costs to the successful defendants despite the serious assault of J.D. However that possibility was clearly foreseeable from very early on in this lawsuit and yet it was proceeded with.
[16] The appeal must be dismissed, costs of the appeal to the respondents fixed on a partial indemnity basis inclusive of disbursements and GST in the following amounts:
(a) to the respondent N.O. $10,000.00
(b) to the respondent L.K. $8,000.00
(c) to the respondent N.R. $3,000.00
(d) to the respondents B.R. and L.R. $1,800.00
(e) to the respondent C.R. $1,500.00
RELEASED: March 5, 2009 “STG”
“S.T. Goudge J.A.”
“J. MacFarland J.A.”
“G. Epstein J.A.”