CITATION: Stoiantsis v. Spirou, 2010 ONCA 360
DATE: 20100518
DOCKET: C48374
COURT OF APPEAL FOR ONTARIO
Weiler, Goudge and Simmons JJ.A.
BETWEEN
Christos Evangelos Stoiantsis, Valerie Stoiantsis, Geralynn Petropoulos, Thomas Stoiantsis, Victoria Stoiantsis Bond and Leslie Stoiantis
Plaintiffs (Respondents)
and
Christos Spirou and Rajendra Chetty
Defendants (Appellants)
Kirk F. Stevens, for the appellants
Alan L. Rachlin, for the respondents
Heard: April 6, 2010
On appeal from the order of Justice Renee Pomerance of the Superior Court of Justice dated January 22, 2008.
By the Court:
[1] This is an appeal from the trial of two factual issues that the parties agreed to try separately, in the hope that the balance of the trial could then proceed more efficiently or might not be needed at all.
[2] They asked the trial judge to decide the following questions:
a) Whether the appellant Dr. Spirou recommended that the respondent Christos Stoiantsis take the drug Coumadin; and
b) Whether Dr. Spirou’s note of September 18, 1998 accurately recorded the nature of the meeting he had with Mr. Stoiantsis on that date.
[3] After hearing the evidence, the trial judge decided both issues against the appellants. She found that Dr. Spirou did not recommend Coumadin to Mr. Stoiantsis, and that his note was not an accurate record of the meeting of September 18, 1998.
[4] The appellants challenge both conclusions, arguing that they are tainted by palpable and overriding error. They make two main arguments, and say as a consequence that both findings of fact must be set aside and a new trial of the issues ordered. They also appeal the order awarding costs to the respondents.
[5] The appellants’ primary challenge is to the trial judge’s treatment of the expert forensic evidence called to address the September 18, 1998 note. That note was glued onto a page in Dr. Spirou’s medical record for Mr. Stoiantsis. When it was glued was important in determining its accuracy.
[6] Both sides called expert forensic evidence about whether the note itself had suffered water damage when the page on which it was glued suffered water damage. The opinion of the appellants’ expert was that it had suffered water damage. The respondents’ expert opined that it had not, and had therefore been placed in the file after the water damage occurred.
[7] The appellants argue that the trial judge failed to resolve the conflict between the experts, and misunderstood the findings of the respondents’ expert that led him to his opinion.
[8] We do not agree. The trial judge clearly resolved the conflict. She expressly preferred the opinion of the respondents’ expert to that of the appellants and, as the appellants acknowledge, she properly understood the opinion she accepted, namely that the note of the September 18 meeting must have been placed in the file after the water damage occurred.
[9] Nor is there any basis to conclude that the trial judge misunderstood that expert’s findings that led him to his opinion. The trial judge correctly referred to those various findings, including the general absence of water damage to the typed notation, the bleeding in the handwriting on the backing page and the fact that the bleeding and non-bleeding text did not line up with the placement of the current note.
[10] The treatment of the expert forensic evidence does not reflect any error in fact finding, let alone one that is palpable and overriding. This argument fails.
[11] Secondly, the appellants argue that the failure of the trial judge to deal with the evidence of Dr. Rizik and Dr. Ziter in reaching her conclusions constitutes palpable and overriding error. The appellants say that their evidence is so important on both the factual questions before the trial judge that it just had to be addressed.
[12] Again, we disagree. Dr. Rizik treated Mr. Stoiantsis in November and December 1998. His evidence and his medical records allow the conclusion that prior to that date, Mr. Stoiantsis had been advised to take Coumadin. It was not contested that the drug had been prescribed for him by an emergency room doctor in February 1998, and that he had taken it until a neighbour told him it was used in rat poison. However, Dr. Rizik’s evidence and his records say nothing about whether Dr. Spirou ever advised Mr. Stoiantsis to take the drug. His evidence is no more than equivocal on that issue. There was thus no need for the trial judge to refer to it in answering the two questions before her.
[13] Dr. Ziter’s evidence, particularly his medical record note of December 2, 1998, was that Dr. Spirou’s office record indicated that Mr. Stoiantsis did not want to take Coumadin because someone had told him it was rat poison. This too stops well short of clear evidence that Dr. Spirou had recommended the drug to him or that Dr. Spirou’s medical records of the meeting of September 18, 1998 said as much. Nor does it yield that inference. The trial judge did not commit palpable and overriding error in answering the questions of fact before her, without referring to it.
[14] Finally, the appellants challenge the award of costs to the respondents, saying that costs should await the outcome of the full trial and should not be awarded issue by issue.
[15] In our view, the trial judge was entirely within her discretion to award costs to the successful party for the trial of these two issues. She was correct that the trial resulted in a final disposition of both issues. Equally important as a justification for her order is that the procedure was undertaken by agreement of the parties. In the normal course, the expectation would be that costs would follow the event. It was open to either party to condition their consent on costs being deferred to the completion of the full trial. No one did that. In the circumstances, the costs award was a proper exercise of discretion, and we would not interfere with it.
[16] The appeal is dismissed. Costs to the respondents fixed at $15,000 inclusive of disbursements and G.S.T.
RELEASED: May 18 2010 (“S.T.G.”)
“K. M. Weiler J.A.”
“S. T. Goudge J.A.”
“J. M. Simmons J.A.”