Court File and Parties

CITATION: Repic v. Hamilton (City), 2011 ONCA 443

DATE: 20110609

DOCKET: C51340

COURT OF APPEAL FOR ONTARIO

Laskin, Goudge and Gillese JJ.A.

BETWEEN

Daniel Repic, Michael Repic, Madonna Whalen, and Natalie Repic

Respondents (Plaintiffs)

and

The City of Hamilton and Wayne Powell

Appellant (Defendants)

Counsel: C. Kirk Boggs, for the appellant (defendant) City of Hamilton Neil Jones and Ian Brisbin for the plaintiffs (respondents)

Heard & released orally: June 2, 2011

On appeal from the judgment of Justice L.M. Walters of the Superior Court of Justice dated November 5, 2009.

Endorsement

[1] There are two issues on this appeal: the standard of care and causation.

[2] On the issue of the standard of care we are satisfied that the trial judge stated and applied the correct test. The trial judge’s findings of fact that the City fell below the standard of care were reasonably supported by the evidence.

[3] On the issue of causation, we agree with Mr. Jones’ analysis of paragraphs 155-165 of the trial judge’s reasons. The trial judge’s wording, especially at paragraph 163, admittedly might be improved. However, having expressly acknowledged that the “but for” test was the applicable test and having set out this test, we are satisfied that the trial judge applied it.

[4] As Justice Sopinka said in Snell v. Farrell, [1900] 2 S.C.R. 311: “causation is essentially a practical question of fact which can best be answered by ordinary common sense.” The language that the trial judge used in making her findings on causation show that she indeed applied the “but for” test. Her findings are supported by the record. Moreover, her findings reflect the common sense proposition that but for the City’s breach of the standard of care, this accident would not have happened.

[5] Accordingly, the appeal is dismissed. The respondents are entitled to their costs in the agreed amount of $22,500 all inclusive.

“John Laskin J.A.”

“S.T. Goudge J.A.”

“E.E. Gillese J.A.”