COURT OF APPEAL FOR ONTARIO
CITATION: Kay v. Caverson, 2013 ONCA 220
DATE: 20130405
DOCKET: C54646
Doherty, Rouleau and Epstein JJ.A.
BETWEEN
Diane Kay
Plaintiff (Appellant/Respondent by way of cross-appeal)
and
Gerard Caverson, Guliana D’Orazio Caverson, also known as Julie Caverson, The Corporation of the City of Mississauga, and M & I Contracting Inc.
Defendants (Respondents/Appellants by way of cross-appeal)
and
Namroud Khachi and Architectural Technology Services
Third Parties
James A. Kay, for the appellant
Brian E. Lucas, for the respondents Gerard Caverson and Guliana D’Orazio Caverson, also known as Julie Caverson
Scott E. Hamilton, for the respondent The Corporation of the City of Mississauga
Julian Binavince, for the respondent M & I Contracting Inc.
No one appearing for the third parties
Heard and released orally: April 3, 2013
On appeal from the judgment of Justice Peter A. Daley of the Superior Court of Justice, dated August 11, 2011, with reasons reported at 2011 ONSC 4528.
ENDORSEMENT
[1] The appellant appeals the dismissal of her claim and the award of costs to the respondents. The Caverson respondents seek leave to cross-appeal on the issue of costs and, if leave is granted, cross-appeal the award of costs.
[2] The claim arose out of an alleged increase in flow and collection of water from the Caversons’ property onto the appellant’s property. This water is said to have caused extensive damage to the appellant’s home.
[3] The appellant raises several grounds of appeal from the judgment dismissing her claims. These can be summarized as follows:
the trial judge erred in his credibility findings;
the trial judge was biased and deprived the appellant of a full and fair hearing;
the trial judge misapprehended the evidence, erred in his analysis of the law and erred in the application of the law to the facts; and
the trial judge erred in his award of costs.
[4] In our view, the appeal should be dismissed. In his reasons, the trial judge carried out a thorough review of the evidence, and his factual findings – including an adverse finding as to the appellant’s credibility – are well supported in the record.
[5] The appellant submits that the trial judge ought not to have rejected the appellant’s evidence. Specifically, she argues that the trial judge erred in his interpretation of the Supreme Court of Canada’s decision in British Columbia (Attorney General) v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657. We would not give effect to this submission. Assuming (without deciding) that the trial judge erred in his application of the principles in Malik, it is clear from his reasons that he would have rejected the appellant’s evidence even without referring to the negative credibility findings made by Murray J. in another action involving the appellant and Julie Caverson. The trial judge’s reasons show that he found the appellant’s testimony to be inaccurate, inconsistent with the documentary evidence and exaggerated.
[6] We also see no merit in the suggestion that the trial judge was biased. The transcript references cited by the appellant by and large show nothing more than the trial judge curtailing the frequent, and largely inappropriate, interruptions of the appellant. We further see nothing wrong with the way the trial judge dealt with the improper letter sent by the appellant to the trial judge during the course of the trial. Nothing in the record before us suggests that the trial judge conducted himself inappropriately or in such a way as to give rise to a reasonable apprehension of bias towards the appellant or her trial lawyer.
[7] We moreover see no merit in the other grounds of appeal. In any event, because the appellant’s case hinged almost exclusively on the appellant’s testimony, once the trial judge rejected her testimony, the claim could not succeed.
[8] As to the appellant’s appeal of the cost award, costs normally follow the result and the trial judge’s determination as to costs and the proper amount of costs is entitled to deference. The appellant has not demonstrated any error in that regard.
[9] Turning to the Caversons’ cross-appeal, they submit that the trial judge erred in failing to award costs on a substantial indemnity scale, either pursuant to the factors set out in rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, or because of the Rule 49 offer to settle made by the Caversons prior to trial. Again, the trial judge’s decision on costs is entitled to deference. The trial judge’s reasons on costs are detailed and show that he considered the positions of the parties and all of the relevant factors and evidence, including the offer to settle. As stated by the trial judge, the decision not to award substantial indemnity costs was a close call. In our view, it was his to make and we see no basis on which to interfere.
[10] For these reasons, the appeal is dismissed and the application for leave to cross-appeal the cost award is dismissed.
[11] With respect to the costs of the appeal, and having regard to the refusal to grant leave to cross-appeal the cost award below, it is our view that an appropriate award of costs to the Caversons is $13,000 inclusive of disbursements and relevant taxes. In respect of the respondent the City of Mississauga, the cost award is in the amount of $9,000 inclusive of disbursements and relevant taxes; in the case of the respondent M & I Contracting Inc., the cost award is in the amount of $8,000 inclusive of disbursements and relevant taxes.
“D. Doherty J.A.”
“Paul Rouleau J.A.”
“Gloria Epstein J.A.”