COURT OF APPEAL FOR ONTARIO

CITATION: Cowan v. Hydro One Networks Inc., 2014 ONCA 6

DATE: 20140107

DOCKET: C54676

Doherty, Sharpe and MacFarland JJ.A.

BETWEEN

Ronald Cowan, Helen Cowan and Shannon Cowan

Plaintiffs (Appellants)

and

Hydro One Networks Inc.

Defendant (Respondent)

Peter J. Cronyn, John P. Lundrigan, Ashley Deathe, Leanne Storms, for the appellants

Reeva Finkel and Ivan Y. Lavrence, for the respondent, Hydro One

Heard and released orally: December 20, 2013

On appeal from the judgment of Justice Robbie D. Gordon of the Superior Court of Justice, dated October 31, 2011.

ENDORSEMENT

[1] The trial judge concluded on the law, that the appellants’ could not meet the “but for” test for causation and that, in the circumstances, he would apply the “material contribution test”. In view of the Supreme Court of Canada’s decision in Clements (which decision was not available to the trial judge when he rendered his decision), this was an error and the material contribution test does not apply here. However, we are of the view that the material contribution test is a more lenient test and if the trial judge applied it, he still found the appellants did not meet that test and failed to prove their case on a balance of probabilities. In spite of what the trial judge said about his application of that test, a fair reading of his reasons would suggest that his very thorough analysis looks very much like the application of the “but for” test. He concluded that while a number of factors could have caused the problems experienced by the appellants. The only one proved on a balance of probabilities was inadequate labour.

[2] The trial judge found that tingle voltage was present in the barn regularly in amounts exceeding 1.0 v and on occasion between 2.0 v and 3.0 v. No appeal is taken from this finding. Based on the evidence before him however, he concluded at para. 325 of his reasons and I quote:

On the whole I am not satisfied on a balance of probabilities that tingle voltage was a contributing factor to the production issues experienced on the Cowan farm. That it would have had a negative effect on production is belied by 1) the positive production levels for the farm in 95/96; 2) the acceptable somatic cell counts recorded for most of the time the farm operated; and 3) the lack of health issues on the farm that ought to have been apparent had tingle voltage been causing significant stress to the cows.

[3] The appellants take issue with this finding and that is the heart of this appeal. In essence, the appellants argue that the trial judge ought to have accepted the evidence of their experts and concluded in fact, that tingle voltage present in the barn caused the damages of which they complain, which is essentially the loss of their dairy farm. We do not agree.

[4] While the trial judge accepted the evidence of the appellants’ experts that tingle voltage can cause the type of harm which the appellants allege caused their loss, the reduced milk production, it did not on the facts before him do so in this case.

[5] The trial judge considered the whole of the evidence and importantly found that if tingle voltage had been the cause of the reduced milk production from 1997 forward, there would have been overt signs on the herd. He concluded that the evidence did not demonstrate such signs and accordingly the appellants had not established that the herd was being affected by tingle voltage. In his view, milk production had been relatively good in 1995 and 1996 and declined thereafter and there was no change in the hydro system that could account for the changes after 1997.

[6] The evidence of the appellants’ experts was contrary to the evidence of the expert called by Hydro. The preponderance of scientific evidence suggested that the tingle voltage at the levels found at the appellants’ farm would not cause the problems experience with this herd.

[7] While the appellant’s experts testified to the contrary, this was a matter for the trial judge and he preferred the evidence of the respondent for the reasons he gave. We would not interfere with this finding.

[8] The trial judge gave very lengthy reasons when he carefully and thoughtfully considered and weighed the evidence before him. The factual findings are entitled to deference in this court and absent palpable and overriding error we would not interfere.

[9] We see no error in his conclusion that causation has not been proved.

[10] While the trial judge did find that the respondent had breached the standard of care in failing to adequately warn dairy farmers of the possible harm tingle voltage could have on cattle, in our view, his finding in this regard was unnecessary and of no consequence. Without causation, the question of standard of care does not arise.

[11] The appeal in relation to the assessment of damages was not pursued. For these reasons the appeal is dismissed and in view of this result, the cross-appeal is also dismissed.

[12] Costs to the respondent fixed in the sum of $45,000 inclusive of disbursements and all applicable taxes.

“Doherty J.A.”

“Robert J. Sharpe J.A.”

“J. MacFarland J.A.”