COURT OF APPEAL FOR ONTARIO
CITATION: Salisbury v. Litman, 2015 ONCA 357
DATE: 20150515
DOCKET: C58023
Weiler, Cronk and Pepall JJ.A.
BETWEEN
Glynis Salisbury by her Litigation Guardian, Donna Salisbury
Plaintiff (Appellant)
and
Orin Litman
Defendant (Respondent)
Jane Poproski, for the appellant
Hugh M. Mackenzie and Kirryn G. Hashmi, for the respondent
Heard and released orally: May 13, 2015
On appeal from the judgment of Justice James C. Kent of the Superior Court of Justice, dated November 6, 2013.
ENDORSEMENT
[1] The appellant was seriously injured in a motor scooter accident in Mexico in January 1997 as a result of which she suffered serious brain injuries. She had to have an operation that removed a significant portion of her right temporal lobe.
[2] In April, 2000, the appellant served the respondent with a statement of claim in which she pleaded that she and her then boyfriend:
…each were driving their own rented motor scooter on a road on their way to a day of snorkelling when suddenly and without warning the Defendant who had been travelling behind the Plaintiff caused his scooter to collide with the Plaintiff’s scooter causing the Plaintiff to lose control of her scooter and as a result, was thrown off her scooter and landed on the ground.
[3] At the trial held in 2013, 16 years after the date of the accident, the appellant provided a different account of events. She testified that the respondent caused the accident when a strap connected to a bag on the back of his scooter caught her handlebar as he passed her and caused her to lose control of her scooter resulting in her injuries.
[4] At trail, a major issue was the reliability of the appellant’s memory. The trial judge found that the appellant was an honest witness but he dismissed the action on the basis that he was not satisfied she had proven that the respondent caused or contributed to the accident.
[5] On appeal the appellant makes three main submissions:
The trial judge erred in failing to exclude the evidence of the defence expert Dr. Duncan and, as a result, erred in his assessment of the reliability of the appellant’s evidence.
The trial judge failed to recognize that the defendant failed to meet his onus of proof with respect to his claim that the appellant suffered from retrograde amnesia.
The trial judge failed to apply the appropriate standard of proof in a civil case and, in that respect, ignored or failed to appreciate aspects of the evidence.
[6] Dealing with the first submission, we do not accept that the trial judge erred in relying on the evidence of Dr. Duncan regarding the appellant’s brain injuries and the consequences of those injuries. Dr. Duncan testified that loss of a portion of the right temporal lobe of the brain implicates memory function and there would be substantial retrograde amnesia with an injury of this nature. The fact that he did not provide an opinion on the validity of recovered memories did not detract from his expertise on the nature and consequences of the appellant’s brain injuries. The trial judge did not err in relying on Dr. Duncan’s evidence.
[7] Nor did the trial judge err in considering all the evidence bearing on the reliability of the appellant’s version of events. Indeed, the trial judge was obliged to consider the whole of the evidence on this issue.
[8] Overall, we see no error in the trial judge’s assessment of the reliability of the appellant’s evidence. We note that the trial judge’s misdescription of the type of assessment conducted by one of the appellant’s experts is of no moment. The trial judge accurately described the substance of the witness’s evidence and the nature of her opinion.
[9] Turning now to the second issue, contrary to the assertion of counsel for the appellant that the respondent was obliged to lead evidence as to how the accident happened, it was the appellant’s onus throughout to establish causation and the reliability of her account of events. At the end of the day, the trial judge concluded that the appellant had not met this onus because she failed to establish that the respondent either caused or contributed to the accident. Moreover, the trial judge expressly applied a balance of probability standard in determining whether the appellant’s account was “more probable than not”. The trial judge’s use of the word “doubt’ must be read in that context. Read as a whole, his reasons reflect no error in the application of the correct standard of proof.
[10] Third, the trial judge’s factual findings on the issue of causation, i.e. on the presence of bags at the time of the incident and on the question of whether the respondent passed the appellant on his scooter at the critical time, are findings of fact that were open to him on the evidentiary record. His assessment of the evidence and the weight to be attached to it are entitled to deference. We see no palpable and overriding error in his findings.
[11] Accordingly, the appeal is dismissed. Costs of the appeal fixed in the amount of $7,500 inclusive of disbursements and all applicable taxes are payable to the respondent.
“K.M. Weiler J.A.”
“E.A. Cronk J.A.”
“S.E. Pepall J.A.”