COURT OF APPEAL FOR ONTARIO

CITATION: Saumur v. Antoniak, 2016 ONCA 851

DATE: 2016-11-14

DOCKET: C60403

Blair, Epstein and Huscroft JJ.A.

BETWEEN

Dean Saumur, an infant under the age of 18 years by his Litigation Guardian, Janet Saumur, and the said Janet Saumur

Plaintiffs

(Respondents)

and

Luba Antoniak, Lester Antoniak and City of Hamilton

Defendants

(Appellant)

Counsel:

Earl A. Cherniak Q.C. and C. Kirk Boggs, for the appellant

Robert J. Hooper and Mary K Grosso, for the respondents

Heard: November 2, 2016

On appeal from the judgment of Justice J.A. Ramsay of the Superior Court of Justice, dated April 13, 2015.

ENDORSEMENT

[1] The respondent Dean Saumur was badly injured when struck by a car while crossing a busy street in Hamilton on his way to school on May 14, 2002. He was almost 10 years old at the time.

[2] The City of Hamilton had committed itself to staffing the crosswalk where the accident occurred with a crossing guard between 8:20 AM and 8:40 AM on school days. It is not contested that the crossing guard was not on site when Dean crossed the road, and that, if Dean were crossing the road during the time when the crossing guard was to have been on site, the City is liable.

[3] The trial focussed on two issues relevant to this appeal: (i) at what time did the accident occur (i.e., did it occur during the period of time when the crossing guard was to have been present); and (ii) should Dean be found to be contributorily negligent?

[4] After reviewing and weighing the evidence of four witnesses who saw the accident and six witnesses who did not but who gave testimony relevant to the issues (including the crossing guard, whose evidence he did not accept), the trial judge found that Dean had crossed the road during the period of time when the crossing guard should have been present, but was not. He also held that Dean was not contributorily negligent.

[5] In what is almost entirely a factually-based appeal, the City contests these findings. In our view, the trial judge made no palpable and overriding error of fact or of mixed fact and law, nor did he err in law, in finding that the accident occurred within the relevant time period or in failing to hold that Dean was contributorily negligent.

The Timing of the Accident

[6] The witnesses gave conflicting testimony about when the accident took place. Much of it was given in the form of estimates or approximations. It was the trial judge’s task to resolve these conflicts. Whether he could have taken another view of the evidence is not the point. He resolved the conflicts as he saw the evidence and conducted an appropriate analysis, without error, in our view, in doing so. There was ample support in the record for his findings and conclusions.

[7] One need look no further than the evidence of the witness, Marc Schulze as a starting point. Mr. Schulze was driving towards the crosswalk when the accident occurred and saw it happen. He stopped, took the time to park his car in a way that would protect Dean, who was on the road, and then looked at the clock in his car. The clock read 8:38 AM. Mr. Schulze had received training through the fire department to be alert to when accidents occur. This evidence was not challenged on cross-examination and was accepted by the trial judge.

[8] Notwithstanding this, the appellant submits that the trial judge could not rely on the time indicated by Mr. Schulze’s clock or on his evidence without weighing it against the other evidence with respect to timing, which the appellant says establishes that the accident must have occurred after 8:40 AM when the crossing guard was not required to be on site. Had the trial judge conducted a proper analysis of the conflicting testimony, as he was obliged to do, according to the appellant, he would have realized that this was so.

[9] The trial judge did not rely solely on the evidence of Mr. Schulze, however, and he carefully reviewed the evidence of each of the witnesses and conducted an analysis of the conflicting positions with respect to when Dean arrived at the crosswalk, including the time it would have taken for him to walk from his home to the cross walk, the manner in which he was walking – was he hustling or scurrying because he thought he would be late? – and, in particular, the timing of the 911 call which everyone agrees was at 8:42:58 AM.

[10] Tori Pomerleau made the 911 call, upon which the appellant places great emphasis. Tori was 13 years old at the time. She and her younger brothers went outside at about 8:35 AM or 8:40 AM and were standing on their driveway close to their house when she saw Dean passing by the neighbour’s yard. He appeared to be scurrying but not running and looked as if he were in a hurry. She turned to her brothers as he went past and then heard a noise and turned around and saw Dean flying through the air. She then went along her driveway to where he was lying to see if he was okay – she was kind of in shock staring at him and seeing the blood coming out of his nose -- and observed the driver of the car that struck him pull over to the side of the road. A woman got out of her car and yelled at her to call 911. She ran to her house, fumbled with her keys to open the door, and ran through the hallway to the kitchen where the phone was located to make the call. As noted, it was placed at 8:42:58 AM. Tori estimated that all of this took two or three minutes.

[11] The trial judge found that Tori’s evidence did not preclude the accident’s having happened before 8:40 AM, given that her estimate of two or three minutes was approximate, that she was shocked by the accident, that she ran to the boy, looked at him, no doubt watched what Mr. Schulze was doing (he was attending to Dean) for a time, had to be asked to call 911, ran to the house, fumbled with her keys and perhaps had to wait for the 911 operator to pick up the phone. He found that “Tory could easily have taken more than three minutes to get through to 911”.

[12] Fastening on the 8:38 AM reading on the clock in Mr. Schulze’s car, the appellant argues that, if the accuracy of that reading is accepted, it must have taken Tori almost five minutes to do what she said she did. The appellant says it is “inconceivable” this could be the case and therefore the trial judge’s analysis is undermined. We do not accept this argument. The evidence, and common experience relating to the inaccuracies of people’s estimates of time, could well lead to a different conclusion.

[13] In any event, the argument misses the point. The issue is whether it took Tori more than two minutes and 58 seconds to make the call. If it did, the accident occurred prior to 8:40 AM. On Tori’s own estimate of two or three minutes, it was open to the trial judge to find that the accident occurred three minutes before the 911 call, namely at 8:39:58 AM – and this is without leaving any margin for the fact that the crossing guard was obliged to remain on site after 8:40 AM if she saw a child within sight of the crosswalk, something that would add a further period of time for Dean to reach the crosswalk under her watch.

[14] The appellant places some emphasis on the trial judge’s comment that Tori “no doubt watched what Marc Schulze was doing for some brief period of time”, submitting that there was no evidence to that effect. We do not think this observation has much bearing on the overall timing of the events or that it undermines the trial judge’s view of the timing of the 911 call. Nor do we think the trial judge erred in rejecting the evidence of Susan Round who testified that she heard the school’s 8:40 AM bell when Dean was still walking down the sidewalk towards the cross-walk. He was entitled to reject that evidence and, in any event, as noted above, the evidence was that even if Dean had been walking towards the crosswalk and was in sight of the crossing guard, although not yet at the crosswalk, the crossing guard would have been required to have stayed after 8:40 AM to help the child across the road.

[15] In addition, the appellant criticizes the trial judge for not specifically addressing the evidence of the witness, Mr. de Groote, in the course of the analysis portion of his reasons regarding the timing of the accident. The trial judge was clearly alive to that evidence, however, as he had reviewed it earlier in his reasons, and the probative value of his evidence on the timing issue was uncertain in any event. Mr. de Groote testified that when he drove his children to school and passed the intersection the crossing guard was in place and that they arrived at the school just before he heard the 8:40 AM bell. When he returned, the accident had already happened. All of this took up to four minutes, but Mr. de Groote did not say when it was, within that potential four minute span, that the bell rang. A trial judge is not obliged to refer to each and every piece of evidence in the course of his or her reasons, and we see no palpable and overriding error in the absence of a specific reference to Mr. de Groote’s evidence in the analysis portion of the trial judge’s reasons.

[16] The trial judge’s analysis of the timing issue did not stop with the combination of the evidence of Mr. Schulze and Tori Pomerleau. He added to the mix – as he was entitled to do – the evidence relating to the time it would have taken Dean to travel from his house to the crosswalk. He accepted the evidence of Dean’s mother that Dean left home at 8:30 AM. On the basis of the evidence relating to “the various scenarios [regarding] distances, slow, medium and fast average walking speeds and Dean’s time of departure from home”, he concluded that it would have taken Dean 7 minutes from the time of his departure to the time of his arrival at the crosswalk and that it was “very unlikely” that Dean arrived at the crosswalk after 8:40 AM. These findings were open to the trial judge on the record.

[17] In conclusion, while the appellant seeks to put a different gloss on the evidence, there was ample evidence to support the findings made by the trial judge.

[18] Recognizing, no doubt, that the appeal on the timing issue is factually based, Mr. Cherniak argued that the trial judge erred in law in failing to conduct the type of analysis of the evidence that he was mandated to do, thereby leading to the palpable and overriding errors of fact the appellant submits he made. In this respect, he relied on the following passage from Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133 (B.C.C.A.), at para. 10, regarding the test for determining the credibility of interested witnesses:

The test must reasonably subject [the witness’] story to an examination if its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[19] The trial judge did not cite any jurisprudence to that effect in his reasons. Reading those reasons as a whole, however, we are satisfied that he conducted just such an exercise in his review and analysis of the testimony in relation to the issues he addressed. We would not give effect to this argument.

[20] Much time was spent on the appeal re-arguing the submissions that were made to the trial judge and inviting us to re-weigh the evidence led at trial and come to a different conclusion. We cannot do that. While another judge may have come to different conclusions based on the record, it was this trial judge’s call on the evidence and his findings are amply supported by the record. It is not this Court’s role to re-parse what happened on a second by second basis, as the appellant would have us do.

[21] We reject this ground of appeal.

Contributory Negligence

[22] The trial judge declined to make a finding of contributory negligence against Dean in the circumstances. It may be surmised that he recognized this was a close call because his final conclusion was that “[c]ontributory negligence is not proven on the preponderance of the evidence.”

[23] The parties agree that the test to be applied in determining negligence, including contributory negligence, in the case of children is that articulated by this Court in Nespolon v. Alford, 1998 CarswellOnt 2654 (C.A.), at para 53:

In determining the appropriate standard of care for children, the test is whether a child exercised the care expected from children of like age, intelligence and experience (McErlean v. Sarel (1987), 1987 CanLII 4313 (ON CA), 61 O.R. (2d) 396 (Ont. C.A.), at pp. 411-12 and McEllistrum v. Etches, 1956 CanLII 103 (SCC), [1956] S.C.R. 787 (S.C.C.); Heisler v. Moke (1971), 1971 CanLII 625 (ON SC), [1972] 2 O.R. 446 (Ont. H.C.) at p. 448 (per Addy J.), see also Downing v. Grand Trunk Railway (1921), 1921 CanLII 452 (ON SC), 49 O.L.R. 36 (Ont. H.C.) at p. 40). This is both an objective and subjective standard, which acknowledges the need for individualized treatment along with the need for consistency in the law.

[24] The parties also agree that, at an age just shy of his 10th birthday, Dean was old enough for a finding of contributory negligence to be made against him. They disagree, however, on whether such a finding should have been made on the facts of this case.

[25] Mr. Boggs points to a number of findings made by the trial judge and submits that, on these findings alone, a finding of contributory negligence should have been made. These included the findings that:

(a) Dean was a boy of average intelligence;

(b) he had walked to school for some months and had been taught to look both ways before crossing and to follow the crossing guard’s instructions;

(c) his rain hood would not have prevented him from seeing left if he had remembered to look left before he crossed;

(d) he did not remember to look left before he crossed; and,

(e) he knew better.

[26] However, the trial judge made other findings as well that related to whether Dean had “exercised the care expected from children of like age, intelligence and experience”. He was not satisfied that Dean “had experience with crossing a busy four-lane highway unsupervised”. The appellant contests this finding, arguing that there was evidence of Dean having done so before. It does not follow, however, that Dean was “experienced” in crossing busy streets as a result of this, and we are satisfied the trial judge’s finding in this regard was open to him on the evidence.

[27] The substance of the trial judge’s basis for his finding on contributory negligence is found in the concluding paragraph of his reasons on this issue – keeping in mind that he had already completed his full analysis of the incident and the timing of the incident:

Based on my assessment of the witnesses and their evidence, I find that Dean walked at a normal pace to the crosswalk, speeding up a bit before he arrived. He was not necessarily walking with his head down at this point. He may have seen the Antoniak vehicle as he walked south, but if he did he was not equipped at his age to judge distance and speed. Or he may not have seen it because he forgot to look left before he crossed. He knew better, but children are notoriously forgetful when they are distracted or confused. I think that Dean was confused because he arrived at the crosswalk and there was no crossing guard to help him. He did not dart into traffic. I accept that Marc Schulze saw him standing in or near the crosswalk, which implies that his action of turning right and stepping into the roadway was interrupted for at least a perceptible moment. Dean stepped into the lane at a quick walk or jog and got a few step[s into the lane when he was struck. I am not satisfied in all this that Dean acted below the standard of a reasonably prudent 10-year old of like intelligence and experience. Contributory negligence is not proven on the preponderance of the evidence.

[28] The appellant quarrels with certain aspects of this conclusion, particularly the references to Dean “not [being] equipped at his age to judge distance and speed”, the comment that “children are notoriously forgetful when they are distracted or confused”, and the finding that “Dean was confused because he arrived at the crosswalk and there was no crossing guard to help him”. The appellant says there was no evidence to support these observations or findings and that being forgetful, distracted or confused is not an excuse for negligence but rather an indicia of it.

[29] The trial judge heard all of the evidence, however – including, importantly, the testimony of Dean and Tori and other witnesses who were children at the time of the accident. He was entitled to draw inferences from what he determined to be the dynamics of the events as they occurred, and to apply his experience and common sense in doing so. On this basis, and given the record, he was entitled to draw the inferences and come to the conclusions referred to above, in our view. That children lack the judgment of adults and that they are notoriously forgetful when they are distracted or confused, and therefore do not follow instructions on the basis of which “they should know better”, are concepts that are generally accepted and that have been recognized by the courts as factors distinguishing the conduct of children from that of adults in the negligence liability context: see, for example, Gonzalez (Guardian ad litem of) v. Stewart, 1995 CarswellBC 2403 (B.C.S.C.); Bourne (Guardian ad litem of) v. Anderson, 1997 CarswellBC 667 (B.C.S.C.). As this Court noted, in Nespolon v. Alford, at para. 53, the standard of care for children in situations such as this “is both an objective and subjective standard, which acknowledges the need for individualized treatment along with the need for consistency in the law”.

[30] As the paragraph cited above demonstrates, the trial judge applied the correct legal standard of care as set out in Nespolon, namely “the standard of a reasonably prudent 10-year old of like intelligence and experience”. From the application of that standard his finding that no contributory negligence should be attributed to Dean was factually driven. While another finding may have been available on the evidence, the trial judge made no reversible error of fact or mixed fact and law in arriving at his findings and the conclusions he did on the contributory negligence issue.

Disposition

[31] For the foregoing reasons, the appeal is dismissed.

[32] The respondents are entitled to their costs of the appeal, fixed in the amount of $25,000 plus appeal disbursements and HST in accordance with the agreement of counsel.

“R.A. Blair J.A.”

“Gloria Epstein J.A.”

“Grant Huscroft J.A.”