COURT OF APPEAL FOR ONTARIO
CITATION: Kiskadee Ventures Limited v. 2164017 Ontario Ltd., 2016 ONCA 955
DATE: 20161219
DOCKET: C60677
Doherty, MacPherson and Lauwers JJ.A.
BETWEEN
Kiskadee Ventures Limited
Plaintiff (Appellant)
and
2164017 Ontario Ltd., Pal/Max Property Management Inc. and Metropolitan Toronto Condominium Corporation No. 870
Defendants (Respondent)
Jeffrey A. L. Kriwetz and David Fenig, for the appellant
Mark Terence Wong, for the respondent
Heard: December 5, 2016
On appeal from the judgment of Justice Kelly P. Wright of the Superior Court of Justice, dated June 16, 2015, with reasons reported at 2015 ONSC 3877.
By the Court:
[1] The appellant, Kiskadee Ventures Limited (“Kiskadee”), sold produce and poultry to grocery stores. Kiskadee purchased the produce from suppliers in the Caribbean and the poultry from local Ontario suppliers.
[2] Kiskadee operated out of several units in a condominium. The respondent, 2164017 Ontario Limited (“216”), operated its business out of a unit in the same condominium.
[3] 216 had work done in the basement of its unit in 2009. In December 2010, 216 filled in the hole in the basement floor with cement. Kiskadee claimed that the work done in December 2010 damaged the telephone cable running under the floor of 216’s unit. Kiskadee maintained that the damage to the telephone cable caused it to lose telephone service in its units for several days.
[4] Kiskadee sued 216, claiming that the damage to the telephone cable was caused by 216’s negligence. Kiskadee further claimed that its inability to communicate by telephone in a timely fashion with its Caribbean produce suppliers and its Ontario poultry suppliers resulted in substantial business losses. The losses in respect of the Ontario poultry dealers consisted of the profits lost by Kiskadee when it could not complete certain purchases. The losses in respect of the Caribbean suppliers occurred because the suppliers could not communicate with Kiskadee as prearranged at Kiskadee’s place of business. Absent that timely communication, the suppliers had purchased produce on behalf of Kiskadee which eventually could not be shipped to Canada and sold by Kiskadee. Kiskadee alleged that it was required to cover the suppliers’ losses to maintain a good working relationship with them.
[5] Kiskadee’s claim depended almost entirely on the evidence of Latchman Narine, the owner of Kiskadee. Specifically, unless Mr. Narine’s evidence was accepted, there was no evidence that Kiskadee had suffered any business losses as a result of an interruption of its telephone service in December 2010.
[6] 216 challenged virtually every aspect of Kiskadee’s case, although 216 did acknowledge that it filled the hole in the basement of its unit with cement in December 2010.
[7] The trial judge rejected Mr. Narine’s evidence in its entirety. She gave several reasons for doing so. She also concluded that although Kiskadee had lost phone service on the same day that the cement was poured in the basement of 216, Kiskadee had failed to prove causation.
The Grounds of Appeal
(i) The trial judge’s rejection of Mr. Narine’s evidence
[8] A consideration of this ground of appeal begins by recognizing the deference owed to the trial judge’s fact-finding, particularly when the fact-finding is based on a credibility assessment. Counsel for the appellant submits that even taking into account that deference, the trial judge’s rejection of Mr. Narine’s evidence cannot stand.
[9] In support of the submission that the trial judge erred in her assessment of Mr. Narine’s credibility, counsel offers fresh evidence on appeal. That evidence challenges one of the principal grounds upon which the trial judge rejected Mr. Narine’s evidence. In addition to the fresh evidence, counsel argues that some of the other bases upon which the trial judge rejected Mr. Narine’s evidence are tainted by material misapprehensions of the evidence, while still others reflect an unreasonable assessment of parts of his evidence.
[10] Counsel for the respondent accepts that the evidence offered on appeal effectively removes one of the grounds upon which the trial judge rejected Mr. Narine’s evidence. Counsel submits, however, that all of the other grounds, and there were many, withstand appellate scrutiny. He contends that the many reasons advanced by the trial judge for rejecting Mr. Narine’s evidence provide ample justification for that rejection. Counsel submits that had the fresh evidence been before the trial judge, her assessment of Mr. Narine’s credibility would inevitably have been the same.
[11] We will address the fresh evidence first. At trial, Mr. Narine identified certain documents as letters sent to him by his Caribbean suppliers identifying the produce that had been purchased on Kiskadee’s behalf. These letters provided the foundation of Kiskadee’s damage claim as it related to its dealings with the Caribbean suppliers. Some of the letters were dated and some were not.
[12] Mr. Narine was cross-examined about certain fax dates on some of the letters. Those dates were more than a year later than the dates of the letters. The trial judge also questioned Mr. Narine about the differences in the dates. Mr. Narine could offer no explanation for those differences.
[13] The trial judge referred to the differences in the dates in some detail in her reasons (paras. 27-30). She relied on those differences, and Mr. Narine’s inability to offer any explanation for them, in making a strong finding against Mr. Narine’s credibility and the provenance of the letters said to be from the suppliers.
[14] The fresh evidence explains that the fax dates were placed on the documents in the course of the litigation. Counsel for the respondent accepts this explanation. Obviously, this explanation neutralizes any negative impact the difference between the fax dates and the dates of the letters might have on Mr. Narine’s credibility.
[15] When a party puts evidence before the court of appeal, it is incumbent on that party to explain why the evidence was not put forward at trial. As indicated above, Mr. Narine was specifically asked about the dates and had no explanation for them.
[16] On appeal, counsel submits that Mr. Narine could not explain the fax dates because Kiskadee understood that counsel had agreed that all documents contained in the document briefs filed by both counsel were accepted as authentic, meaning they were what they appeared to be. Consequently, Kiskadee’s witness, Mr. Narine, never turned his mind to the differences in the dates and was unable to answer the questions about those differences.
[17] Counsel for 216 submits that the authenticity of the documents contained in the document briefs was not agreed upon at trial. Counsel for 216 contends that it was agreed that the documents would be tendered without formal proof, but that it was open to opposing counsel to challenge the probative value and reliability of any specific document. On counsel for 216’s approach, the authenticity of a document is an aspect of its reliability.
[18] At trial, both counsel filed document briefs containing the documents relied on by them. The briefs were marked as exhibits. Early in the trial, the trial judge inquired as to the basis upon which the documents were tendered. Counsel’s responses were unclear. The trial proceeded without further clarification. Based on the submissions made in this court, it is apparent that counsel had very different understandings of the evidentiary basis upon which the document briefs were filed and marked as exhibits at trial.
[19] The practice of filing document briefs at the outset of trial, containing the documents to be relied on by the parties, is a well-established one. The practice is encouraged as it can significantly enhance trial efficiency. However, trial efficiency is served only if counsel have a mutual and clear understanding of the evidentiary basis upon which the documents are tendered and communicate that understanding to the trial judge. For example, describing a document as “authentic” can mean different things. When tendering document briefs, counsel must take care to ensure that they have a common understanding of that term. The definition of “authenticity” in rule 51.01 provides a helpful reference point. Similarly, counsel should clearly distinguish between hearsay and non-hearsay uses of the contents of documents. Specific documents may require further qualifications and explanations as to the agreed use of those documents. Counsel would be well-advised to commit their shared understanding of the evidentiary basis upon which documents are admitted to writing and to file a copy of that agreement with the document briefs.
[20] We are satisfied that the confusion over the basis upon which the document briefs were filed resulted in counsel for Kiskadee not turning his mind to the difference between the fax dates and the dates in the suppliers’ letters and the impact that difference might have on a consideration of the authenticity of the documents. Had he done so, the explanation offered on appeal would have been put forward at trial. In these circumstances, the failure to offer the explanation at trial should not preclude our consideration of the evidence on appeal.
[21] The admissibility of the fresh evidence turns on whether that evidence, considered with the rest of the evidence adduced at trial, could be expected to have affected the result or, more specifically, could be expected to have affected the trial judge’s assessment of Mr. Narine’s credibility: see Ontario Federation of Anglers and Hunters v. Ontario (Ministry of Natural Resources), 2002 CanLII 41606 (ON CA), [2002] O.J. No. 1445, at para. 63. If the answer is yes, the fresh evidence is admissible and a new trial must be ordered. If the answer is no, the evidence is not admissible on appeal.
[22] The fresh evidence eliminates one of the significant reasons the trial judge advanced to support her finding that Mr. Narine was an incredible witness. However, her reasons contain some nine additional reasons for rejecting his evidence (see paras. 24-44).
[23] Several of the trial judge’s reasons for rejecting Mr. Narine’s evidence are at least as significant to that assessment as is her finding in respect of the fax dates on the letters from some of the suppliers. For example, the trial judge referred to Mr. Narine’s evidence that he could not telephone his Ontario suppliers because the telephone in his office did not work as “an absurd” explanation. This characterization is justified. The finding is particularly significant because it offers strong support for the trial judge’s broader finding that Mr. Narine seemed ready and willing to say whatever he thought would support his claim (para. 42).
[24] In finding Mr. Narine’s evidence incredible, the trial judge also pointed to his evidence that while it was crucial to his business that his Caribbean suppliers be able to contact him at his office in a timely fashion, Mr. Narine made no efforts to contact those suppliers when he realized that they would be unable to contact him because of his telephone difficulties. Mr. Narine testified that the Caribbean suppliers were not accessible and did not have telephones. However, on the evidence offered by Kiskadee, Mr. Narine had telephone numbers, fax numbers and emails for at least some of those suppliers. According to the phone records, Mr. Narine contacted some of those suppliers regularly (paras. 31-33). It was reasonably open to the trial judge to rely on this evidence in rejecting Mr. Narine’s testimony that he had no way of communicating with his Caribbean suppliers because the phone in his office was not working. Mr. Narine’s evidence that he could not communicate with his Caribbean suppliers, and had to wait for their calls, was crucial to Kiskadee’s business loss claim as it related to the Caribbean suppliers.
[25] The trial judge also referred to the total absence of any documentation to support the losses claimed by Mr. Narine to support her conclusion that his evidence was unbelievable (paras. 37-38). For example, Mr. Narine testified that he made repayments of over $48,000 to a supplier named Lopez, without any documents from the supplier to back up the claim. Indeed, on Mr. Narine’s evidence, Kiskadee began to repay Mr. Lopez before Mr. Lopez even claimed a loss (para. 38). Once again, it was open to the trial judge to reject Mr. Narine’s explanation about the losses suffered by Mr. Lopez and to factor that rejection into her ultimate assessment of Mr. Narine’s credibility as it related to the claimed losses.
[26] The trial judge also rejected Mr. Narine’s evidence because Bell Canada telephone bills he relied on to show that Kiskadee had no phone service at the relevant time related to an entirely different timeframe (para. 41). The trial judge was entitled, in assessing Mr. Narine’s credibility, to consider this attempt to put forward documents as supporting the claim when in fact they did no such thing.
[27] Considering the reasons as a whole, we are satisfied that there remained strong grounds upon which to reject Mr. Narine’s evidence even in the face of the evidence offered on appeal. That evidence could not reasonably be expected to have affected the negative assessment of Mr. Narine’s credibility.
[28] Apart from the fresh evidence, counsel for Kiskadee argued that the trial judge made factual errors in her assessment of Mr. Narine’s credibility and that some of the reasons she gave for rejecting his evidence were unreasonable.
[29] We cannot agree. We see no error in the material factual findings underlying the trial judge’s credibility assessment. As to her reasons for finding Mr. Narine incredible, we accept that some of the negative inferences drawn by the trial judge may not have been drawn by other trial judges. None of those inferences, however, fall outside of the broad spectrum of inferences reasonably available to the trial judge. We must defer to those inferences in matters of credibility.
[30] We would not interfere with the trial judge’s assessment of Mr. Narine’s credibility. Based on that assessment, Kiskadee’s claim could not succeed.
(ii) The trial judge’s interventions
[31] Counsel for Kiskadee submits that the trial judge’s repeated interventions, particularly during Mr. Narine’s cross-examination, require a new trial. Counsel argues that the interventions created the appearance that the trial judge was not impartial, but had placed the weight of her office against Kiskadee’s claim. Counsel submits that the trial judge’s interventions made the trial unfair.
[32] During the trial, and particularly during Mr. Narine’s evidence, the trial judge interrupted the questioning of counsel with her own questions on many occasions. Most of the interruptions were benign and some were helpful. For example, some of the trial judge’s questions sought clarification of answers given by Mr. Narine or were designed to expedite the progress of the trial.
[33] Some of the trial judge’s questions of Mr. Narine were, however, improper. On a few occasions, the trial judge cross-examined Mr. Narine. Those kinds of questions should come from counsel and not the trial judge. On one or perhaps two occasions, the trial judge’s questioning is properly described not only as cross-examination, but as aggressive cross-examination. On those occasions, the trial judge’s questions could reasonably be seen as conveying to Mr. Narine the trial judge’s disbelief of the answers Mr. Narine had already given. Our adversarial process has no place for this kind of questioning by a trial judge.
[34] The trial judge’s cross-examination of Mr. Narine, especially on the one or two occasions when that cross-examination became aggressive, served no legitimate trial purpose and jeopardized the appearance of the fairness of the trial. The trial judge should not have asked those questions.
[35] Not every improper question by a trial judge necessitates reversal on appeal. The question must be whether the interventions, considered in the context of the entirety of the proceedings, were sufficiently egregious to lead the reasonable observer to conclude that the appearance of impartiality had been sufficiently compromised so as to undermine the appearance of the fairness of the trial.
[36] After anxious consideration, we are satisfied that the trial judge’s questions did not reach the point at which they compromised the appearance of the fairness of the trial. As indicated above, some of the interventions were appropriate. Most that were unnecessary were harmless. The isolated instances in which the trial judge’s questioning took on the tone of aggressive cross-examination did not, standing alone, compromise what was, in all other respects, a fair trial.
(iii) Causation
[37] Counsel submitted that the trial judge made a serious factual error when she found that Kiskadee had failed to show that the telephone cable servicing its units ran under the basement floor of 216. The trial found that without evidence that the cable ran under 216, Kiskadee could not prove causation (paras. 58-60).
[38] The evidence of the Bell Canada employee who testified for Kiskadee was unclear. It is, however, arguable that his evidence established a link between the telephone cable running into and underneath the basement floor of 216 and the telephone service to Kiskadee’s units in the building.
[39] In any event, any error by the trial judge in her causation finding could have no effect on the result. Her total rejection of Mr. Narine’s evidence left Kiskadee with no evidence capable of establishing that Kiskadee had suffered any loss as a result of the interference with its telephone service.
Conclusion
[40] The appeal is dismissed. Costs to 216 in the amount of $22,000, inclusive of disbursements and relevant taxes.
Released: “DD” “DEC 19 2016”
“Doherty J.A.”
“J.C. MacPherson J.A.”
“P. Lauwers J.A.”