Court of Appeal for Ontario

Date: 2018-04-26 Docket: C64103

Judges: Doherty and Pepall JJ.A. and Gray J. (ad hoc)

Between

Svetlana Danilova and Pavel Danilov Plaintiffs (Appellants)

and

Alla Nikityuk, Valentin Nikityuk, Yana Skybin, Young Men's Christian Association operating as YMCA Simcoe/Muskoka Defendants (Respondents)

Counsel

For the appellants: Amanda M. Chapman and Jessica Mor

For the respondents, Alla Nikityuk and Valentin Nikityuk: Aman Dhillon and Lisa Loader

For the respondents, Yana Skybin and YMCA Simcoe/Muskoka: Andrew M. Mae and W. Thomson

Heard and released orally: April 23, 2018

On appeal from: The order of Justice G. Mulligan of the Superior Court of Justice, dated June 28, 2017.

Reasons for Decision

[1] The appellants raise three grounds of appeal. Two concern the trial judge's credibility assessments and the third alleges prejudice resulting from a five-month adjournment in the course of the trial proceedings.

[2] Counsel for the appellants acknowledged at the outset of oral argument that the appeal is limited to the three issues raised. She takes the position that if any of their grounds succeed, there must be a new trial. If none succeed, counsel does not argue that the judgment should be varied.

[3] We confine our reasons to the three issues raised.

I. The Trial Judge's Assessment of Credibility

[4] The trial judge clearly preferred the evidence of the respondents over that given by the appellants. The appellants claim that he did so in a peremptory manner that failed to demonstrate the basis upon which the trial judge's credibility determinations were made. Counsel relied on a single passage in para. 59 of the reasons for judgment.

[5] It is true that para. 59 is conclusory, however, that paragraph must be read in the context of the entire judgment. Throughout the judgment, the trial judge made findings of fact that amply justified the trial judge's ultimate credibility findings and fully explained to the reader the reasons for that finding: for example, see paras. 174-75, 179. Read as a whole, the reasons adequately explain the trial judge's findings. Those findings were warranted on the evidence and set out the trial judge's "pathway" to his credibility findings.

II. The Collusion Argument

[6] The appellants argue that there was evidence that Ms. Skybin, one of the respondents, colluded with three witnesses called by the YMCA in respect of their evidence. They gave evidence in the second part of the trial, after the five month adjournment referred to above.

[7] The record shows that Ms. Skybin, who speaks Russian, was involved in the preparation of the "will-say" statements by these three witnesses who are Russian speaking. The extent of her involvement in the will-say statements was a matter of dispute at the trial.

[8] When the three witnesses testified, each gave evidence that was inconsistent with the contents of the "will-say" statements in one or two respects. None of the witnesses were asked about any influence Ms. Skybin had on either their "will-say" or, more importantly, their actual evidence at trial. Nor were any questions directed to these witnesses about the "collusion" between Ms. Skybin and the witnesses.

[9] In our judgment, the record does not offer any evidentiary support for a collusion finding. It is difficult to find collusion in a situation in which the "will-says" said to be prepared by Ms. Skybin, one of the alleged colluders, are inconsistent in material respects with the evidence given by witnesses who are said to have colluded with Ms. Skybin. We observe that, in some cases, the version of events in the "will-says" were more favourable to the respondents but in at least one case, the "will-says" were more favourable to the appellants.

[10] The record may have supported an argument that Ms. Skybin was improperly involved in the preparation of the "will-says" and that her involvement should adversely affect her credibility and the credibility of the witnesses to whom the will-says refer. However, that avenue was not pursued at trial. Counsel did not seek to have Ms. Skybin recalled and no questions were ever put to her about her involvement in the preparation of the "will-says". In these circumstances, we see no error in the trial judge's failure to address collusion as a separate consideration in his credibility assessment.

III. The Five-Month Adjournment of the Trial

[11] The trial ran beyond the allotted time. It was adjourned without objection to the fall sittings, some five months later. At the time of the adjournment, the YMCA witnesses had not testified.

[12] Counsel submits that the adjournment caused serious prejudice to the appellants and effectively denied them meaningful access to justice. No one pretends that a five-month adjournment in the middle of a trial is a good thing. It clearly is not. However, this court cannot, in the absence of any request at trial for an earlier date, or any comment by anyone at trial that an earlier date should be sought, declare that a five-month adjournment is so presumptively prejudicial as to require the setting aside of a judgment. No actual prejudice has been demonstrated by the appellants and in this case none can be assumed merely from the length of the adjournment.

[13] The appeal is dismissed.

[14] In our view, this is a case for costs on a partial indemnity basis. Costs to Nikityuk respondents in the amount of $11,000, inclusive of disbursements and relevant taxes, and costs to the YMCA/Skybin respondents in the amount of $20,000, inclusive of disbursements and relevant taxes.

"Doherty J.A."

"S.E. Pepall J.A."

"D.K. Gray J. (ad hoc)"