Court of Appeal for Ontario

CITATION: Eks v. Tadeu, 2020 ONCA 425

DATE: 20200630

DOCKET: C67195

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

Susan Elizabeth Eks

Plaintiff/Defendant to Counterclaim (Respondent)

and

Kerri Lynn Tadeu

Defendant/Plaintiff by Counterclaim (Appellant)

Christopher Du Vernet and Carlin McGoogan, for the appellant

David M. Adams and Matthew E. Taft, for the respondent

Heard: In writing

On appeal from the judgment of Justice Graeme Mew of the Superior Court of Justice, dated June 17, 2019, with reasons reported at 2019 ONSC 3745.

REASONS FOR DECISION

[1] Ms. Tadeu appeals from the trial judgment in which the respondent’s claim was dismissed as was the appellant’s counterclaim. It is the dismissal of the appellant’s counterclaim that is in issue in this appeal.

[2] There is an unfortunate history between these two parties, who were neighbours, that involved the respondent, at one point, vandalizing the appellant’s home. This occurred after an earlier physical confrontation between the two.

[3] The respondent was charged with criminal offences arising out of these incidents. She eventually pleaded guilty to the offences, received a suspended sentence and probation, and moved out of the neighbourhood.

[4] A few years later, the appellant saw the respondent in her neighbourhood. The respondent was waiting outside the home of a friend of hers. The respondent said that she was picking up her friend in order to go and visit a mall. The appellant said that the respondent stared at her intently when she saw her.

[5] The police were called but determined that there was no conduct that required their action. The appellant then sought a peace bond against the respondent. The request for the peace bond was dismissed when the appellant failed to appear for the hearing.

[6] The respondent then commenced this action against the appellant alleging malicious prosecution, harassment and other claims. The appellant counterclaimed for intentional infliction of mental distress, negligence and other claims.

[7] The trial was conducted as a summary trial. At its conclusion, the trial judge dismissed both the claim and the counterclaim. In detailed reasons, the trial judge concluded that none of the claims advanced by the respondent were made out. The trial judge also concluded that none of the claims by the appellant were made out. In this latter regard, the trial judge expressly rejected the evidence of a psychologist called by the appellant. He was critical of the psychologist for having rendered an opinion, in these circumstances, without having reviewed the appellant’s medical records.

[8] In our view, the trial judge was entitled to reach the conclusion that he did respecting the psychologist’s evidence. The appellant also complains that the trial judge failed to consider the report of a psychiatrist which the insurer for the appellant’s employer had obtained which she says supported the psychologist’s evidence. The trial judge was not required to consider the psychiatrist’s report because it was not properly in evidence before him. The report was simply filed (it is not clear on what basis) and the psychiatrist was not called.

[9] The appellant’s argument, at its core, is a quarrel with the trial judge’s factual findings. There does not appear to be any dispute (with perhaps one exception) that the trial judge correctly articulated the component parts of the various causes of actions that the appellant asserted. He then found that the facts did not sustain any of those causes of action. The trial judge was entitled to come to those conclusions. It is not for this court to interfere with those findings of fact absent palpable and overriding error, of which none is shown here.

[10] The possible exception is with respect to the appellant’s complaint that the trial judge erroneously concluded that the appellant had failed to articulate the duty of care that she alleged regarding her negligence claim. He said, at para. 140:

It is not sufficient to throw the words "negligence", "nuisance", "intimidation" and "interference with enjoyment of property" into a prayer for relief, but then not articulate what duty was owed.

[11] Assuming without deciding that the trial judge imposed too high a burden on the appellant’s pleading, that does not change the fact that the trial judge concluded that the facts did not sustain a finding of negligence, however one might articulate the duty of care.

[12] Finally, the appellant complains that the trial judge did not grant a permanent injunction against the respondent to ensure that the respondent’s conduct was not repeated. The trial judge’s decision on this relief was a matter entirely within his discretion. The appellant has not demonstrated any basis for this court to interfere with the manner in which the trial judge chose to exercise his discretion.

[13] The appeal is dismissed with costs fixed at $3,500 inclusive of disbursements and HST.

“K. Feldman J.A.”

“Fairburn J.A.”

“I.V.B. Nordheimer J.A.”