Court of Appeal for Ontario

Date: 20220426 Docket: C68448

Fairburn A.C.J.O., Paciocco and Sossin JJ.A.

Between

Jessica Lynn Capsey Plaintiff (Respondent)

and

William Whiteside Defendant (Appellant)

Counsel: William Whiteside, acting in person William C. Wolfe, for the respondent

Heard and released orally: March 18, 2022 by video conference

On appeal from the judgment of Justice Myrna L. Lack of the Superior Court of Justice, dated June 10, 2020.

Reasons for Decision

[1] This is an appeal from a judgment in which the appellant was found liable for the respondent’s severe ankle injury, resulting from a breach of his duty under s. 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. The respondent attended the appellant’s property with her friend so that the friend could decide if she wanted to rent the property. Upon arrival, the respondent slipped and fell on the appellant’s driveway.

[2] The appellant raises four grounds of appeal:

(1) the trial judge erred in her disregard for, and misunderstanding of, the evidence around the timing of the incident; (2) the trial judge failed to appreciate the relevance of an affidavit; (3) the trial judge erred in her factual findings regarding the actual condition of the driveway at the time that the incident occurred; and (4) the trial judge erred in her assessment of the respondent’s credibility.

[3] In our view, the trial judge’s reasons are detailed and follow a logical chain of reasoning, one that is squarely rooted in the evidence. She carefully explained how she arrived at her factual conclusions. We see no error in how the trial judge reached those factual conclusions, all of which were open to her on the evidence at trial.

[4] In addition, we see no basis to interfere with the trial judge’s decision to exclude the affidavit. That evidentiary decision arises from a discretionary call, one that was open to the trial judge in the circumstances. We would not interfere with that decision as it is owed deference.

[5] Equally, we see no basis to interfere with the trial judge’s credibility findings, all of which are well explained and are owed deference by this court.

[6] Finally, we see no error in the trial judge’s conclusion that the evidence of time in this case was unimportant to the result. While the appellant argues that the registered time of the emergency call was critical to the result of this case because it was many minutes before one would have expected it to be, we defer to the trial judge’s conclusion to the contrary.

[7] The unimportance of the time of that call is supported by the implausibility of the appellant’s theory, a theory that suggested the respondent broke her ankle somewhere else, then got into a vehicle, was driven to the appellant’s driveway, slipped out of the vehicle, and placed herself on his driveway. The implausibility of that theory was significantly strengthened by the severity of the respondent’s injury, requiring the immediate administration of morphine when the ambulance arrived.

[8] It is not for this court to retry the case. That is what the appellant asks us to do. Deference is owed. We see no basis to interfere with the verdict. The appeal is dismissed.

[9] The appellant will pay to the respondent costs in the amount of $6,000, all-inclusive.

“Fairburn A.C.J.O.”

“David M. Paciocco J.A.”

“L. Sossin J.A.”