Mackin v. Valiant Developments Limited, 2019 ONSC 623
CITATION: Mackin v. Valiant Developments Limited, 2019 ONSC 623
DIVISIONAL COURT FILE NO.: DC-17-1043 DATE: 20190125
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
CORBETT, MYERS, and SHEARD JJ.
BETWEEN:
Kelly Mackin Appellant
– and –
Valiant Developments Limited, Valiant Rental Properties Limited and RTJ Property Services Inc. Respondents
Barry Evans, for the Appellant Ian Johncox, for the Respondents
HEARD at Oshawa: January 23, 2019
ORAL REASONS FOR JUDGMENT
Myers J (Orally)
[1] This is an appeal from a decision of Sosna J, dated August 1, 2017 in which the trial judge held the defendant Valiant liable for $10,000 damages in relation to the plaintiff’s slip and fall ankle injury. But he rejected the appellant’s claim that the slip and fall caused her to suffer neck injury or exacerbated her pre-existing degenerative neck condition.
COURT’S JURISDICTION
[2] This appeal is properly brought to this court under section 19(1.2)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
STANDARD OF REVIEW
[3] The issue in this case is whether the trial judge erred in not finding causation in respect of the plaintiff’s neck pain. This is a question of fact or mixed fact in law.
[4] The Supreme Court of Canada addressed the standard of review in an appeal of a judge’s decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. In summary, the standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a palpable and overriding error. (See paragraph 10.) Questions of mixed fact and law are subject to the palpable and overriding error standard unless it is clear that the trial judge made some error of law or principle that can be identified, independent of the judge’s application of the law to the facts of the case.
[5] Mr. Evans fairly concedes that he is facing the palpable and overriding standard.
[6] The appellant argues that while the judge considered each piece of evidence tendered by the appellant, he did not step back and put them all together to support an inference of causation. Mr. Evans refers to the judge’s references to the plaintiff’s spinal cord as being palpable errors because the plaintiff’s injury was to her neck or cervical spine. I do not agree.
[7] In paragraphs 88 to 91 of his Reasons, the trial judge adverted to the correct legal test, including the need to take into account all of the evidence. In the next three paragraphs, he did so. It is not open to us to re-weigh the evidence absent palpable and overriding error.
[8] The judge made specific reference to the plaintiff’s neck in his key finding of fact in paragraph 91 of his Reasons. Whether the term “spinal cord” technically encompasses the “cervical spine”, there is no doubt that the trial judge’s finding was in relation to the plaintiff’s neck. I therefore see no palpable or overriding error in the trial judge’s analysis.
[9] Therefore, I would dismiss the appeal.
D.L. CORBETT J.
I have endorsed the Appeal Book and Compendium as follows: “This Appeal is dismissed for reasons delivered orally by Justice Myers. Costs to the respondent fixed at $7500 inclusive.
___________________________ Myers J.
I agree
Corbett J.
I agree
Sheard J.
Date of Reasons for Judgment: January 25, 2019
Date of Release: January 25, 2019
CITATION: Mackin v. Valiant Developments Limited, 2019 ONSC 623
DIVISIONAL COURT FILE NO.: DC-17-1043 DATE: 20190123
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Corbett, Myers, Sheard JJ
BETWEEN:
Kelly Mackin Appellant
– and –
Valiant Developments Limited, Valiant Rental Properties Limited and RTJ Property Services Inc. Respondents
ORAL REASONS FOR JUDGMENT
Myers J
Date of Reasons for Judgment: January 24, 2019
Date of Release: January 24, 2019