CITATION: Dowell v. Millington, 2016, 2016 ONSC 6671
COURT FILE NO.: DC-15-22-00
DATE: 2016 10 26
ONTARIO
SUPERIOR COURT OF JUSTICE
(SMALL CLAIMS COURT APPEAL)
B E T W E E N:
HENNIE DOWELL
H. S. Albrecht, Counsel for the Respondent
- and -
JULIE MILLINGTON
R. Findlay, Counsel for Appellant
Heard: August 5, 2016.
Nature of the Appeal
[1] Millington appeals from the decision of Deputy Judge K. A. Thompson of June 29, 2015, in which she found Millington liable to Dowell for personal injury sustained as a result of having electrolysis done on her face shortly after receiving injections of dermal filler into her face in an area near to where electrolysis was applied. Deputy Judge Thompson fixed damages at $6,000. Dowell cross-appeals from Deputy Judge Thompson’s assessment of damages, seeking an award of $25,000.
Jurisdiction
[2] An appeal lies to the Divisional Court from a final order of the Small Claims Court. Such appeal is to be heard by a single judge (see: s. 31 and s. 21(2)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43).
Standard of Review
[3] The standard of review in an appeal of an order of a judge is set out in Housen v. Niklaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, there is a spectrum. With respect to the application of the correct legal principles to the evidence, however, the standard is palpable and overriding error. The reasons for this standard are simple. The trial judge is presumed correct. The trial judge heard and saw the witnesses and was in a better position than an appellate judge on review, and therefore, the trial judge is due a high degree of deference.
Background
[4] Millington operated Julie’s Spa in Burlington, Ontario. She had a contractual relationship with Angie Taplin, a registered nurse, to split fees generated by dermal filler injections Ms. Taplin performed.
[5] On April 8, 2010, at Millington’s spa, Taplin injected into Dowell’s face, a dermal filler called Beautical 5, which Taplin purchased from Dr. Rothstein. Dowell knew Taplin, having seen her at the office of her plastic surgeon, Dr. Harris. Taplin and Dowell had some discussion about the filler, but it was not specific. Dowell signed the consent form before treatment. At the time, Dowell had been diagnosed with early MS, although it was not active. Dowell’s treating medical people, including Taplin, were aware of this.
[6] A week later, on April 15, 2010, Dowell had electrolysis on her face, as she had done several times before. She asked about the safety of doing electrolysis so soon after the filler injections in the areas of the filler. Taplin and Millington assured her of the safety of electrolysis in these circumstances. The electrolysis was done.
[7] On April 16, Dowell’s face began to swell and became painful. On April 17, she attended at hospital twice and each time given an injection of antihistamines. She had a third on the 18th. She attended at Dr. Harris’ office. He said that the electrolysis caused the adverse reaction after her injection with Beautical. The remedy was surgical removal of the filler and infection. Between April 17 and July 1, 2010, Dowell had surgeries where the swollen areas were incised, and the filler and infection squeezed out. She was prescribed prednisone, antibiotics and Tylenol 3. She received steroid injections to reduce the marks on her face and underwent further surgeries to improve her post infection/surgery looks. The total surgical remedial cost was $2,200. She lost 7 weeks of work.
[8] Dowell’s husband negotiated a settlement with the manufacturer of Beautical 5, Taplin and Dr. Harris of $5,500. The action against Millington, therefore, was for Millington’s own, several liability.
The Trial Decision
[9] The learned Deputy Judge held that Beautical was NOT licensed by Health Canada, that Health Canada halted the sale of Beautical 5 in December, 2009, and that Health Canada issued a bulletin on October 31, 2009 saying that Beautical was no longer authorized for sale. Notwithstanding this, Millington was still advertising, promoting, and selling it in April, 2010.
[10] Neither Millington nor Taplin knew about Health Canada’s licence actions in 2008 concerning Beautical. Millington confirmed that Dowell questioned her about the safety of electrolysis so soon after the injections. Millington called the product distributor and was told it was safe. She did not call a dermatologist, plastic surgeon, or Health Canada.
[11] Millington advertised herself as an expert in skin care, and explained in her material the research she does to keep current with product information. Her professional body required her to keep extensive notes for each client, which she failed to do. She did not request from Taplin a map showing where Beautical was injected into Dowell’s face before Millington performed the electrolysis. She did not know from where Taplin purchased the Beautical nor did her records show it. Millington knew that Taplin was giving injections through Dr. Harris, but did not know she was also giving them through other doctors.
[12] Two experts testified at trial, Dr. Ireland for Millington and Dr. Brown for Dowell. The learned Deputy Judge preferred the evidence of Dr. Brown over that of Dr. Ireland. She rejected Dr. Ireland’s evidence as Dr. Ireland had a lack of training in in plastic surgery and electrolysis, she had an ongoing business relationship with Millington, her only source of information on Dowell was what she received from Millington in conversations, and Dr. Ireland did not meet with or examine Dowell or review her medical records.
[13] Based on the evidence before her, the learned Deputy Judge held that Dowell had done her best to be an informed consumer. She relied on Taplin, Millington and Dr. Harris, as experts. She held that Millington did not know about Health Canada’s actions against Beautical in 2009, did not know that Taplin was being supervised by 3 plastic surgeons, and did not know the source of the Beautical that Taplin injected into Millington’s patient in Millington’s spa. She advertised the product and sold the product without knowing about it. She was not an expert in the product. She relied on Taplin and Dr. Harris, who were similarly ignorant of the product. They all relied on the distributor. No one checked with Health Canada.
[14] The learned Deputy Judge held that Millington was negligent and awarded general damages of $6,000,
Disposition
[15] The appeal is dismissed. The cross appeal is also dismissed, except with respect to the learned Deputy Judge’s failure to provide for prejudgment interest. The Judgment below is varied to include an award of pre-judgment interest at 5% for 4 years and 8 months, in the sum of $1,400. Post-judgment interest shall run from the date of the learned Deputy Judge’s reasons, at the prescribed rate.
Analysis
Millington’s Appeal
[16] In her Factum, Millington advanced several grounds of appeal which she touched on only briefly in oral argument. In argument, for the most part, she dealt with perceived inadequacies with and failings in Dowell’s factum.
[17] Millington’s grounds for appeal are:
a) The Deputy Judge failed to provide adequate reasons for decision;
b) She erred in holding that the April 15, 2010 electrolysis treatment caused the Plaintiff’s injuries;
c) She erred in finding the Defendant negligent;
d) She erred in failing to draw an adverse inference from the fact that the Plaintiff did not call Dr. Harris as a witness;
[18] In addition, in her factum and oral argument, Millington argued that the Divisional Court should not intervene in the damages award.
[19] For reasons detailed below, I dismiss Millington’s appeal
a) The Deputy Judge failed to provide adequate reasons for decision;
[20] A judge must provide be clear reasons, in sufficient detail so that the losing party knows why he or she lost, so that the public can see that justice was done, and was seen to be done, and so that a Court of Appeal can engage in effective appellate review if an appeal is taken: see R. v. Sheppard, 2002 SCC 26, para. 24 to 30. Reasons need not be perfect, and must be considered with the record, as a whole: see R. v. Harper, 1982 CanLII 11 (SCC), [1982] 1 SCR 2 at pg. 14.
[21] Millington undertakes a microscopic analysis of the learned Deputy Judge’s reasons, and makes a number of specific complaints. Almost no line is left uncriticized.
[22] First, Millington says that the Deputy Judge did not break her reasons down according to the elements of a negligence claim: existence of a duty, breach of the duty, causation of damages. She argued that the Deputy Judge failed to take into account lack of proximity in time between injections and electrolysis. She made findings without evidence. She erred in finding Taplin was Millington’s agent and therefore liable for her. Most important, she erred in accepting Dr. Brown’s evidence. She says “Charitably put, this Judgment is simply legally vacuous”: see paragraph 67 of the factum.
[23] I deal here only with Millington’s main issues with the learned Deputy Judge’s reasons.
[24] The Deputy Judge may be criticized for placing findings under her headings of “Evidence”, “Discussion” and “Argument”, instead of using clearer headings and addressing the elements of a cause of action in negligence. However, she addressed all of the elements, some if only indirectly, and made ample findings of fact to support her decision.
[25] On the standard of care, implicitly, the Deputy Judge was of the view that Millington, as someone who performs electrolysis and holds herself out as an expert in the field of skin care, owed a duty to act knowledgably. She ought not to have allowed one of her contractors to inject Beautical into Dowell given Health Canada’s actions, and ought not to have performed electrolysis in the same area as the Beautical injections performed only a week earlier. She breached that duty. She was not knowledgeable about the products that were injected into Dowell, nor was she knowledgeable about the effects of electrolysis so soon afterward, and in the same areas as the injections.
b) She erred in holding that the April 15, 2010 electrolysis treatment caused the Plaintiff’s injuries;
[26] The learned Deputy Judge correctly, although briefly, stated the test for causation by referring to Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 SCR 311 , Odhavji Estate v. Woodhouse, 2003 SCC 69 and Clements v. Clements, 2012 SCC 32. She acknowledged and understood that in all but exceptional cases the “but for” test applies. It is not applied in the medical or scientific sense, but in a broad, robust and pragmatic way. She applied that test in a broad, robust and pragmatic way. For reasons she stated, she rejected Dr. Ireland’s evidence and accepted Dr. Brown’s, which she used to establish causation. I see no error.
c) She erred in finding the Defendant negligent;
[27] Millington says that the Deputy Judge implicitly found Millington negligent because she should have known that electrolysis performed one week following the Beautical 5 injection would cause the reactions Dowell suffered, and she should have known Beautical would cause inflammatory reactions.
[28] I disagree for two reasons. First, Millington mischaracterized the Deputy Judge’s findings. The Deputy Judge found that Beautical ought not to have been injected into the Plaintiff, and that performing electrolysis on or near the area of the Beautical injections introduced bacteria that caused the infections.
[29] The gravamen of Millington’s argument on this ground of appeal is that the Deputy Judge was incorrect in accepting the evidence of Dr. Brown over that of Dr. Ireland. While that was raised in the Notice of Appeal and some arguments were advanced in this respect, it was not pursued in the factum, and the Respondent had no clear that this ground of appeal was being advanced.
[30] Second, the argument Millington advances is part her overall view that Taplin was an independent contractor, not an employee for whom Millington is liable. The Deputy Judge’s found that Millington was responsible for Taplin’s actions.
[31] In any event, the Deputy Judge’s finding is correct. As indicated above, she gave clear reasons for preferring the evidence of Dr. Brown over that of Dr. Ireland. She acted on that evidence re causation.
d) She erred in failing to draw an adverse inference from the fact that the Plaintiff did not call Dr. Harris as a witness;
[32] There is no error in this regard.
[33] As a general rule, an adverse inference may be drawn against a party for failing to call a material witness or lead material evidence. The inference is that the evidence the witness would have given would have been favourable to the other party’s case. The inference is one of logic and experience. It us usually be drawn where the evidence is material, is not before the Court otherwise, and no plausible reason is given for failing to call the evidence. The inference usually requires that the power to lead the evidence or call the witness is uniquely within the power of the party against whom the inference is to be drawn. For a detailed examination of adverse inferences for failing to call a witness, see Fuerst &Sanderson, Ontario Courtroom Procedure (3d); Toronto, LexisNexis, 2012, pg. 993, and Lederman et al. The Law of Evidence in Canada (4th); Toronto, LexisNexis, 2014, §6.450 to 6.452.
[34] In this case, Millington could have called Dr. Harris.
Dowell’s Cross Appeal on Damages
[35] Dowell says that $6,000 for general damages is exceedingly low, and that the proper award ought to have been at the Small Claims Court limit of $25,000. She argues that an award of damages is a question of law, and therefore, the standard of review is correctness. Dowell argues that there should be uniformity and consistency in assessing damages and the need to maintain that degree of consistency.
[36] Second, Dowell argues that the award of damages did not consider the issues of pre-judgment interest, past pecuniary claims for medical treatment and the need for future medical treatment.
[37] It is true that the learned Deputy Judge awarded $6,000 in general damages. However, that was for Millington’s several damages. The totality of the damages, including the settlement made with the other potential defendants, is $11,500.
[38] I dismiss the cross appeal except in one specific aspect.
[39] While the amount for damages may be low, an appellate court cannot interfere with a damages award merely because the appellate judge thinks it ought to have been different. An appellate court can only interfere where there is no evidence on which a trial judge could have reached the conclusion s/he reached, where s/he proceeded on wrong principles, or where the result is wholly erroneous: see Woelk v. Halvorson, 1980 CanLII 17 (SCC), [1980] 2 SCR 430, para. 9, and Clark v. General Distributors Ltd., (1986) 24 OAC 76, para. 5.
[40] I do not find that the award of general damages of $6,000 is so low as to be wholly erroneous, that there was no evidence upon which she could have assessed damages at this amount, or that she proceeded on the wrong principles. Indeed, the cases argued before me were the same cases argued before her.
[41] With respect to the pecuniary claims, the Deputy Judge was aware of the fact that Dowell spent $2,200 on restorative surgery. On the face of the record, it is not clear that Dowell led evidence as to her loss of income of the cost and necessity of any future surgery or medical care. Accordingly, her total general damages award, between the settlement and the judgment is approximately $9,000, once the $2.200 pecuniary claim is satisfied.
[42] Dowell is correct that the Deputy Judge did not make a specific award with respect to pre-judgment interest. The Plaintiff claimed it at 5%. Millington did not object to this plea, merely that damages should be $0. The learned Deputy Judge did not discuss any circumstances that might have influenced her to deny Dowell pre-judgment interest. Therefore, Dowell’s appeal is allowed to the extent that the Deputy Judge’s judgment is amended to include pre-judgment interest at 5% for 4 years and 8 months, in the sum of $1,400. Post Judgment interest shall run from the date of the learned Deputy Judge’s reasons, at the prescribed rate.
[43] I am prepared to entertain argument in writing as to who pays whom costs and in what amount. The submissions are limited to three pages each, excluding offers, bills of costs and cases. Dowell’s submissions are to be served and filed two weeks after the release of these reasons, and Millington’s, two weeks after that..
Trimble J.
Released: October 26, 2016
CITATION: Dowell v. Millington, 2016, 2016 ONSC 6671
COURT FILE NO.: DC-15-22-00
DATE: 2016 10 26
ONTARIO
SUPERIOR COURT OF JUSTICE
(SMALL CLAIMS COURT APPEAL)
B E T W E E N:
HENNIE DOWELL
Appellant
- and –
JULIE MILLINGTON
Respondent
REASONS FOR JUDGMENT
TRIMBLE J.
Released: October 26, 2016