COURT FILE NO.: CV-12-35170
DATE: 2021/03/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOHN BELTON
L. Hillyer and J. Page, Counsel for the Plaintiff
Plaintiff
- and -
KATIE SPENCER
O. Guillaume, C. Missiuna and M. Sagermann, Counsel for the Defendant
Defendant
HEARD: Virtually October 13 to December 2, 2020; Submissions heard on December 18, 2020
Reasons for Judgment
[1] In the afternoon of May 31, 2010, the plaintiff John Belton, who owned and operated Cedar Creek Stables with his former wife, claims he suffered serious injuries to his face when he was leading the defendant’s horse May back to the barn.
[2] The plaintiff had been hired by the defendant to stable and care for her horse at Cedar Creek Stables since October 1, 2009.
[3] There were no witnesses to the incident and the plaintiff has no recollection of what happened other than he was walking the horse back towards the barn from the paddock. The defendant was not there that day.
[4] The plaintiff alleges that the horse reared up high on its hind legs suddenly and unexpectedly and with its front legs struck the plaintiff on the right side of his face. The plaintiff also alleges that this occurred due to the defendant’s fault based on the principles of scienter and/or negligence including her failure to warn the plaintiff of the horse’s dangerous behaviour and her negligent training of the horse.
WHAT HAPPENED ON MAY 31, 2010?
[5] Mr. Belton was 58 years old at the time of trial. By all accounts, including his own evidence and that of his daughter and other witnesses at trial, at the time of his injury he was a very experienced and knowledgeable horseman.
[6] He had ridden and trained horses for high-level jumping competitions for about 40 years when he lived in the United Kingdom before coming to Canada in 2008. He considered himself to be a professional horse trainer there including breaking in other people’s horses, competing in high-level show jumping competitions, as well as buying and selling horses.
[7] He and his wife decided to move to Canada with his daughters to eventually open a horse stable business and help his youngest daughter Nicole continue her training and participation in high-level horse jumping competitions. They purchased Cedar Creek Stables in October 2008 for boarding and caring for other people’s horses.
[8] On October 1, 2009, the defendant Katie Spencer entered into a written contract with Cedar Creek Stables to board her horse there. That agreement required Cedar Creek Stables, being the plaintiff, his former spouse Kay Belton and his daughter Nicole Belton, to “turn out” the defendant’s horse to the paddock in the morning and “turn in” the horse back to the barn in the afternoon by walking beside or leading it. That was in addition to their other duties of feeding and watering the horse, cleaning the stalls and other care and maintenance they provided on a daily basis.
[9] No one saw the incident itself and the plaintiff has no memory of it. His position is that the application of common sense to the known facts leads inevitably to the conclusion that the horse reared suddenly and unexpectedly striking the plaintiff on the right side of his face or coming down on the plaintiff which is the best and most probable explanation of the plaintiff’s injury.
[10] The defendant’s position is that nobody knows what happened to the plaintiff on May 31, 2010. There is only speculation, conjecture and theory to suggest it happened the way the plaintiff alleges but none of it is supported by any reliable evidence.
[11] The plaintiff admitted that he had turned out and turned in the defendant’s horse probably 100 times prior to this incident on May 31, 2010 after he had returned to the farm in November 2009 without any incident or issues. He had left Cedar Creek Stables for a few months in 2009 to return to England to drive a truck and earn some income for his family due to the poor financial situation of Cedar Creek Stables at that time.
[12] The evidence admitted by the plaintiff also confirmed that it was likely that the plaintiff, his former wife Kay Belton and their 16-year-old daughter Nicole Belton had walked beside or led the defendant’s horse about 480 times during that time period also without any incident of rearing or other misbehaviour.
[13] The plaintiff, Kay Belton and Nicole Belton all admitted that they operated as a team and that whatever they experienced with any of the horses’ behaviour in their stables would have been known by the others.
[14] Nicole Belton, despite her young age at the time, was also a very experienced horse woman who also competed in high-level jumping competitions and worked full time at Cedar Creek Stables. She admitted that she and her father, because of their working closely within inches of the horses on a daily basis, would likely have known the horses at Cedar Creek Stables better than their owners/boarders.
[15] The plaintiff’s evidence is that he and his daughter Nicole were turning in the horses that afternoon starting at approximately 3:30 p.m. His last memory is his walking into the grass paddock beside the barn to retrieve May. He said he took the lead rope or chain off the fence of the paddock and attached it to May’s halter. After leaving the paddock with the horse he said he closed the gate behind him. While holding onto the rope with his right hand and while on the horse’s left side approximately two feet away, he walked it back approximately 200 feet along the laneway leading to the barn. That is the last of his memory.
[16] The evidence of Nicole Belton was that she saw her father walk to the grass paddock to get the horse. She then walked inside the barn with the horse that she had. She did not see her father actually enter the paddock or walk the horse back along the laneway. She said she exited the barn door and saw her father lying on his back and not moving with his injured, bloodied head on a grass patch on the left side of the laneway and his legs facing straight into the laneway. The defendant’s horse was nowhere close to the plaintiff at that point. She went to her father and put him in a recovery position and immediately called an ambulance on her cell phone.
[17] She said another boarder Anne Durnford arrived at the scene who said she would wait for the ambulance at the driveway. Nicole then went to shut the gate of the paddock where May was found and went back to tend to her father.
[18] Nicole Belton gave no evidence that she had heard any sound from the horse before she saw her father lying on the ground. She admitted that she was speculating when she thought her father had been injured by the horse kicking his face after it had been spooked.
[19] Anne Durnford confirmed that she was talking with Nicole Belton at the barn door entrance as the plaintiff would bring horses into the barn between them. She also did not see the incident itself. She recalled that suddenly Nicole Belton started screaming for an unknown reason. She also saw the plaintiff lying on his back perpendicular to and in the laneway about 50 feet away from the doors of the barn with his head next to a line of rocks that were abutting a grassy flat area. She said she was the one who called 911 on her cell phone within a minute of her first reaching the plaintiff on the ground.
[20] In these circumstances, the fact that the EMS records of the ambulance services witnesses who attended at the scene suggest the history of the incident of Mr. Belton being kicked by a horse is of no significance and no reliance can be placed on that evidence as far as what actually happened.
[21] The two separate EMS records of the Halton and Hamilton paramedic service and the evidence of the ambulance services witnesses confirming the 911 call being received at 4:25 p.m. are the most reliable pieces of evidence that the incident involving the plaintiff actually happened around 4:24 p.m. that afternoon and the ambulance crew arrived at around 4:45 p.m. when it was raining which evidence I accept as factual.
[22] Furthermore, the evidence of the Hamilton General Hospital records and attending plastic surgeon Dr. Avram who performed the facial construction surgery on Mr. Belton stating his injuries were consistent with the history he obtained that he had been kicked by a horse is also of little or no significance as no one had actually seen or knew what happened.
[23] The ophthalmologist Dr. Mandlecorn stated that he believed the plaintiff’s injuries were consistent with his being struck by a horse’s hoof but admitted in cross-examination that all he could say was that he had been struck by something.
[24] In my view, that opinion evidence does not help to establish how the incident occurred and whether and how the horse allegedly caused the plaintiff’s injuries. In particular, it is not evidence at all suggesting or confirming that the defendant’s horse reared up high to a vertical position suddenly and unexpectedly and then struck the plaintiff’s face with its flailing front legs.
[25] The evidence of Nicole Belton, the plaintiff and a number of the other witnesses confirm that if the plaintiff indeed had been struck on his face by the horse’s hooves, it was just as consistent as his being kicked with the horse’s hind legs or Mr. Belton falling on his own to the ground for whatever reason including getting tangled up in the horse’s legs and the horse then striking him when he was down.
[26] There is also the evidence of Anne Durnford who stated that when she arrived at the scene, she saw the bloodied head of Mr. Belton close to, next to and beside a line rocks on the grassy area adjacent to that laneway.
[27] The plaintiff’s submission is that the Court should draw the reasonable inferences and conclusion from the evidence of the defendant’s horse’s behaviour both before and after this incident to confirm that the plaintiff’s injuries were indeed caused by the horse suddenly and unexpectedly rearing upon its hind legs completely vertical and then flailing its front legs striking the plaintiff’s face.
MAY’S PRIOR DISPOSITION AND BEHAVIOUR
[28] The significant problem with that position is that all the evidence from every witness at the trial including the plaintiff, his daughter and his former wife confirmed that prior to the incident, the defendant’s three and a half year old horse was very friendly, mellow, very calm, laid back, well mannered, a steady temperament, easy to handle, very sweet, a “lapdog” or “puppy dog” version of a horse of the Warmblood breed known for this type of behaviour – all adjectives used to describe May by the various witnesses throughout this trial.
[29] Those witnesses included Johanne Dietrich, the original owner of the horse; Heather Mason, the original trainer in the spring of 2009; and Dr. Malastinic, the veterinarian who conducted the pre-purchase examination of the horse in September 2009. They also included the veterinarians Dr. Bell and Dr. Barbour and the equine massage therapist Tracy Mitchell, all of whom treated the horse including shortly before May 31, 2010 as well as other horse owners at Cedar Creek Stables including Stephanie Lauritson and Tory Corneau. I accept all their evidence in that regard as being factual.
[30] The evidence of Heather Manbert who was qualified by the defendant as a participant expert to provide opinion evidence in equine training and behaviour regarding the horse was particularly significant and I accept it in its entirety. Ms. Manbert in giving her evidence tended to downplay her experience and credentials as a highly qualified trainer with considerable expertise in horse behaviour. She competed at the highest level of horse jumping competitions not just in Canada and North America but throughout the world. She was a member of the Canadian Equestrian Team in the 2000 Olympics in Sydney, Australia.
[31] She was raised on a family farm stable operation that had 300 horses. She has trained hundreds of horses and students and was the trainer of the horse May, providing lessons to the defendant Spencer at Cedar Creek Stables since October 2009 to the date of the incident as well as after that when the defendant left Cedar Creek. She described the horse as a sweet, well behaved, playful, good-natured and somewhat cheeky young horse. I accept her evidence that she had not seen the horse rear up before this incident of May 31, 2010. She rejected and did not adopt giving an answer allegedly to the contrary to an investigator prior to the trial. The investigator was not called to testify to prove any such contrary statement was made.
[32] There was no evidence at trial that at any time before this incident the horse had reared up standing up on its hind legs suddenly and unexpectedly and flailing its front legs when it was being turned in from or out to the paddock by anyone including the Beltons.
[33] There was evidence that the horse shortly prior to this incident was being treated for myositis in her back. The evidence was that this was not of any significance and there was no evidence that it was or could be a likely cause of the horse rearing up unexpectedly on May 31, 2010.
[34] The plaintiff referred to the evidence of Torrie Corneau and Stephanie Lauritson that they saw the horse in her stall sometimes get excited when she was about to be fed at feeding time and rear up about two feet. That evidence is of no consequence. Neither Nicole nor John Belton made any mention of this in their evidence as being of any significance or concern to them and they were the ones who were feeding the horse.
[35] Nicole Belton stated that prior to May 31, 2010 she had only seen the horse do a half rear or “hop rear” on one or two occasions in the arena. She said it was a little playful rear which was not really dangerous or anything like that. It was typical of a young horse. She admitted May was a nice, safe horse. Again, she had no concerns with this horse’s behaviour even after seeing that.
[36] The plaintiff admitted in his evidence that Nicole may have said that to him before this incident. He also admitted that all or most horses might rear up a little shifting from side to side like that which was not a concern to him. By that he meant a horse rearing up on its hind legs with the front legs off the ground to his waist or chest height. He is 5’7” in height.
[37] He conceded that given his expertise he was able to read the mind of the horse to anticipate what could happen even though the horse could react unexpectedly or unpredictably when he was handling it. That was not a worry for him as he always paid attention and could maintain control of the horse because he was holding onto the lead rope.
[38] The plaintiff also admitted that the defendant’s horse was a sweet horse and he never noticed any behaviour issues or anything out of the ordinary when turning the horse in or out on those 100 occasions prior to this incident of May 31, 2010. Had there been any, he would have noticed them as he was in close contact with the horse several times a day.
[39] I accept Ms. Spencer’s evidence that the plaintiff told her on many occasions that the horse was the most well-behaved young horse he had ever come upon in all his years with horses.
[40] As noted above, because of the numerous daily and close contact by Nicole Belton and her father with the horse between October 2009 to May 31, 2010, they would probably know the horses better than their owner/boarders.
EVIDENCE OF PRIOR REARING INCIDENTS
[41] The plaintiff seeks to rely on three prior incidents involving the defendant’s horse and one subsequent incident. He states that the Court should draw a reasonable inference and conclusion from that evidence that the cause of the plaintiff’s injuries on May 31, 2010 when it was being led to the barn by the plaintiff was the sudden and unexpected rearing up of the horse on its hind legs in a vertical position with the horse then striking the plaintiff’s face with its front legs or coming down on the plaintiff.
[42] There was no such prior behaviour of the horse.
[43] Anne Durnford testified that at some time prior to May 31, 2010, she observed the defendant Spencer training the horse on a lunge line in the indoor arena at Cedar Creek Stables.
[44] In the horse world, “lunging” a horse is a training and exercise technique that involves the handler attaching a long lead line or rope of approximately 25 feet to the halter of the horse with the horse then travelling around the handler in a circle at a walk, trot, canter or gallop gait. A lunge whip is commonly held by the handler in the other hand and flicked behind the horse acting like a guide to direct the horse forward and control it.
[45] On this occasion, Anne Durnford thought the horse was not cooperating while moving on the circle and she saw the horse bounce up and down on her hind legs four or five times over a two-minute period.
[46] Sometime after this first incident but also prior to May 31, 2010, she observed the defendant again lunging the horse. She said this time while on the lunge line about 25 to 30 feet away, the horse turned towards the defendant who was standing in the centre of the lunging circle, stopped and went up on her hind legs. Her front legs were probably 5 feet off the ground but stationary. Significantly, there was no threatening behaviour or clawing or flailing of its front legs towards the defendant.
[47] There are some issues with respect to the reliability of this evidence of Ms. Durnford and the significance of this evidence regarding establishing what actually happened on May 31, 2010.
[48] First, Ms. Durnford said nothing about these incidents to the defendant or the Beltons as she did not think there were any concerns of the horse being dangerous because of what she had seen. She admitted that it was not unexpected that horses could rear while being lunge line trained when the handler was 25 to 30 feet away. She also admitted that there was a big difference between walking a horse with a short lead rope which is what the plaintiff said he was doing when he was injured as compared to lunge line training a horse around a circle 25 to 30 feet away.
[49] Furthermore, her evidence only confirms the two incidents were weeks apart. Accordingly, they could have occurred shortly after she started boarding her own horse there on November 1, 2009. There was no evidence to suggest these incidents happened in 2010 or relatively shortly before the incident of May 31, 2010 involving Mr. Belton. They could very well have happened five or six months prior.
[50] At trial, the defendant Spencer stated that in the winter of 2009 or early 2010 before February 14 while riding the horse in the indoor arena, the horse reared somewhat but with its front feet only about two feet high. The defendant explained that this happened because the horse had recently had her body hair clipped, she had removed the wool cover and the horse was sensitive to the cold. She immediately smacked the horse with the riding crop behind her leg to reinforce her own leg movement which was standard training procedure to have the horse go forward. The horse immediately returned to the ground and did so.
[51] This evidence appears similar to the evidence of Nicole Belton.
[52] Again, none of this evidence confirms any prior incident of the horse rearing completely vertical on its hind legs unexpectedly and in a dangerous manner flailing or clawing its front legs towards its handler at any time including while being walked or led by anyone including the Beltons.
[53] None of the witnesses suggest that any of these prior incidents establishes that the horse likely reared up vertically on its hind legs suddenly and unexpectedly on May 31, 2010 flailing its front legs and causing Mr. Belton’s injuries. The plaintiff’s expert Stacie Ryan simply made the assumption in her evidence that the defendant’s horse reared up and kicked Mr. Belton in the face and admitted she did not know what happened.
[54] It is noteworthy that even Stacie Ryan admitted that although a horse can rear if it is spooked, it would not normally do so. Rather, it would try to get away dragging the handler down the laneway with it and buck or kick out with its rear legs.
[55] Ms. Ryan also admitted that it was certainly possible that the plaintiff might simply have slipped while walking the horse and the horse stepped on him after that occurred. She also admitted he could have slipped and fallen and hit his head on rocks if there were rocks around as Ms. Durnford stated.
SUBSEQUENT INCIDENT – EVIDENCE OF PETER HILL AND LISA SEARCHFIELD – SIMILAR FACT EVIDENCE
[56] The plaintiff also wants to have admitted the evidence of Peter Hill regarding what he said he observed of the defendant and her horse about two weeks after the incident. The plaintiff suggests that the evidence should be admitted to establish a rearing behaviour of the horse and that the horse likely reared up completely and vertically and flailed its front legs striking the plaintiff’s face earlier on May 31, 2010.
[57] The plaintiff also wishes the evidence admitted to establish the improper training techniques of the defendant Spencer and to support the credibility of the witness Anne Dunford.
[58] The defendant objected to that evidence being admissible as similar fact evidence and because it was not relevant.
[59] I decided to hear the evidence first and decide if it was admissible and if so, for what purpose. Greenhalgh v. Corporation for the Township of Duoro-Dummer, 2009 Canlii 57148 (ON SC) at para. 30.
[60] While there may be a general exclusionary rule, in certain cases similar fact evidence can be highly relevant and cogent in relation to an issue at trial. Its probative value and search for the truth outweighs any potential for misuse. R. v. Handy 2002 2 SCR 902 (SCC), para. 41.
[61] The strength of similar fact evidence must outweigh the reasoning prejudice and moral prejudice. The inferences sought to be drawn from the evidence of similar facts must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence. Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed., p. 811.
[62] The court takes a common sense approach to the evidence. Before the evidence is admissible, the trial judge must determine on a balance of probabilities whether the probative value of the inferences exceeds any prejudice likely to be created even if an element of moral prejudice is to be involved.
[63] The strength of the alleged similar fact evidence and its credibility is a significant factor that the trial judge has to consider in assessing its admissibility. If it is not believable, it has no probative value and it must be excluded. Paciocco and Streuuser, The Law of Evidence, 7th ed., p. 63; R. v. Handy, para. 134.
[64] The issue in every case is whether the probative value of the evidence outweighs its prejudicial effect.
[65] The Handy framework is to be utilized in civil cases as well. In civil cases, the courts will admit evidence of similar fact if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side, and also that the other side has fair notice of it and is able to deal with it. The Law of Evidence in Canada, p. 798.
[66] John Belton and his wife Kay Belton were separating and had financial difficulties. They put the stables up for sale in April 2010. Peter Hill agreed to purchase the plaintiff’s Cedar Creek Stables business on May 14, 2010, just a couple weeks prior to Mr. Belton’s injuries. The closing date was August 18, 2010. Mr. Hill owned a manufacturing business and had some but limited recreational horse experience. He wanted to buy and operate the stables for his own and girlfriend’s enjoyment.
[67] He became aware of the plaintiff’s serious injuries from his real estate agent Lisa Searchfield who arrived at the scene shortly after the incident of May 31, 2010.
[68] About two weeks later in June when he was visiting the farm before the closing of the deal, Mr. Hill said he observed the defendant and her horse in the outdoor sand ring. He said he observed the defendant lunging the horse on a 25-foot line. He said he saw the horse stop in front of the defendant and rear up multiple times with its front feet 3 to 4 feet up and swinging its front legs towards the defendant. The defendant was pulling down on the nose chain at the end of the lunge line to bring the horse down. He then said during the rearing, the horse’s head was about 10 or 11 feet in the air. He said the horse reared up and, in his words, was about “to kill her and kick her face off.”
[69] He also said that he saw the defendant “pistol whip” the side of the horse multiple times with the lunge whip. He said he observed the incident for 5 to10 minutes.
[70] The defendant’s evidence is significantly contradictory. By 2010, she had become a very experienced horse woman with considerable training she had received for over 20 years. She had considerable experience in lunge line training courses. She had never experienced any dangerous rearing behaviour from her horse and had not been told of that alleged kind of behaviour by anyone prior to Mr. Belton’s injuries sustained on May 31, 2010. She said she was having a bad personal day including because of stories circulating around the barn regarding her horse and Mr. Belton’s injuries.
[71] She released the horse onto the lunge line and the horse bucked once, i.e., with its rear legs. It did not rear. The defendant admitted she overreacted moving the horse more forward on the lunge line than she normally would have.
[72] The horse reacted after bucking with its hind legs and proceeded to gallop forward on the lunge line as Spencer wanted her to. The defendant was looking for behaviours to discipline the horse given the stories circulating around the boarders in the barn. She did not make any contact with her lunge whip on the horse. She was upset and stopped her training session immediately. There was no rearing of the horse or swinging of its front legs towards her. She believes Peter Hill was some distance away on the driveway watching what had happened.
[73] The evidence of Mr. Hill is neither credible nor reliable. I reject his evidence in its entirety and accept that of the defendant for the following reasons. His evidence is not admissible for any purpose.
[74] Initially in his evidence, Peter Hill stated he was about 80 yards away making his observations when he was speaking with his new neighbour Percy Harcourt. However, it was only after defendant’s counsel obtained accurate measurements during the trial that he was in fact almost two football fields or about 181 yards away that Hill then conceded in cross-examination that significant difference in his distance away. The difference in that distance and his ability to observe anything materially or reliably are crucial.
[75] His own expert Stacie Ryan and the defendant’s expert Wendy Eagle both confirmed that Mr. Hill could not have observed the defendant whipping her horse from that distance as he had said. Ms. Eagle also opined that Peter Hill could not have been able to distinguish a horse rearing or bucking from that distance.
[76] Ms. Eagle also confirmed that had the defendant struck the horse as hard and often as Hill said the defendant did, the horse would have had welts all over its body because of it. There was no evidence at trial from any of the witnesses including the horse’s veterinarians, equine massage therapist, the Beltons or any other boarder that there were any such marks.
[77] Moreover, there was no evidence from any of the boarders, the Beltons or from the defendant’s expert horse trainers that the defendant was anything other than a highly skilled, experienced, very caring and loving horse person who was never seen mistreating her horse at any time before or after this incident.
[78] In addition, Hill’s stating that the horse’s front legs were only 3 or 4 feet off the ground would not likely be consistent with a full vertical rear and would be well below the height of the standing defendant’s face.
[79] Peter Hill stated that the neighbour Percy Harcourt also observed what he did. That witness was not called at trial by the plaintiff to support Peter Hill’s version of what he saw. In this litigation, the defendant has always strongly disputed the evidence of Mr. Hill who clearly was not an independent witness for the plaintiff. No legitimate explanation was given in any of the plaintiff’s evidence as to why Percy Harcourt was not called as a witness by the plaintiff who has the burden of proof to provide this key evidence in issue and who was the best person to do so.
[80] I draw an adverse inference against the plaintiff for failing to call Mr. Harcourt to testify at trial to corroborate Peter Hill’s evidence about what he allegedly saw the defendant do with her horse in the outdoor sand ring two weeks after the plaintiff suffered his injuries. Parris v. Laidley, 2012 ONCA 755; Miller v. Carley, 2009 CanLII 39065 (ON SC), 98 O.R. (3d) 432.
[81] Peter Hill also mislead others when it suited his purposes. He immediately had his girlfriend type a letter but under the names of Mr. and Mrs. Belton to evict Ms. Spencer and her horses at the beginning of August 2010 when he was to take over the stables. He did not want them there when he took over yet tried to suggest that he was doing it this way to be fair to Spencer so she could find another stable. I reject his evidence that he had any concerns for Ms. Spencer. His concerns were only to protect his own interests.
[82] Ms. Spencer never knew it was Mr. Hill who was evicting her rather than the Beltons.
[83] Mr. Hill in 2011 also mislead, as noted below, the Canadian immigration authorities on his having hired full-time and paying Mr. Belton $1,000 a week from August 2010 and in 2011 after he purchased the stables. Mr. Belton was to pay him $800 per month for his apartment rent and $800 per month for each of these two horses to board there.
[84] Mr. Hill stated in court that Mr. Belton did not initially want any money but that Hill would pay him eventually “when it was time”. Hill stated he did not believe this arrangement including not giving him a T4 slip in 2010 was illegal.
[85] Mr. Hill, in his evidence, did not mention anything of his knowledge of Mr. Belton’s immigration status and his inability to legally work for him then without a valid permit.
[86] In addition, after he rehired Mr. Belton again in 2019, Mr. Hill knew he could not legally do so or pay him. He misled his own controller at his place of business that she would expect invoices from Mr. Belton for items he had purchased from him including show jumps and a $60,000 horse that she was to pay. In fact, he had not and the documents were all fraudulent documents created by a scheme of Peter Hill and Mr. Belton to hide the fact from the immigration and income tax authorities that Hill was actually paying Belton illegally for his work for him at the stables.
[87] When the lawyer’s immigration file of Mr. Belton was summonsed and produced at trial after Mr. Hill had given his evidence, it was clear from those documents that Mr. Hill’s trial evidence was misleading with respect to the extent of his actual initial knowledge and involvement with Mr. Belton’s immigration issues and the reasons why his wages weren’t fully documented in 2010 and 2011. Mr. Hill hired the immigration lawyer himself in 2011 and then cooperated with Mr. Belton in a scheme to obtain an immigration work permit for him without disclosing in the application that he had already hired him and was paying him illegally.
[88] Mr. Hill was not called in reply to explain those documents that were produced and why he had initially given that misleading evidence.
[89] He also testified that Mr. Belton was out of the country in England during some of his negotiations to purchase the stables in May 2010. That evidence was false.
[90] Moreover, Mr. Hill’s evidence of the behaviour of the horse on this incident is contrary to the evidence of Edwin Cassidy, the owner of Cedar Lane Stables who boarded the defendant’s horse since July 2010 to the present. He has never seen the horse rear on any occasion during that time other than the horse would only bounce up and down in a minor rear of about 2 feet in the paddock which was of no concern to him. He described the horse as a calm horse which behaved fine on the lead rope when he was turning her in. I accept the evidence of Mr. Cassidy as being factual.
[91] I accept the evidence of the defendant in its entirety with respect to this incident and reject that evidence of Mr. Hill. This similar fact evidence is not reasonably capable of belief and has no probative value and must be excluded in its entirety.
[92] I also reject the evidence of Lisa Searchfield, the real estate agent and acquaintance of Mr. Hill and the plaintiff, who stated that sometime after Mr. Belton suffered his injuries on May 31, 2010, she had a conversation with the defendant. Ms. Searchfield said she was riding her horse in the indoor arena when the defendant came in on her horse. Ms. Searchfield stated she had not really spoken to the defendant before and saw that she was upset. She said she then asked Spencer if she was okay and Spencer allegedly responded that her horse had tried to kick her. This apparently was referring to the same incident that day that Mr. Hill said he saw.
[93] However, it became clear in cross-examination that Ms. Searchfield was not an independent and impartial witness. Rather, she admitted, contrary to what she was initially suggesting, that she had had altercations with the defendant. Her evidence that she was being nice to the defendant when she asked if she was okay does not ring true.
[94] I accept the evidence of the defendant, while in the arena just after returning from the sand ring after the horse’s bucking incident, that it was Ms. Searchfield who suggested to her accusatorily that her horse had kicked her at which point Spencer responded it had not and was not dangerous.
[95] I also accept the defendant’s evidence over that of Ms. Searchfield regarding the subsequent saddle conversation that Ms. Searchfield told her that her days were numbered. Spencer asked her if she was threatening her. Ms. Searchfield had obviously been discussing that matter with Mr. Hill.
[96] I do not accept the evidence of Lisa Searchfield as being either credible or reliable as compared to that of the defendant. It has no probative value.
[97] In addition, the evidence of the veterinarian Dr. Barbour that one year later in May 2011 that she saw the horse semi-rear while on the lunge line is also of no significance or relevance of what actually happened to cause Mr. Belton’s injuries on May 31, 2010.
[98] The plaintiff has not established that the three prior incidents are proximate in time to whatever happened on the May 31, 2010 incident involving the plaintiff or similar in detail to it. There are no distinctive features unifying the three previous incidents and what may have happened on May 31, 2010 when the plaintiff was leading the defendant’s horse back to the barn.
[99] The evidence establishes that the plaintiff had led the defendant’s horse approximately 100 times himself for six months prior to his injuries. All three members of his family had done so approximately 480 times without any suggestion of inappropriate, mischievous or dangerous behaviour of the horse including its tendency to rear at all let alone completely vertical and clawing its front legs toward the handler when it was being led.
[100] Accordingly, the plaintiff has not established on the balance of probabilities that the plaintiff’s injuries on May 31, 2010 were caused by defendant’s horse unexpectantly rearing up on its hind legs vertically and striking the plaintiff’s face with its front legs. That conclusion is no more than speculation. The evidence is equally consistent with the plaintiff falling or tripping for whatever reason while leading the 1,200 pound horse with a 170 pound head including it accidentally knocking the plaintiff over with normal movement and then being struck by its front hooves or while the horse bucked with its rear legs.
DEFENDANT’S LIABILITY IN SCIENTER
[101] The parties accept the applicable principles of scienter in determining the potential liability of the defendant Spencer for the plaintiff’s injuries.
[102] Under the scienter common law doctrine, the keeper of a dangerous or mischievous animal (“ferae naturae” or wild animals) will be held strictly liable for the injuries caused by that animal.
[103] Domesticated animals (“mansuetae naturae”) such as dogs, cows and horses are deemed to be harmless through domestication although they are not necessarily harmless by nature and are known at times to have dangerous or mischievous propensities. The presumption is rebuttable.
[104] Where a domesticated animal, such as a horse, has a dangerous or mischievous propensity that is known to the keeper, the keeper is strictly liable for any injury that is caused by the dangerous or mischievous propensity. There is liability without proof of negligence. Fridman, The Law of Torts in Canada, 3rd ed. at p. 239.
[105] For such an animal, a plaintiff injured by that animal can only attach liability on the owner or keeper if he establishes that:
a) the defendant was the owner of the animal;
b) the animal had manifested a propensity to cause the type of harm occasioned; and
c) the owner knew of that propensity.
Zantingh v. Jerry [2013] O.J. No. 6226 at para. 46; McKinlay v. Zachow 2018 ABQB 365.
[106] The burden of showing a dangerous or mischievous propensity of the animal which caused the injury is on the plaintiff.
[107] It will suffice if the defendant owner knew that the animal had previously committed or attempted to commit a dangerous or mischievous act. However, there must be a connection between the behaviour that caused the harm and the prior dangerous conduct. The behaviour that caused the harm need not be precisely the same as previously dangerous act or acts.
[108] Similarly, the plaintiff does not have to show that the prior behaviour caused the same harm in the past. It may suffice to prove that the defendant knew the animal previously had manifested a trait to do that kind of harm even if it had not caused the kind of harm in the past. Fridman, at pp. 239-240; Zantingh, at para. 24.
[109] In acting the way it did so as to cause the harm in question, the animal must have been acting out of character, with a viciousness or curiosity not natural to its species. Fridman at p. 240; Goddard v. Dunn and Levack Ltd, 1946 CanLII 661 (ON CA), [1947] 1 D.L.R. 710 (Ont. C.A.)
[110] If the domesticated animal is proven to be vicious or to have acted in an uncharacteristic manner, it must be shown that the damage complained of by the plaintiff was caused by its acting in this way. Fridman at p. 240.
[111] The underlying rationale for scienter is that the owner of an animal who knows it to be dangerous or mischievous to humans or other animals or in any other way does so at their peril. The owner has created a dangerous or potentially dangerous situation involving risk to others. Cowles v. Balac, 2005 CanLII 2038 (ON SC), 2005 O.J. No. 229 ONCA at para. 129.
[112] In this case, the plaintiff has not established on a balance of probabilities that the cause of the plaintiff’s injuries was the defendant’s horse unexpectedly rearing up vertically on its hind legs while it was being led by the plaintiff and flailing its front legs causing injuries to the plaintiff’s face.
[113] Moreover, even if the horse had done so, it was also equally consistent because of the horse getting spooked. Nicole Belton stated she thought at the time that the horse must have been spooked and she did not know what else would have happened.
[114] There was no dispute from all the witnesses at this trial including from Nicole Belton and her father that young horses, being unpredictable, could buck or rear unexpectedly after being spooked by all sorts of things. That included trivial things such as a paper bag or leaf flying in the air, thunder or lightning storm before the rain, a human shadow, a squirrel or dog running across, a loud noise or a strong wind. Anne Durnford confirmed it was windy that afternoon.
[115] The defendant Spencer’s evidence was that Nicole Belton had told her after the incident that there was an accident with her father when there was a thunderstorm or a thunderstorm approaching. At trial, Nicole Belton stated there was no thunder or thunderstorm at the time of her father’s injury, but admitted they were bringing the horses in early because of the approaching rainstorm.
[116] Although there may not have been any thunder and lightning right at Cedar Creek Stables at the time of Mr. Belton suffering his injuries according to some of the witnesses at trial, there was evidence from the plaintiff’s meteorological expert Mr. Mawson, which I accept, that there was thunder and lightning because of an approaching thunderstorm within a few kilometres of Cedar Creek Stables around 4:24 p.m. when the plaintiff was injured.
[117] Nicole Belton and her father also knew that horses, and in particular younger horses, could unexpectedly rear up when they were being handled because of their unpredictability resulting in a risk of injury to the handler, which risk was part of their job in handling the horses including May.
[118] Even if the plaintiff’s evidence does establish the plaintiff was injured in that fashion, his action fails on the scienter doctrine as the evidence does not prove that the horse previously manifested a propensity to cause the type of harm occasioned and the defendant knew of that propensity.
[119] There is a clear distinction of what the horse demonstrated as rearing prior to May 31, 2010 compared to what the plaintiff alleges happened that day.
[120] The half or hop rear of approximately 2 feet described by the defendant Spencer while riding the horse in the arena or what Nicole Belton saw there was of no significance. It was a playful half rear and nothing big or dangerous. It was immediately corrected by Spencer using the riding crop.
[121] The first rearing incident described by Anne Durnford while the defendant Spencer was lunge line training the horse in the arena was also of no significance indicating a dangerous or mischievous propensity to rear by the defendant’s horse.
[122] The second rearing incident described by Anne Durnford, again while the defendant Spencer was lunge line training the horse, was not untypical behaviour of a young horse being trained on a lunge line. I accept the expert opinion evidence of the defendant’s equine behaviour expert Wendy Eagle and that of the horse’s actual trainer expert Heather Manbert over the opinion of plaintiff’s expert Stacie Ryan. My reasons are noted below.
[123] Both Ms. Eagle and Ms. Manbert confirmed that if that incident happened, it was only normal behaviour of the young horse that would not be unexpected when it was being lunge line trained. Ms. Manbert confirmed that the horse rearing up or bucking is common and what horses do which would not be a concern. There was nothing in May’s behaviour that that act of rearing, if it did happen during lunge line training when the defendant was about 25 feet away, indicated any dangerous or mischievous propensity that could cause a risk of harm to the owner or handler of the horse while simply leading it on a short lead rope.
[124] What is most significant as indicated above is that all the witnesses at trial including the plaintiff and his family, confirmed that the defendant’s horse was a very sweet, well mannered Warmblood horse. It showed no propensities at all of being a danger because of a tendency to rear or otherwise when it was being led in and out of the barn on the approximate 480 times the Beltons had done so from October 1, 2009 to May 31, 2010.
[125] The evidence is also clear that the Beltons, and in particular the plaintiff, was aware of this alleged propensity of the defendant’s horse to rear up a little which, like Anne Durnford concluded, was not a concern.
[126] I have some concerns with the reliability of the evidence of Anne Durnford regarding what she said she saw. She saw no reason to report what she had seen to the Beltons who she knew well and did not do so the entire time she was at Cedar Creek and at other stables with Mr. Belton. It was not a significant or a major issue to the extent that she thought she should do so. She only revealed this information to plaintiff’s counsel after this trial had commenced in October 2020.
[127] The reasonable inference from her evidence is that whatever Anne Durnford saw of these two incidents, they did not show any kind of dangerous or mischievous propensity of the horse to fully rear up and flail its front legs while in close proximity to the handler including while it was being led on a short lead rope or chain.
[128] The plaintiff submits that the defendant knew that her horse’s rearing could be dangerous and admitted this at trial. However, in examining the context of that evidence, it was clear that the defendant Spencer was referring to a horse rearing on its hind legs in a vertical fashion perhaps with its front feet failing at the handler as compared to the minor rear she experienced when she was riding her horse described above. She denied that this had ever happened prior to the incident and in particular denied that the incidents alleged by Anne Durnford had occurred while she was lunge training the horse.
[129] Furthermore, if these incidents described by Ms. Durnford happened five or six months prior to May 31, 2010, the plaintiff, being a professional horseman, trainer and handler of the horse on the day in question, knew that the young horse could hop rear playfully. He never experienced any such behaviour in that entire timeframe suggesting the horse could demonstrate a dangerous or mischievous propensity to completely vertically rear on its hind legs and flail its front legs towards the handler of the horse while in close proximity to it.
[130] Even if I had accepted the evidence of Mr. Hill and ruled it to be admissible, that evidence along with the evidence of the veterinarian Dr. Barbour who saw the horse half rearing on a lunge line one year later in May 2011would not constitute any evidence of knowledge of the plaintiff of this propensity on May 31, 2010. Fridman, p. 241; Wilmot v. Vanvart (1877), 1877 CanLII 72 (NB SC), 17 N.B.R. 456 (C.A.).
[131] Furthermore, possession or control of the animal is the test of responsibility. The plaintiff was in possession and control of the defendant’s horse that day under his boarding agreement obligations.
[132] If a harmful animal is not in the possession or control of its owner and at the material time is under control of someone else, the defendant owner cannot be held liable under the scienter doctrine although there might be alternative liability, for example, by negligence if the defendant had not taken reasonable care to prevent injury from being caused by the animal even though it was under another party’s control or someone else’s possession. Fridman at p. 242.
[133] In this case, the plaintiff was a professional horseman, expert handler and horse trainer in the business of boarding the defendant’s horse. He was obligated to provide for its daily care, feeding and handling including twice daily walking it. He was being paid by the defendant to handle and bring her horse from the outdoor paddocks into the barn. As the plaintiff considered himself to have more expertise with the horse than the defendant, he should have been able to anticipate if anything would have spooked the defendant’s horse. It was part of his job when handling horses to understand the individual horses’ personality, their traits and how they might spook in various situations.
[134] It was the plaintiff’s responsibility to keep the horse under control on the day of the incident, not the defendant who was not even there. Morris v. Bailey, 1970 CanLII 347 (ON CA), [1970] 3 O.R. 386 (C.A.).
[135] The plaintiff’s action against the defendant for liability based on the scienter principles fails.
DEFENDANT’S LIABILITY IN NEGLIGENCE
[136] The plaintiff’s claim for damages against the defendant is also based on her alleged negligence.
[137] The plaintiff is required to establish that the defendant owed him a duty of care, that the defendant’s behaviour breached the standard of care, that he sustained damage and that the defendant’s breach caused the plaintiff’s harm in fact and law. Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 3.
[138] In order to succeed, the plaintiff must prove both a breach of the standard of care as well as causation on a balance of probabilities. The plaintiff must prove that but for the defendant’s breach of the standard of care, the injury would not have occurred. It is not sufficient for the court to infer causation or to draw an inference based on common sense; the onus is on the plaintiff to lead evidence to demonstrate that the defendant’s negligent conduct caused the injury. Clements v. Clements, 2012 SCC 32; Fowlow v. Southlake Regional Health Centre, 2014 ONCA 193; Tahir v. Mitoff, 2019 ONSC 7298 at para. 41.
[139] Both parties agree that to establish liability for animals in negligence, special circumstances must exist. The owner of an animal cannot be negligent if the animal acts in an unexpected way and injures someone. There must be foreseeability of harm and unreasonable conduct. Put another way, it must be found that the owner of the particular animal, with its particular characteristics, and in particular circumstances, could have reasonably foreseen the danger that could result in damage. Wilk v. Arbour, 2017 ONCA 21 at para 39-40.
[140] The court in Wilk quoted with approval the following excerpt from the decision of Bates (Guardian of) v. Horkoff, 1991 CanLII 5958 (AB KB), [1991] 119 A.R. 270 (Q.B.):
“…first, that where no such special circumstances exist, negligence cannot be established merely by proof that a defendant has failed to provide against the possibility that a tame animal of mild disposition will do some dangerous act contrary to its ordinary nature, and, secondly, that even if a defendant’s omission to control or secure an animal is negligent, nothing done by the animal which is contrary to its ordinary nature can be regarded, in the absence of special circumstances, as being directly caused by such negligence.”
[141] With respect to foreseeability, it is enough to fix liability if the defendant could foresee in a general way the sort of thing that happened. The extent of the damage and its manner of incidence need not be foreseeable if physical damage of the kind which in fact ensues is foreseeable. The precise circumstances leading up to the accident need not be foreseeable provided that the general harm is reasonably foreseeable. Wilk v. Arbour, at para. 42-43.
DEFENDANT’S FAILURE TO WARN
[142] The plaintiff’s main submission is that the defendant failed to warn the plaintiff when under a duty to do so of the three prior incidents of the horse rearing as described by Anne Durnford and the defendant.
[143] I disagree.
[144] Both Nicole Belton and the plaintiff were in fact aware of the defendant’s horse on one or two occasions prior to the incident of May 31, 2010 hop or half rearing about 2 feet which was not a concern at all.
[145] The first incident described by Anne Durnford was not anything significantly different. She saw no reason to tell the Beltons about it. The expert witnesses, Stacie Ryan for the plaintiff and Wendy Eagle for the defendant, agreed that this was not a significant incident.
[146] The plaintiff states that the second incident observed by Anne Durnford indicated a dangerous or mischievous propensity of the defendant’s horse to fully and completely rear on its hind legs such that defendant should have warned the plaintiff.
[147] I have already expressed my concerns with respect to the reliability of Ms. Durnford’s evidence and prefer the evidence of the defendant that she never experienced nor was aware of that kind of behaviour before while lunging her horse.
[148] Even if she had been, there was no evidence from Anne Durnford that the horse was flailing its front legs towards the plaintiff when it did posing a danger to the defendant who was 25 to 30 feet away on the lunge line.
[149] I accept the evidence of the numerous witnesses at trial that there is a significant difference in a young horse being trained on a lunge line which may result in the horse rearing up and which would not be unexpected as compared to the obvious danger of a horse rearing up to full height and flailing its front legs when being led by the handler on a short lead rope or chain.
[150] That latter type of incident never took place before May 31, 2010 including the approximate 100 times that the plaintiff handled the horse turning it in and out of the barn and the approximate 480 times that all three members of the Belton family did so from October 1, 2009 to May 31, 2010.
[151] I accept the expert evidence of Wendy Eagle and Heather Manbert over that of the plaintiff’s expert Stacie Ryan that there was no obligation on the part of the defendant to warn the plaintiff who was the expert horseman and handler that the defendant’s horse had reared about two feet on one or two occasions and had once reared up on a lunge line during training.
[152] Although both experts Stacie Ryan and Wendy Eagle in giving their evidence in court for the first time improperly commented on the credibility of the parties thus impacting on their impartiality, Stacie Ryan was more egregious in that regard than Wendy Eagle.
[153] Furthermore, the defendant’s expert Wendy Eagle had no prior involvement with or knowledge of either party. She actually attended to examine and assess the horse’s behaviour, albeit a number of years after the incident which she found very beneficial in her overall assessment before forming her opinion and coming to her conclusions.
[154] She found that May was a very pleasant, attentive and well-mannered horse. It was not hyper or reactive, it responded to her commands and had a very tight bond and good relationship with the defendant Spencer. She used a technique to specifically try to invoke a reaction in the horse indicating any prior memories of mistreatment but did not find any.
[155] Stacie Ryan did not examine or assess May and admitted she did not know the personality of the horse.
[156] Ms. Ryan also based her opinion to a significant extent on the evidence of Peter Hill and Lisa Searchfield and what they observed two weeks after the incident, which evidence I found not credible, reliable or admissible. In addition, in her first report, Ms. Ryan had assumed that Mr. Hill and Ms. Searchfield had made these observations before, not after, the incident that caused Mr. Belton’s injuries.
[157] She had also initially relied on the pretrial statement of another witness Elizabeth Rhodes suggesting she had seen the defendant hit the horse with the lunge whip around mid-shoulder and thought it referred to it happening prior to not after Mr. Belton’s injuries. At trial, Ms. Rhodes denied that earlier statement and did not adopt it as being true.
[158] When Ms. Ryan was told by defendant’s counsel that all these alleged incidents actually happened after Mr. Belton’s injuries and not before as she had assumed in her first report, she nevertheless still tried to justify her conclusion relying on that evidence from those three witnesses stating that “the leopard does not change its spots” and that she was sure the defendant was using those improper techniques before the incident too.
[159] Wendy Eagle opined that whatever happened after May 31, 2010 had no bearing on that incident and in particular, because it happened during the lunging of the horse.
[160] Furthermore, for many years earlier Ms. Ryan had been a close friend of the plaintiff’s present spouse Ms. Hinrichs when they were riding horses together at the same stable and going to all the same competitions. They had dinner together and a tour of Ms. Hinrichs’ stable in June 2018 just before being taken to a meeting with the plaintiff’s previous lawyer (not either counsel at this trial). Ms. Ryan and Ms. Hinrichs had dinner together as friends in 2019 after she had provided her report.
[161] Wendy Eagle has had formal university training and education in equine behaviour at the University of Guelph and in fact taught the course for five years to numerous other students after that. She provided workshops and seminars training others outside the university setting. Her formal education and expertise in recognized equine behaviour concepts and theories in the literature were well evident while she gave her evidence. Her expertise allowed her to assess horses for their behaviour caused by physical or other issues and then how to deal with them.
[162] Ms. Eagle has also been a private instructor having taught approximately 200 students training them and their horses since 2010. She has taught approximately 140 students as to how to properly lunge train their horses.
[163] Stacie Ryan’s expertise was based on her having over 50 years experience in riding, training with top trainers in the world and competing in the show ring until retiring in 2006. She has operated her own horse training business in California since 2005 and has also trained many riders over the years. She has regularly participated as a hunter and equitation judge throughout the United States.
[164] Her expertise before this trial was as an equine appraiser and she had not given expert evidence in a case like this before. She has had no formal education or schooling with respect to equine behaviour, including regarding horses’ medical health such as PTSD.
[165] She conceded that her “Black Spot Theory” of horse behaviour is only something she learned from her own former well-known riding instructor and fellow show jumper. She named the theory herself. She admitted that there are no scientific studies, equine behaviour literature or articles by experts or even Google search articles on this theory that a horse never forgets being mistreated even once during its training sessions which leaves a scar or “black spot” on its blank canvas.
[166] Ms. Ryan stated that despite doing amazing training sessions and wonderful things with the horse after the mistreatment including competing, that “black spot” is still on the canvas and will always be there for the rest of the horse’s career even if you cannot see it. Sometimes it can show once, never show again, or show 50 times. The horse can misbehave because of that black spot unexpectantly for no reason at any time in the future. She suggested that a horse could behave absolutely perfectly 99.99999 percent of the time, but one millionth percent not act appropriately.
[167] I do not accept that opinion evidence and theory. It is contrary to the actual evidence in this case from the witnesses as indicated above that at no time before or after May 31, 2010 to the present did the defendant’s well-mannered and calm horse exhibit any dangerous or mischievous propensity including to suddenly and unexpectedly fully rear up or fully rear up and flail its front legs towards her handler while in close proximity to it.
[168] I accept the evidence of Wendy Eagle that the first incident described by Anne Durnford of the horse rearing up somewhat was of no significance or danger to the defendant Spencer. The horse bouncing on its hind feet a couple of times was not a precursor to the horse rearing up which are two different actions. The two incidents were weeks apart and there was no correlation between the second one and the first one. There was no striking out with its front feet which would indicate signs of aggression towards the handler.
[169] Ms. Eagle confirmed that the second incident of the horse rearing up while on a lunge line was conduct she often sees during training sessions on a lunge line. It could indicate the horse simply no longer wanted any further training session, was in discomfort or some miscommunication between the horse and the handler with the horse not understanding what the handler wanted. She was clear in her evidence that whatever Ms. Durnford saw, it was just a regular training session for a young horse and nothing of a concern to suggest it would take place after the training session.
[170] Stacie Ryan admitted that most horses can be turned around with proper training and in particular for May which was a young enough horse. The evidence at trial though, as noted below, was clear that the defendant properly trained the horse. Ms. Ryan’s opinion that before the incident the defendant did not properly train the horse is inconsistent with her suggestion that another rearing incident with the horse did not happen since because the defendant’s proper training after may have turned the horse around.
[171] The evidence of Wendy Eagle makes common sense and is also essentially confirmed by the evidence of Heather Manbert, also a well-recognized expert in equine behaviour who personally trained the defendant and the horse for number of years before and after this incident and who was obviously very familiar with its behaviour.
[172] I find on the evidence before me that the defendant had no obligation to warn John Belton or Cedar Creek Stables of these prior incidents of the horse half rearing. The horse was a well-mannered and sweet Warmblood horse. Anne Durnford saw no reason to warn the plaintiff as she had no concerns of what she had seen.
[173] Moreover, the evidence of both the plaintiff’s expert Stacie Ryan and the defendant’s expert Wendy Eagle was that horses will always give physical warning signs of their intention to misbehave.
[174] There would be multiple physical warnings when something was going on with horses including their eyes changing, head and neck raising, body stiffening, nostrils flaring and ears being pricked forward according to Stacie Ryan.
[175] Wendy Eagle confirmed that similarly describing the signs that a horse will exhibit prior to acting out because of fear, aggression or excitement. It was significant to Wendy Eagle that there were no such signs displayed by the horse on the second rearing incident observed by Anne Durnford confirming there was no danger to the defendant at the time. Significantly, Stacie Ryan gave no evidence to suggest the horse had acted that way and displayed those warning signs on that occasion.
[176] Accordingly, because of the plaintiff’s own professional expertise and experience in handling horses, he likely would or should have noticed that happening if it did while he was leading it back to the barn even without being warned of any prior dangerous or mischievous propensity of the horse.
[177] Even if there was a duty to warn the plaintiff, the plaintiff has not established on a balance of probabilities that any alleged breach was the cause of the plaintiff’s injuries.
[178] The plaintiff also gave no evidence of any significance at trial as to what he likely could or would have done differently in handling the horse on May 31, 2010 other than what he had done on the prior 100 occasions even had he been so warned. There is no significant evidence that I accept at trial to suggest that had he been warned, he would likely have been able to avoid the injuries he actually sustained.
NEGLIGENT TRAINING BY THE DEFENDANT
[179] The plaintiff alleges that the defendant was negligent in the way she trained her horse on the lunge line stating that on prior occasions she had used the lunge line and whip improperly. He submits that that her improper training could explain why the horse reared up on the day in question. The horse could have misinterpreted an inadvertent move of the plaintiff’s hand that resembled the defendant’s whipping arm action, saw it as a threatening move from her lunging experience and reared up to defend herself.
[180] The evidence again on this issue was that of the defendant with respect to the cooler rearing incident and Anne Durnford who stated that on the second training incident with the lunge line, she saw the defendant using the lunge whip, in her words, “aggressively” towards the top of the horse’s high quarters instead of at the hocks.
[181] I accept the evidence of Wendy Eagle over that of Stacie Ryan that the technique used by the defendant of immediately tapping the horse with her riding crop when it started to rear when she was riding it to reinforce her leg movement was proper. Ms. Eagle was clear that the rider absolutely should not wait to use it until after the horse came down on its feet. The horse must be smacked immediately so it understands it is being reprimanded for attempting to rear up and not go up any further which is exactly what the defendant did.
[182] She confirmed that the rider would have no difficulty holding on to the reins while instantaneously using the riding crop while the horse was in the act of rearing with the expectation being that the horse would probably go down and go forward. The horse would learn from that and not likely go higher in rearing when struck with the riding crop.
[183] Ms. Eagle strongly disagreed with the opinion of Stacie Ryan that when the horse started to rear, the rider would want to turn the horse in a tight circle to go forward and should not strike the horse with the crop until it was back on the ground. Ms. Eagle’s opinion was that if that was done, it could cause the horse to lose its balance and she would not risk that by trying to have the horse turned when it was in the air. The time to apply the crop was when the horse was in the air so it could associate that if it did so, it would be required to move forward and stop the rearing.
[184] That evidence in my view makes common sense.
[185] Stacie Ryan believed that the lunge whip was being used by the defendant above the horse’s shoulder. She stated that having the lunge whip landing on the shoulder forward would be teaching the horse how to rear like a circus horse. However, there was no admissible evidence from any of the witnesses, including Durnford, that the defendant ever did that.
[186] Although the plaintiff’s expert Stacie Ryan suggested that using the lunge whip to a height on top of the hindquarters above the hocks was too high, I accept the evidence of Wendy Eagle over hers that it was acceptable to raise it so that the horse could see it.
[187] Furthermore, as indicated above, all the other evidence at trial from the witnesses confirmed that the defendant was properly trained in lunging her horse and used the proper techniques to do so without any abusive treatment of her horse. The plaintiff’s evidence was that he saw no signs, heard or was aware of the defendant Spencer mistreating or abusing her horse at any time prior to May 31, 2010 even though he observed her there usually three or four times per week.
[188] Wendy Eagle confirmed that there are different training techniques and approaches that can be used on horses to achieve the same goal or result which depend on the individual horse’s needs and personality. One technique may not work in every training situation.
[189] Ms. Eagle also confirmed that the defendant’s use of the lunge whip and training methods were appropriate in each of the pre-accident observations of Anne Durnford. She concluded that the horse’s alleged behaviours prior to the accident were not aggressive or concerning horse behaviours and were not indicative of having a propensity to rear while being led.
[190] She also concluded that there was no progression or correlation between the horse’s behaviour in the cooler incident, the bouncing incident and the last higher rear incident. These were all natural horse responses to training.
[191] Ms. Eagle’s evidence is that the horse was not exhibiting any signs of fear or aggression in either of the circumstances observed by Anne Durnford. Apart from the second rear being higher than the first, there was no sign of the horse striking out with its front feet, no facial expressions such as its ears back, eyes rolling, taught muzzle, teeth bared, neck stretching or snaking which would indicate the horse was displaying aggression or fear.
[192] I do not accept the opinion evidence of Stacie Ryan to the contrary on those issues when she stated that the defendant’s training techniques were “abusive, unconventional, harsh, uneducated and aggressive” which taught or caused the horse to become fearful and the rearing in the second incident observed by Ms. Durnford. In cross-examination, Ms. Ryan retracted her opinion that the defendant’s training was abusive and then stated that her training techniques were unconventional at best and were not proper.
[193] I accept instead the evidence of Wendy Eagle including for the reasons below that there was nothing the defendant did or did not do in her training to cause or contribute to the plaintiff’s incident of May 31, 2010 which resulted in his injuries.
[194] The plaintiff’s suggestion that this alleged fear of the lunge whip by the horse could possibly explain why it reared on the date in question is nothing more than speculation and conjecture.
[195] Moreover, the opinion evidence of Stacie Ryan that the horse could possibly have misinterpreted an inadvertent move of the plaintiff’s hand when it was being led that resembled the whipping arm action of the defendant, including by his wiping the sweat off his face, adjusting his hat, glasses or jacket, or swatting a bee or fly has no basis in the evidence and is also conjecture and speculation.
[196] That expert evidence of Wendy Eagle is also confirmed by other witnesses at the trial.
[197] Heather Mason, the original trainer of the horse before it was purchased by the defendant, was a qualified participant expert on equine training and behaviour with respect to the horse. I accept her evidence that the lunge whip can be used above or as firmly in contact with the horse’s hind end as it needs to invoke the desired response based on the horse’s needs. She herself would occasionally have to waive the whip above the horse’s back at times and in actual contact with the horse because it was not a forward moving horse.
[198] The original owner of the horse Joanne Dietrich confirmed that it is common for young horses to stop and turn in towards the trainer when being lunged. The correct response is to flick the whip towards the horse to send it back on to the circle.
[199] Heather Manbert, whose evidence I also accept, also opined that if a horse stops on a lunge line, the correct behaviour for the handler is to keep the horse going and moving forward with the lunge whip.
[200] Ms. Manbert’s evidence was clear that she had no concerns regarding the defendant’s training in lunging her horse which she had observed. She never saw any abuse or mistreatment of the horse by the defendant and she said that Spencer and her horse was a good match.
[201] The plaintiff himself admitted that horses do occasionally stop and turn in towards the handler while being lunged and to keep the horse from coming in towards the trainer, one would point the lunge whip towards the horse’s shoulder. He admitted everyone was different with respect to lunging techniques.
[202] The plaintiff has failed to establish any negligence in the training methods used by the defendant on her horse which caused or contributed to the plaintiff’s injuries on May 31, 2010.
[203] The plaintiff’s action against the defendant is dismissed.
PLAINTIFF’S VOLUNTARY ASSUMPTION OF THE RISK
[204] Accordingly, it is not necessary to consider whether the plaintiff’s action is also barred because of his voluntary assumption of the risk involved with his handling of the defendant’s horse on May 31, 2010.
[205] For the sake of completeness, given the above findings, the plaintiff in my view did accept not only the physical risks of injury to himself when handling and walking all of the horses in the Cedar Creek Stables including the defendant’s horse, he also accepted the legal risk of handling that horse. This finding applies to both issues of scienter and negligence.
[206] In this case, the plaintiff concedes that he understood the risks of boarding, handling and grooming of horses for which he was being paid could be dangerous. He admitted the defendant’s horse was one of the youngest boarded at his stables and that younger horses can be more unpredictable than older, more mature horses. He admitted he always had to watch out to anticipate while not knowing what could happen when handling the horse.
[207] He admitted that something that might cause a horse to react one day might not cause the horse to react the next day. He admitted that horses could react to and be spooked by just about anything including a leaf flying in front of it, a paper bag in his way or flying across, a human shadow, a dog running around the corner or its simply hearing a noise. He admitted horses have very fine hearing and can be spooked and agitated by thunder and lightning, or wind causing them to rear up. He knew lightning and thunder could occur 30 minutes before it started to rain.
[208] He admitted that as an expert horseman he could anticipate that situation when he was handling the horse. He had had the experience of having horses half rear up on several occasions before May 31, 2010 when he was handling them with the lead rope and brought them back down and controlled the horse.
[209] All of the witnesses at trial, including the plaintiff, admitted accidents causing significant injuries to the handler or rider can happen with horses because of their unpredictability. In the words of Stacie Ryan, horses are predictably unpredictable.
[210] A number of the witnesses at trial confirmed that they had suffered significant injuries caused by horses that were part and parcel of the horse world. They include concussions, kicks, bites, being struck and broken bones and falling off horses. Stacie Ryan admitted that, “We’ve all been kicked by horses.” She witnessed or had been involved in over 1,000 accidents resulting in injuries around horses. She admitted that people get stepped on and accidents happen all the time including every day that are not always someone’s fault.
[211] Mr. Belton confirmed in the past he also had suffered serious injuries while riding or handling horses including breaking his nose and collarbone and twisting his ankle.
[212] He admitted that if the horse was going to react when he was handling it, it was not a worry as he always paid attention and was not distracted. He could read the mind of the horse to anticipate what could happen and maintain control of the horse because he was holding on to the lead rope.
[213] The plaintiff’s own daughter Nicole Belton acknowledged that she took the risk she might get injured every time she handled the horses and that she assumed and accepted that risk every time that she did so at Cedar Creek Stables as part of her job.
[214] She also agreed in cross-examination that her father knew there could be a risk that he could get hurt when he handled a horse and that he assumed and accepted that risk just like she did every time he handled a horse at Cedar Creek stables for clients.
PLAINTIFF’S CONTRIBUTORY NEGLIGENCE
[215] It is also not necessary to consider whether and to what extent the plaintiff’s own negligence caused or contributed to his injuries incurred on May 31, 2010.
[216] Again for the sake of completeness, the defendant has not established on a balance of probabilities the plaintiff’s contributory negligence by not using a lead rope or not paying sufficient attention when he was leading the horse back to the barn just before he was injured.
[217] The plaintiff’s clear evidence was that he was using a lead rope on the horse at the time as he always had done. Lead ropes were on the gates to the paddocks including the one where May was.
[218] The evidence of both Nicole Belton and Kay Belton was that they could not recall if the horse had a lead rope still attached to it when Nicole shut the gate and Kay Belton later led the horse back to the barn.
[219] Their lack of memory on that issue given the shock of what had just happened to their father and spouse is understandable.
[220] A lead rope is easily attachable to the halter and would make the walk back to the barn of 200 to 300 feet easier than not. There was no shortage of lead ropes as they were readily available throughout the barn and on the gates.
[221] The lead rope could have become detached from the horse if it had stepped on it after the incident on its way back to the paddock.
[222] There were no injuries to Mr. Belton’s fingers, hand, arm or shoulder which one might expect if he had been holding on to the horse’s halter with his hand and not been using the lead rope when the horse reared.
[223] The witnesses Anne Durnford, Nicole Belton, Kay Belton and Tracy Mitchell also testified that they had never seen the plaintiff before the incident not use one.
[224] Although some of the defendant’s witnesses suggest that the plaintiff on occasion, before and after this incident, may not have always used a lead rope in turning the horse in and out of the barn, prior negligence of a party is generally irrelevant to proof of subsequent negligence. Wilson v. Lind, [1985] O.J. No. 535.
[225] Subsequent negligence is also irrelevant to the proof of prior negligence. Woods v. Jackiewicz et al., 2013 ONSC 519.
[226] There is no evidence of any significance that the plaintiff was not paying proper attention to what he was doing when he was leading the horse back to the barn.
[227] The defendant has not established on a balance of probabilities that there was any negligence on the part of the plaintiff that caused or contributed to his own injuries sustained by May 31, 2010.
BOARDING AGREEMENT
[228] It is not necessary to consider the legal effect of the terms of the boarding agreement on the rights of the parties in this case including whether the terms applied to one particular party only or both.
[229] For example, the boarding agreement states the obvious that horseback riding, handling and grooming of horses and other stable activities can be dangerous. No doubt both the plaintiff and defendant knew that throughout. The same applies to the other term that “I accept and assume all risk of injury including death to me or my property” on the last page of the boarding agreement.
[230] In my view, whether the agreement and these terms applied to one or both parties is not relevant at this stage given my findings of facts and the dismissal of the plaintiff’s action. I need not make any finding in that regard and I decline to do so.
ASSESSMENT OF PLAINTIFF’S DAMAGES
[231] Although the plaintiff’s action is dismissed, I provide the following assessment of his damages.
GENERAL DAMAGES
[232] Dr. Avram, the plaintiff’s plastic surgeon confirmed that the plaintiff had sustained multiple fractures to the right side of his face. They included a comminuted blowout fracture to his right eye socket, fractures to the right cheekbone area, bilateral nasal bone fractures, and a frontal sinus fracture.
[233] He also sustained herniation of the muscles around that eye and hemorrhaging around the optic nerve head. He suffered two significant lacerations around his right eye, one that ran horizontally across the upper eyelid to the inside corner of the eye and down along the side of his nose and the other that ran along the lower eyelid.
[234] His right side was markedly swollen shut. Muscle entrapment around his eye was evident because the right eyeball was not moving as smoothly as it should have been.
[235] His lacerations were surgically repaired with sutures and the plaintiff was in considerable pain requiring his use of morphine medication.
[236] Because of the presence of blood in the anterior chamber of the eye at the front of the iris, Dr. Avram put off surgical intervention to repair the plaintiff’s facial fractures until ophthalmology had cleared him for surgery.
[237] The plaintiff remained in hospital until June 4 and returned for his reconstructive surgery on June 14, 2010.
[238] At that time, Dr. Avram reconstructed the plaintiff’s right orbital floor, cheek, jaw and nose by reducing the fractures and installing titanium mesh, plates and screws. He was discharged from hospital the next day.
[239] The plaintiff’s right side of his face and head was swollen for a number of weeks initially rendering him unable to see out of his right eye. The plaintiff experienced issues with double vision.
[240] The plaintiff’s optometrist Dr. Eves, in November 2012, diagnosed that the plaintiff had suffered damage to his optic nerve and had a long-standing right visual field defect. The whole upper right field of the plaintiff’s right eye was suppressed just above the midline as well as a large part in the lower temporal quadrant.
[241] The plaintiff continued to suffer with double vision and ocular motility, but the decision was made in consultation with Dr. Sabri not to proceed with further surgical intervention as it would cause the plaintiff more problems.
[242] Dr. Eves confirmed that the plaintiff’s eyes were seeing straight and he had full and free movement. He did not need corrective lenses for reading or seeing distances.
[243] Dr. Mark Mandelcorn, the ophthalmologist originally retained by the defendant to conduct an independent medical examination of the plaintiff in October 2018, provided his expert opinion evidence for the plaintiff.
[244] Dr. Mandelcorn confirmed that the plaintiff was continuing to complain of double vision, observing one object higher than the other and a little bit to the right-hand side and the loss of visual field.
[245] The vertical double vision was caused by the injury because of the fractures damaging the inferior rectus muscle.
[246] Dr. Mandelcorn confirmed that the plaintiff has lost the ability in his right eye to see everything above the horizontal axis upwards and to the right which was a 50 percent loss of his vision. He had suffered optic nerve damage.
[247] Dr. Mandelcorn confirmed that the plaintiff’s condition is not expected to improve and is a permanent impairment. His double vision condition cannot be repaired surgically nor by inserting a prism as it would cause other visual problems.
[248] As a result, Dr. Mandelcorn confirmed that the plaintiff does not have the required vision now to maintain his licence to operate a transport trailer in Ontario because of the regulation requirements and is disabled from working in that capacity. The plaintiff, however, can drive a motor vehicle with a general licence and continues to ride horses.
[249] Dr. Mandelcorn confirmed, based on the severity of the fractures, that the plaintiff was likely struck by a powerful force to the side of his head. Although the medical documents stated the plaintiff was struck by a horse’s hoof, the best he could say was that the injury was caused by something.
[250] The plaintiff states he still has shooting pain from his upper mid lip area and across the right side of his face into his upper right forehead. He presently takes extra strength pain medication daily for his pain and headaches. He has difficulty with depth perception and has to look down when he notices his double vision. His vision affects his ability to read as he gets headaches which requires him to lie down.
[251] His ability to blink in his right eye is significantly diminished and he uses eyedrops regularly during the daytime as a lubricant and eye cream in the evening for the same purpose.
[252] The plaintiff has some residual scarring as a result of his eyelid and nose area lacerations and his right eye appears somewhat sunken and set back.
[253] He complains of issues with his memory but there is no medical evidence confirming he suffered any significant brain injury.
[254] He was able to return in 2010 to his horse stabling, farming and training activities working full time for Peter Hill and others since. He has also been able to return to riding horses in numerous competitions on a regular basis since then.
[255] I have considered the authorities submitted by both parties on the issue of the assessment of the plaintiff’s general damages based on other cases although no two cases on the facts are identical.
[256] I assess the plaintiff’s general damages in the amount of $135,000.
INCOME LOSS
[257] The plaintiff’s position is that he has suffered a past and future income loss or loss of income earning capacity because of his inability to return to work as a transport truck driver on a full-time basis because of his injuries and in particular because of the loss of some of the eyesight in his right eye. He states, as noted by Dr. Mandelcorn, that he has not and will not be able to pass the required visual eye test to be able to obtain and maintain an AZ commercial licence required in Ontario for that purpose.
PAST INCOME LOSS
[258] The plaintiff’s evidence at trial was that he was initially planning on returning to England after the closing of the Cedar Creek Stables sale to Mr. Hill in August 2010 and work there as a truck driver as he had been doing prior to his arriving in Canada in 2008.
[259] Although that may have been the case when the property was initially put up for sale, the situation changed as noted by his own evidence. After the sale agreement was signed on May 14, 2010 but prior to his suffering his injuries on May 31, 2010, he was asked by Mr. Hill and had agreed to work full-time for Mr. Hill after the deal closed doing the same kind of horse stable work for which he was going to be paid $1,000 per week.
[260] I accept the evidence of Mr. Belton and his daughter Nicole that it was Mr. Hill who wanted and in fact hired Mr. Belton as a full-time barn manager prior to May 31, 2010 so that Mr. Belton could continue the business for Peter Hill. Mr. Belton did not ask for the job but clearly jumped at the opportunity offered to him and accepted it.
[261] There was no evidence from Mr. Belton that he was told that the work for Peter Hill at Cedar Creek stables was only meant to be temporary for a few months. I reject the evidence of Mr. Hill suggesting otherwise.
[262] The evidence at trial was clear from the plaintiff, his family and other witnesses that Mr. Belton was a horseman whose dream was to come to Canada to acquire and operate a horse stable operation allowing their daughter to compete at the Grand Prix level of horse jumping competition and become a trainer while supporting the farm.
[263] The plaintiff continued to work for Mr. Hill until February 2014 in that line of work and then he worked for Bronte Creek stables until October 2014. Judith Bisiker there confirmed that all the plaintiff wanted to do was be around horses as he was a horse person through and through. His passion was clearly being a horseman.
[264] Although the plaintiff testified that he had worked as a transport truck operator while living in the UK which took him across Europe, he was also living and working on his horse farm at the time with his family as a horse trainer. In his own resume, he stated he was involved in his own very profitable business of buying and selling of horses which he sold when he came to Canada. His resume makes passing reference to his having an HGV licence which presumably is for driving a truck in the UK.
[265] He provided no other details of his working as a truck driver before coming to Canada in 2008. In particular, he did not say that he worked full-time as a truck driver as compared to working seasonally or part-time. He provided no evidence as to what kind of annual income he actually earned over the years he did work in the UK as a truck driver.
[266] In particular, he provided no evidence of his income tax returns or financial statements or from his former employer or employers for whom he worked as a truck driver there regarding the annual income he earned over those years.
[267] He called no evidence from his former employers regarding the work he did or whether they would likely have hired him back at some time after his injuries suffered in May 2010 and that he wanted truck driving work there.
[268] The plaintiff’s only other evidence of his potentially working as a truck driver in the UK was provided from Geraint Roberts whose evidence was obtained well after the commencement of this trial. Mr. Roberts is a family friend and acquaintance and an owner of a dump truck haulage business near the plaintiff’s original home.
[269] Mr. Roberts simply stated that work as a truck driver was available to the plaintiff with his company from 2012 to the present time. In 2012, the pay rate would have been £7 to £8 per hour and is presently £15 per hour with better paying jobs available for drivers with the plaintiff’s experience.
[270] However, there was no evidence from Mr. Roberts as to how many hours a week that would have been, for how many weeks of the year and whether the work with his company was seasonal, part-time or full-time work.
[271] While the plaintiff did return to the UK for several months in 2009 to work as a truck driver because of the poor financial position Cedar Creek Stables was in, he provided no evidence as to what kind of income he earned during that time period.
[272] The plaintiff also provided no significant evidence at trial that he would be unable to work as a truck driver in the United Kingdom including for Mr. Roberts’ trucking business because of his eyesight restrictions as a result of his injuries. There was no evidence from Mr. Roberts or anyone else of any government regulations there requiring the plaintiff to have minimum visual capabilities and be able to pass a visual eye test so as to obtain whatever licence required to operate large trucks or any commercial truck including transport trailers.
[273] Accordingly, no significant evidence was provided to the Court that he would have been unable since his injuries May 31, 2010 because of his eyesight restrictions to work as a commercial truck or transport truck operator in the United Kingdom or throughout Europe had he returned there after the sale of Cedar Creek Stables.
[274] What is also significant is the fact that when Mr. Belton worked for Bronte Creek Stables from March to September 2014, he was required to and in fact obtained his Z licence which permitted him to drive his employer’s large truck and horse trailer there. There is no evidence that he could not similarly continue to do so and work on a full-time basis for any other employers in Ontario even though he may not have been able to obtain his AZ licence.
[275] The plaintiff is not claiming any income loss from the date of the incident of May 31, 2010 to the end of December 2012. During that time, it appears clear that he had really suffered no income loss at all as he was working full time for Mr. Hill at Cedar Creek Stables being paid $1,000 per week which was rounded off to $4,000 per month. He in turn paid Mr. Hill $800 per month for his rent and $800 per month for each of his horse boarding costs.
[276] There was evidence at trial, which I accept, from Mr. Gupta confirming the actual significant demand for full-time transport truck operators in Ontario, short-haul and long-haul, for many years back to 2012 including for foreign nationals such as the plaintiff if they had obtained the appropriate work and licensing permit.
[277] The plaintiff had obtained that permit to drive truck for an Alberta company but only that company when he first arrived in Canada in 2008. That restricted work permit expired in 2010 and he did not obtain another one to work for any other trucking company in Ontario since.
[278] Lastly, it is because of his immigration status, not his injuries sustained, that he has not been legally authorized to work in Canada in any capacity let alone as a truck driver since September 2014.
[279] The plaintiff’s expert Mr. Pyper calculated the past income loss of the plaintiff since January 1, 2013 based on the Statistics Canada information of what income was derived by full-time truck drivers for each of those years. He deducted the income Mr. Belton actually earned working for Mr. Hill and Bronte Creek, approximately $36,500 annually from November 2014 to mid 2019 as imputed income for his work he did for his spouse Michele Hinrichs (valued at $700 weekly) and the further income earned when he recommenced his work for Mr. Hill in July 2019.
[280] He calculated that past income loss of approximately $110,000 in Canada which he stated based on his review of the statistics in the UK would be approximately the same as well.
[281] Mr. Pyper also provided an alternative calculation based on damages the plaintiff sustained because of his past loss of earning capacity due to his disability. Utilizing these same income loss figures and a 13 percent disability factor, the past loss of earning capacity damages in Canadian income was calculated at approximately $57,564 in Canadian income and $50,580 in UK income.
[282] Compensation for past loss of earning capacity or loss of income is based on what the plaintiff would have, not could have, earned but for the injuries he sustained.
[283] With respect to the expert evidence of Mr. Pyper, I am not satisfied on the balance of probabilities on all of the evidence that the plaintiff, but for his injuries sustained on May 31, 2010, would likely have returned to work full-time as a transport truck operator either in the United Kingdom or in Ontario or elsewhere in Canada at any time after May 31, 2010.
[284] Mr. Belton had already, at the time of his injuries, been offered and accepted a position to stay on at Cedar Creek Stables to continue with full-time work that was his passion as a horse and stable operator. It allowed him to continue with riding his own horses including in competitions if he wanted. He was being paid the equivalent of almost $50,000 per year to do so which was far greater than the average income a horseman in Ontario was making as indicated by the Statistics Canada information provided from Mr. Pyper. The job offered that he accepted was not a short-term job.
[285] Given those facts, it was unlikely that Mr. Belton would have sought full-time work and income as a truck driver from 2013 to 2014 because of his continued employment for Mr. Hill.
[286] What is also significant is that even though the plaintiff was recognized as a good employee and a hard worker for Mr. Hill, his loss of that employment with him was his own doing. He left that employment only because he had entered into a relationship with a married female horse boarder there, Michelle Hinrichs now his present spouse, of which Mr. Hill disapproved.
[287] I accept Mr. Belton’s evidence that he chose to resign from his employment and gave notice to Mr. Hill of that. Mr. Hill did not terminate the employment relationship. I reject the evidence of Peter Hill that he asked the plaintiff to leave. Mr. Hill also admitted in cross-examination that Mr. Belton worked continuously for him from the stables’ sale closing on August 18, 2010 until he left in 2014 when Mr. Belton decided to give him notice and quit. The plaintiff then obtained another horse stable job at Bronte Creek from March to October 2014.
[288] The evidence is clear that Mr. Hill valued the services of Mr. Belton who was a hard worker for him and also as a friend. To that extent, I accept the evidence of Mr. Hill. In fact, he rehired him again in July 2019 to share work responsibilities as a horseman for his stables with another employee. Their combined incomes from Mr. Hill have been approximately $45,000 to $50,000 annually.
[289] The logical and reasonable inference of all that evidence is but for Mr. Belton’s own conduct of which Mr. Hill disapproved and his resigning his employment from Mr. Hill, he would likely have worked continuously for Mr. Hill from February 2014 to date earning that approximate $50,000 annual income that he was making when he left. Any loss of income he may have sustained after that is not because of his injuries suffered on May 31, 2010.
[290] Accordingly, based on all these facts and his passion as a horseman, in my view it is unlikely, except for his own choice to stay with his present spouse in Ontario, that the plaintiff would have even considered leaving that position with Mr. Hill at Cedar Creek Stables to obtain work as a full-time transport truck operator in Ontario or the United Kingdom.
[291] Lastly, but most significantly, the assumption of Mr. Pyper was that the plaintiff would have been able to and would have earned a higher annual income as a truck driver in Ontario or Canada but for his injuries suffered in this incident to the date of trial.
[292] However, the evidence at trial was clear that the plaintiff since September 2014 to date did not have a valid permit issued by the Canadian immigration authorities to legally work as a truck driver because of his immigration status. He was also not permitted to stay in Canada. Because of his lack of immigration status and work permit, his attempt to work as a transport truck driver and any employer hiring him would both be serious violations of the Immigration and Refugee Protection Act (“IRPA”) resulting in significant sanctions to both.
[293] Accordingly, the plaintiff has not established on a balance of probabilities that he either could let alone would have worked on a full-time basis as a transport truck driver in Canada from 2013 to the date of trial.
[294] Accordingly, it would not be appropriate to consider a past income loss claim for the plaintiff and I make no such award.
FUTURE LOSS OF INCOME EARNING CAPACITY
[295] There is, however, some merit to the plaintiff’s claim for damages based on the impairment of his future loss of earning capacity because of his injuries sustained on May 31, 2010 as suggested by Mr. Pyper.
[296] The plaintiff has suffered a significant loss of his visual field in his right eye because of his injuries sustained on May 31, 2010. The plaintiff did not call anyone as a witness from the MTO licence office with whom he says he spoke in April 2011 regarding the non-renewal of his AZ licence then supposedly because of his eye issues nor was the MTO witness Mr. Gnagnarella, who he called at trial, able to comment on that.
[297] Moreover, as indicated above, the plaintiff was able to obtain a Z licence attached to his G licence to drive the large commercial truck of his employer Bronte Creek Stables from March to October 2014.
[298] There is clear evidence of Dr. Mandelcorn, the defence expert, that the plaintiff would not be able to pass the visual eye test required in Ontario in order for him to obtain his AZ commercial truck driving licence which would allow him to drive commercial transport trucks.
[299] The result of that evidence is that the plaintiff because of his injuries will potentially continue to be prevented from returning on a full-time or even on a part-time basis to commercial transport truck driving at least in Ontario and possibly in the United Kingdom which work he did before his injuries of May 31, 2010.
[300] In Canada, an award for future loss of income compensates the plaintiff for his or her loss of earning capacity – in other words, the loss of an asset, the capacity to earn. M.B. v. British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477 at para. 47; Lazare v. Harvey, 2000 ONCA 171; Boucher v. Walmart Canada Corp., 2014 ONCA 419 at para. 102; Cooper-Stephenson and Adjin-Tettey, Personal Injury Damages in Canada, Third Edition, pp. 330-333.
[301] Whereas compensation for past loss of earning capacity is based on what the plaintiff would have, not could have, earned but for the injuries he sustained, a plaintiff who seeks compensation for future loss of earning capacity need not prove that it will be lost or diminished on a balance of probabilities.
[302] The plaintiff need only establish that his loss was a real and substantial possibility because of the injuries he sustained. The higher and/or more substantial the risk of the plaintiff suffering such a loss, then the higher the award he should receive. Shrump v. Koot (1997) 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke, (1990) 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (C.A.).
[303] The task of the court is to assess damages not to calculate them according to some mathematical formula. Once an impairment of the plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued. The plaintiff is entitled to compensation for loss of earning capacity to recognize the likelihood that there may indeed be positions in the future which the plaintiff might otherwise have had an opportunity to obtain but which will not be feasible for him in light of the continuing symptoms from his injuries.
[304] In arriving at the assessment of this loss, the whole of the evidence must be considered. However, remote, fanciful or speculative possibilities unsupported by the expert or other coaching evidence are to be excluded from consideration.
[305] The plaintiff who establishes a real and substantial risk of pecuniary loss is not necessarily entitled to the full measure of that potential loss. The measure of compensation will also depend on the possibility, if any, that the plaintiff would have suffered some or all of the projected losses even if the wrong done to him or her had not occurred. Graham, at pp. 634-635; Beldyki Estate v. Jaipargas, 2012 ONCA 537 at para. 76.
[306] In determining the future pecuniary loss, which at best must be an estimate, the court should take into consideration the evidence of both positive and negative contingencies which may affect that loss. Giannoni v. Weinberg (1989) 1989 CanLII 4046 (ON CA), 68 O.R. (2d) 767 (C.A.).
[307] General contingencies which are shared with everyone are not readily susceptible to evidentiary proof as regards a particular individual nor is such proof required. Generally speaking, an allowance for these contingencies should be modest.
[308] By contrast, specific contingencies referring to a particular plaintiff requires evidence of a realistic not a speculative possibility that they will materialize for the particular plaintiff.
[309] Mr. Pyper calculated the value of Mr. Belton’s future income losses also based on his being able and in fact working as a full-time truck driver in Canada from his present age of 58 to retirement ages of 65 and 67 at $103,000 and $135,000 respectively.
[310] He also provided an alternative calculation of damages the plaintiff sustained because of his future loss of earning capacity due to his disability using a 13% disability factor. The future loss of earning capacity damages calculated based on an annual loss of $6,961 would be $55,688 for Canadian income and $49,048 in UK income.
[311] In this case, I am of the view that the plaintiff has established a substantial and reasonable possibility of a future loss of earning capacity or loss of competitive advantage and that calculating that loss is more reasonably based on a capital asset approach than assessing his loss based on a loss of earnings approach.
[312] The plaintiff is less capable of earning income as a transport truck driver that requires his having an AZ licence because of his visual restrictions. He has accordingly been deprived of the future opportunity if he wished and was permitted to drive a large transport truck trailer in Ontario and perhaps Canada whether it be on a full-time basis or even a part-time basis to supplement his other income that he has chosen to earn. He may also be less capable of doing that kind of work if he decided to return in the future to the United Kingdom.
[313] The plaintiff accordingly is less marketable and his ability to take advantage of all job opportunities as a transport truck operator has been impacted assuming he would be eventually successful in obtaining a permit to both remain and work in that area in Canada by the Canadian immigration authorities.
[314] The trial judge’s decision in Cerilli v. Ottawa (City), 2006 CarswellOnt 7828; 2008 ONCA 28 awarding damages for future loss of income earning capacity or loss of competitive advantage of $80,000 was upheld by the Court of Appeal. The award was made even though the plaintiff’s approach to his chosen profession would not materially change during the rest of his working life with the result that he was not deprived of the capital asset that would exceed his present earning capacity.
[315] In my view, there are contingencies that must be taken into account in determining the proper assessment of the value of the plaintiff’s damages for his future loss of earning capacity including the plaintiff’s choices of his future work.
[316] Those include the specific negative contingencies applicable to the plaintiff of his not being able in the future to obtain a work permit to operate a transport truck in Ontario, his choosing to continue to work in his dream job as a horseman in a horse stable operation and choosing not to work full-time in the future as a transport truck operator, and his choosing not to return at all to the United Kingdom to do that kind of work full-time.
[317] The fair and reasonable assessment of Mr. Belton’s claim for his loss of future income earning capacity is $45,000.
OTHER SPECIAL DAMAGES
[318] The parties agree that the plaintiff’s damages would include the amounts owing for the subrogated claims for OHIP and the Alberta Health in the amounts of $422 and $12,241.58 respectively.
EX TURPI CAUSA
[319] The defendant takes the position that the plaintiff is not entitled to any of his claims for damages including his general damages for pain and suffering and his pecuniary loss damages for his loss of earning capacity because of the doctrine of ex turpi causa non oritur actio.
[320] The defendant refers to the following conduct of the plaintiff and evidence which he states disentitle him to any claim for damages based on that principle:
a) Although the plaintiff had obtained a work permit to drive trucks only for his Alberta employer in 2008, that employment terminated in late 2008 or early 2009. It was admitted at trial that he was not authorized to work elsewhere in Canada including operating Cedar Creek Stables on the date of his injuries on May 31, 2010.
b) The plaintiff was not initially legally authorized to work for Mr. Hill from August 2010 until he obtained his work permit allowing him to do so on September 23, 2011 which permit expired on September 22, 2014.
c) There was significant evidence at this trial that that work permit was obtained based on misrepresentation and fraudulent documents created and provided by the plaintiff and Mr. Hill to the Canadian immigration department in support of that application.
d) The plaintiff was not legally authorized to work for another employer Bronte Creek from March to October 2014 under that earlier Cedar Creek Stables work permit.
e) The plaintiff was in fact engaged in work illegally for his spouse from 2015 to 2019 while not being authorized to do so under the IRPA.
f) The plaintiff did not truthfully answer a number of questions in his IRPA application forms filed to maintain his residency in Canada.
g) The plaintiff again worked for Peter Hill commencing July 2019 to the present without a valid permit or authorization to both of their knowledge. He has not been legally entitled to remain in Canada. He is a foreign national without status to be in the country and was advised that he must leave Canada immediately.
h) The plaintiff has not paid income taxes on his income earned while in Canada from the time he operated Cedar Creek Stables in 2008 to date.
[321] The ex turpi causa doctrine is a defence in a tort action. Even if a defendant is shown to have caused harm by acting wrongly or negligently, the responsibility for this harm should be suspended but only when concern for the integrity of the legal system trumps the concern that the defendant be held responsible. Hall v. Hebert, 1993 CanLII 141 (SCC), [1993] 2 S.C.R. 159.
[322] The doctrine applies in very limited circumstances. The only justification for it is the preservation of the integrity of the legal system.
[323] The use of the ex turpi causa doctrine is justified only to prevent the plaintiff from profiting from an illegal wrongful act or to evade a penalty prescribed by criminal law. It is not justified where the plaintiff’s claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant.
[324] Generally, the doctrine does not preclude an award of damages in tort because such awards tend to compensate the plaintiff rather than amount to a profit. All claims for compensation damages by the plaintiff injured by the defendant can be reduced to the extent of his own contributory negligence but cannot be wholly denied by reason of his disreputable or criminal conduct. Hall v. Hebert, at pp. 169, 180 and 186; British Columbia v. Zastowny, 2008 SCC 4 at p. 37.
[325] The onus is on the defendant to prove the illegal or immoral conduct that precludes the plaintiff’s action such that there would be a profit from such conduct or the evasion of or rebate of a penalty provided by criminal law. British Columbia v. Zastowny, at para. 20; Aviva Canada Inc. v.1843538 Ontario Inc., 2019 ONSC 3874 at para. 37.
[326] In Hall v. Hebert, the Supreme Court of Canada considered the issue of a claim for damages by a person who suffered serious head injuries in a car accident while he was committing the criminal offence of impaired driving. The court held that the ex turpi causa doctrine did not preclude the plaintiff in those circumstances from seeking compensation for his tort damages including pain and suffering and loss of income from the owner /passenger of that vehicle who allowed him to drive while clearly impaired by his alcohol consumption.
[327] The Supreme Court in Zastowny also confirmed that the ex turpi causa doctrine does not preclude a claim for compensation damages for personal injuries sustained. The plaintiff sued the provincial government because of his being sexually assaulted while in prison. The Supreme Court confirmed that he was entitled to claim for his personal injury damages including for general and aggravated damages and future counselling costs. He could also claim those past and future wage loss claims for the time periods when he was not incarcerated for his own criminal acts.
[328] The Supreme Court of Canada in Rankin v. J.J., 2018 SCC 19 at para. 63 confirmed that the notion that illegal or immoral conduct by the plaintiff precludes the existence of a duty of care has consistently been rejected by the Supreme Court of Canada.
“Tort law does not seek to punish wrongdoing in the abstract. Rather, private law is corrective and based on compensation for harm that results from the defendant’s unreasonable creation of the risk of that harm. If the mere fact that illegal behaviour could eliminate a duty, this would effectively immunize negligent defendants from the consequences of their actions. Seriously injured victims would be entirely denied recovering, even when the defendant bears most of the fault.”
[329] There is no distinction of any significance of those decisions from this one involving the plaintiff and I am bound by them.
[330] In addition, the pecuniary loss compensation actually awarded to the plaintiff is not for a very specific income loss but rather the loss of the plaintiff’s future earning capacity as a truck driver which he did before this incident on May 31, 2010. He will not be profiting from his illegal behaviour or misrepresentations to the immigration authorities. Kim v. Choi, [2020] BCCA 98.
[331] The plaintiff was not engaged in illegal gambling or similar type of work when he was injured.
[332] The evidence of the plaintiff’s very experienced immigration consultant Carolyn Mahon is that she did not know for certain if the plaintiff’s present application for spousal sponsorship to remain in Canada will succeed. However, based on her experience, the government’s policy recognizes the interest of allowing immigrants as loving couples to live together and support each other as common law spouses in Canada based on humanitarian and compassionate grounds. The plaintiff’s not disclosing his income earned in Canada without a permit in her opinion would not automatically result in his present spousal sponsorship application being denied. I accept her evidence in that regard.
[333] Furthermore, the Canadian government’s public policy under A25(1) of the IRPA recognizes that those foreign nationals who lack status and overstay their visa or work illegally in Canada are not disentitled in their application for permanent status on that basis. I agree with plaintiff’s counsel that this policy speaks to the lack of moral turpitude associated with such illegality and puts it in its proper social and economic context.
[334] Allowing the plaintiff’s claims for general damages for pain and suffering, the minor special damages and future loss of income earning capacity damages if the defendant was found liable for his injuries would not result in an attack on the integrity of the administration of justice.
[335] Accordingly, the doctrine of ex turpi causa does not preclude or reduce any of the awards of compensation for general damages, special damages and future loss of earning capacity that I would have been awarded if the defendant had been found liable for the plaintiff’s injuries that occurred on May 31, 2010.
CONCLUSION
[336] The plaintiff’s action against the defendant is accordingly dismissed.
[337] The parties are strongly encouraged to resolve the issue of prejudgment interest and costs between them. If they are unable to do so, the defendant shall provide written submissions on costs within 45 days from the date of this decision including a bill of costs and any relevant offers to settle.
[338] The plaintiff will be entitled to similarly respond within 20 days thereafter.
[339] If no written submissions are received during this time frames, the parties will be deemed to have resolved the issue of costs of this action.
The Honourable Mr. Justice R. J. Nightingale
Date: March 23, 2021
COURT FILE NO.: CV-12-35170
DATE: 2021/03/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOHN BELTON
Plaintiff
- and -
KATIE SPENCER
Defendant
REASONS FOR JUDGMENT
Nightingale, J
Released: March 23, 2021