



COURT OF APPEAL FOR ONTARIO

CITATION: Danilova v. Nikityuk, 2018 ONCA 403

DATE: 20180426

DOCKET: C64103

Doherty and Pepall JJ.A. and Gray J. (
ad hoc
)

BETWEEN

Svetlana Danilova and Pavel Danilov

Plaintiffs (Appellants)

and

Alla Nikityuk, Valentin Nikityuk, Yana Skybin,
    Young Mens Christian Association operating as YMCA Simcoe/Muskoka

Defendants (Respondents)

Amanda M. Chapman and Jessica Mor, for the appellants

Aman Dhillon and Lisa Loader, for the respondents, Alla
    Nikityuk and Valentin Nikityuk

Andrew M. Mae and W. Thomson for the respondents, Yana
    Skybin and YMCA Simcoe/Muskoka

Heard and released orally:  April 23, 2018

On appeal from the order of Justice G. Mulligan of the Superior
    Court of Justice, dated June 28, 2017.

REASONS FOR DECISION

[1]

The appellants raise three grounds of appeal. Two concern the trial
    judges credibility assessments and the third alleges prejudice resulting from
    a five-month adjournment in the course of the trial proceedings.

[2]

Counsel for the appellants acknowledged at the outset of oral argument
    that the appeal is limited to the three issues raised. She takes the position
    that if any of their grounds succeed, there must be a new trial. If none
    succeed, counsel does not argue that the judgment should be varied.

[3]

We confine our reasons to the three issues raised.


I



the trial judges assessment of credibility

[4]

The trial judge clearly preferred the evidence of the respondents over
    that given by the appellants. The appellants claim that he did so in a
    peremptory manner that failed to demonstrate the basis upon which the trial
    judges credibility determinations were made. Counsel relied on a single
    passage in para. 59 of the reasons for judgment.

[5]

It is true that para. 59 is conclusory, however, that paragraph must be
    read in the context of the entire judgment. Throughout the judgment, the trial
    judge made findings of fact that amply justified the trial judges ultimate
    credibility findings and fully explained to the reader the reasons for that
    finding: for example, see paras. 174-75, 179. Read as a whole, the reasons
    adequately explain the trial judges findings. Those findings were warranted on
    the evidence and set out the trial judges pathway to his credibility findings.


II



the collusion argument

[6]

The appellants argue that there was evidence that Ms. Skybin, one of the
    respondents, colluded with three witnesses called by the YMCA in respect of
    their evidence. They gave evidence in the second part of the trial, after the
    five month adjournment referred to above.

[7]

The record shows that Ms. Skybin, who speaks Russian, was involved in
    the preparation of the will-say statements by these three witnesses who are
    Russian speaking. The extent of her involvement in the will-say statements was
    a matter of dispute at the trial.

[8]

When the three witnesses testified, each gave evidence that was
    inconsistent with the contents of the will-say statements in one or two
    respects. None of the witnesses were asked about any influence Ms. Skybin had
    on either their will-say or, more importantly, their actual evidence at
    trial. Nor were any questions directed to these witnesses about the collusion
    between Ms. Skybin and the witnesses.

[9]

In our judgment, the record does not offer any evidentiary support for a
    collusion finding. It is difficult to find collusion in a situation in which the
    will-says said to be prepared by Ms. Skybin, one of the alleged colluders,
    are inconsistent in material respects with the evidence given by witnesses who
    are said to have colluded with Ms. Skybin. We observe that, in some cases, the
    version of events in the will-says were more favourable to the respondents
    but in at least one case, the will-says were more favourable to the
    appellants.

[10]

The
    record may have supported an argument that Ms. Skybin was improperly involved
    in the preparation of the will-says and that her involvement should adversely
    affect her credibility and the credibility of the witnesses to whom the will-says
    refer. However, that avenue was not pursued at trial. Counsel did not seek to
    have Ms. Skybin recalled and no questions were ever put to her about her
    involvement in the preparation of the will-says. In these circumstances, we
    see no error in the trial judges failure to address collusion as a separate
    consideration in his credibility assessment.


III



the five-month adjournment of the trial

[11]

The
    trial ran beyond the allotted time. It was adjourned without objection to the fall
    sittings, some five months later. At the time of the adjournment, the YMCA witnesses
    had not testified.

[12]

Counsel
    submits that the adjournment caused serious prejudice to the appellants and
    effectively denied them meaningful access to justice. No one pretends that a
    five-month adjournment in the middle of a trial is a good thing. It clearly is
    not. However, this court cannot, in the absence of any request at trial for an
    earlier date, or any comment by anyone at trial that an earlier date should be
    sought, declare that a five-month adjournment is so presumptively prejudicial
    as to require the setting aside of a judgment. No actual prejudice has been
    demonstrated by the appellants and in this case none can be assumed merely from
    the length of the adjournment.

[13]

The
    appeal is dismissed.

[14]

In
    our view, this is a case for costs on a partial indemnity basis. Costs to
    Nikityuk respondents in the amount of $11,000, inclusive of disbursements and
    relevant taxes, and costs to the YMCA/Skybin respondents in the amount of
    $20,000, inclusive of disbursements and relevant taxes.

Doherty J.A.

S.E. Pepall J.A.

D.K. Gray J. (
ad
    hoc
)


