



COURT OF APPEAL FOR ONTARIO

CITATION: Saumur v. Antoniak, 2016 ONCA 851

DATE: 20161114

DOCKET: C60403

Blair, Epstein and Huscroft JJ.A.

BETWEEN

Dean Saumur, an infant under the age of 18 years
    by his Litigation Guardian, Janet Saumur, and the said Janet Saumur

Plaintiffs

(Respondents)

and

Luba Antoniak, Lester Antoniak and
City of
    Hamilton

Defendants

(
Appellant
)

Earl A. Cherniak Q.C. and C. Kirk Boggs, for the
    appellant

Robert J. Hooper and Mary K Grosso, for the respondents

Heard: November 2, 2016

On appeal from the judgment of Justice J.A. Ramsay of the
    Superior Court of Justice, dated April 13, 2015.

ENDORSEMENT

[1]

The respondent Dean Saumur was badly injured when struck by a car while
    crossing a busy street in Hamilton on his way to school on May 14, 2002.  He
    was almost 10 years old at the time.

[2]

The City of Hamilton had committed itself to staffing the crosswalk
    where the accident occurred with a crossing guard between 8:20 AM and 8:40 AM
    on school days. It is not contested that the crossing guard was not on site
    when Dean crossed the road, and that, if Dean were crossing the road during the
    time when the crossing guard was to have been on site, the City is liable.

[3]

The trial focussed on two issues relevant to this appeal: (i) at what
    time did the accident occur (i.e., did it occur during the period of time when
    the crossing guard was to have been present); and (ii) should Dean be found to
    be contributorily negligent?

[4]

After reviewing and weighing the evidence of four witnesses who saw the
    accident and six witnesses who did not but who gave testimony relevant to the
    issues (including the crossing guard, whose evidence he did not accept), the
    trial judge found that Dean had crossed the road during the period of time when
    the crossing guard should have been present, but was not. He also held that
    Dean was not contributorily negligent.

[5]

In what is almost entirely a factually-based appeal, the City contests
    these findings. In our view, the trial judge made no palpable and overriding
    error of fact or of mixed fact and law, nor did he err in law, in finding that
    the accident occurred within the relevant time period or in failing to hold
    that Dean was contributorily negligent.

The Timing of the Accident

[6]

The witnesses gave conflicting testimony about when the accident took
    place. Much of it was given in the form of estimates or approximations. It was
    the trial judges task to resolve these conflicts. Whether he could have taken
    another view of the evidence is not the point. He resolved the conflicts as he
    saw the evidence and conducted an appropriate analysis, without error, in our
    view, in doing so. There was ample support in the record for his findings and
    conclusions.

[7]

One need look no further than the evidence of the witness, Marc Schulze
    as a starting point. Mr. Schulze was driving towards the crosswalk when the
    accident occurred and saw it happen. He stopped, took the time to park his car
    in a way that would protect Dean, who was on the road, and then looked at the
    clock in his car. The clock read 8:38 AM. Mr. Schulze had received training
    through the fire department to be alert to when accidents occur. This evidence
    was not challenged on cross-examination and was accepted by the trial judge.

[8]

Notwithstanding this, the appellant submits that the trial judge could
    not rely on the time indicated by Mr. Schulzes clock or on his evidence
    without weighing it against the other evidence with respect to timing, which
    the appellant says establishes that the accident must have occurred after 8:40
    AM when the crossing guard was not required to be on site. Had the trial judge
    conducted a proper analysis of the conflicting testimony, as he was obliged to
    do, according to the appellant, he would have realized that this was so.

[9]

The trial judge did not rely solely on the evidence of Mr. Schulze,
    however, and he carefully reviewed the evidence of each of the witnesses and
    conducted an analysis of the conflicting positions with respect to when Dean
    arrived at the crosswalk, including the time it would have taken for him to
    walk from his home to the cross walk, the manner in which he was walking  was
    he hustling or scurrying because he thought he would be late?  and, in
    particular, the timing of the 911 call which everyone agrees was at 8:42:58 AM.

[10]

Tori Pomerleau made the 911 call, upon which the appellant places great
    emphasis. Tori was 13 years old at the time. She and her younger brothers went
    outside at about 8:35 AM or 8:40 AM and were standing on their driveway close
    to their house when she saw Dean passing by the neighbours yard. He appeared
    to be scurrying but not running and looked as if he were in a hurry. She turned
    to her brothers as he went past and then heard a noise and turned around and saw
    Dean flying through the air. She then went along her driveway to where he was
    lying to see if he was okay  she was kind of in shock staring at him and
    seeing the blood coming out of his nose -- and observed the driver of the car
    that struck him pull over to the side of the road. A woman got out of her car
    and yelled at her to call 911. She ran to her house, fumbled with her keys to open
    the door, and ran through the hallway to the kitchen where the phone was located
    to make the call. As noted, it was placed at 8:42:58 AM. Tori estimated that
    all of this took two or three minutes.

[11]

The trial judge found that Toris evidence did not preclude the accidents
    having happened before 8:40 AM, given that her estimate of two or three minutes
    was approximate, that she was shocked by the accident, that she ran to the boy,
    looked at him, no doubt watched what Mr. Schulze was doing (he was attending to
    Dean) for a time, had to be asked to call 911, ran to the house, fumbled with her
    keys and perhaps had to wait for the 911 operator to pick up the phone. He
    found that Tory could easily have taken more than three minutes to get through
    to 911.

[12]

Fastening on the 8:38 AM reading on the clock in Mr. Schulzes car, the
    appellant argues that, if the accuracy of that reading is accepted, it must
    have taken Tori almost five minutes to do what she said she did. The appellant
    says it is inconceivable this could be the case and therefore the trial judges
    analysis is undermined. We do not accept this argument. The evidence, and
    common experience relating to the inaccuracies of peoples estimates of time,
    could well lead to a different conclusion.

[13]

In any event, the argument misses the point. The issue is whether it
    took Tori more than two minutes and 58 seconds to make the call. If it did, the
    accident occurred prior to 8:40 AM. On Toris own estimate of two or three
    minutes, it was open to the trial judge to find that the accident occurred
    three minutes before the 911 call, namely at 8:39:58 AM  and this is without
    leaving any margin for the fact that the crossing guard was obliged to remain
    on site after 8:40 AM if she saw a child within sight of the crosswalk,
    something that would add a further period of time for Dean to reach the
    crosswalk under her watch.

[14]

The appellant places some emphasis on the trial judges comment that
    Tori no doubt watched what Marc Schulze was doing for some brief period of
    time, submitting that there was no evidence to that effect. We do not think
    this observation has much bearing on the overall timing of the events or that
    it undermines the trial judges view of the timing of the 911 call. Nor do we
    think the trial judge erred in rejecting the evidence of Susan Round who
    testified that she heard the schools 8:40 AM bell when Dean was still walking
    down the sidewalk towards the cross-walk. He was entitled to reject that
    evidence and, in any event, as noted above, the evidence was that even if Dean
    had been walking towards the crosswalk and was in sight of the crossing guard,
    although not yet at the crosswalk, the crossing guard would have been required
    to have stayed after 8:40 AM to help the child across the road.

[15]

In addition, the appellant criticizes the trial judge for not
    specifically addressing the evidence of the witness, Mr. de Groote, in the
    course of the analysis portion of his reasons regarding the timing of the
    accident. The trial judge was clearly alive to that evidence, however, as he
    had reviewed it earlier in his reasons, and the probative value of his evidence
    on the timing issue was uncertain in any event. Mr. de Groote testified that
    when he drove his children to school and passed the intersection the crossing
    guard was in place and that they arrived at the school just before he heard the
    8:40 AM bell. When he returned, the accident had already happened. All of this
    took up to four minutes, but Mr. de Groote did not say when it was, within that
    potential four minute span, that the bell rang. A trial judge is not obliged to
    refer to each and every piece of evidence in the course of his or her reasons,
    and we see no palpable and overriding error in the absence of a specific
    reference to Mr. de Grootes evidence in the analysis portion of the trial
    judges reasons.

[16]

The trial judges analysis of the timing issue did not stop with the
    combination of the evidence of Mr. Schulze and Tori Pomerleau. He added to the
    mix  as he was entitled to do  the evidence relating to the time it would
    have taken Dean to travel from his house to the crosswalk. He accepted the
    evidence of Deans mother that Dean left home at 8:30 AM. On the basis of the
    evidence relating to the various scenarios [regarding] distances, slow, medium
    and fast average walking speeds and Deans time of departure from home, he
    concluded that it would have taken Dean 7 minutes from the time of his
    departure to the time of his arrival at the crosswalk and that it was very
    unlikely that Dean arrived at the crosswalk after 8:40 AM. These findings were
    open to the trial judge on the record.

[17]

In conclusion, while the appellant seeks to put a different gloss on the
    evidence, there was ample evidence to support the findings made by the trial
    judge.

[18]

Recognizing, no doubt, that the appeal on the timing issue is factually
    based, Mr. Cherniak argued that the trial judge erred in law in failing to
    conduct the type of analysis of the evidence that he was mandated to do,
    thereby leading to the palpable and overriding errors of fact the appellant
    submits he made. In this respect, he relied on the following passage from
Faryna
    v. Chorny
, 1951 CarswellBC 133 (B.C.C.A.), at para. 10, regarding the test
    for determining the credibility of interested witnesses:

The test must reasonably subject [the witness] story to an
    examination if its consistency with the probabilities that surround the
    currently existing conditions. In short, the real test of the truth of the
    story of a witness in such a case must be its harmony with the preponderance of
    the probabilities which a practical and informed person would readily recognize
    as reasonable in that place and in those conditions.

[19]

The trial judge did not cite any jurisprudence to that effect in his
    reasons.  Reading those reasons as a whole, however, we are satisfied that he
    conducted just such an exercise in his review and analysis of the testimony in
    relation to the issues he addressed. We would not give effect to this argument.

[20]

Much time was spent on the appeal re-arguing the submissions that were
    made to the trial judge and inviting us to re-weigh the evidence led at trial
    and come to a different conclusion. We cannot do that. While another judge may
    have come to different conclusions based on the record, it was this trial
    judges call on the evidence and his findings are amply supported by the
    record. It is not this Courts role to re-parse what happened on a second by
    second basis, as the appellant would have us do.

[21]

We reject this ground of appeal.

Contributory Negligence

[22]

The trial judge declined to make a finding of contributory negligence
    against Dean in the circumstances. It may be surmised that he recognized this
    was a close call because his final conclusion was that [c]ontributory
    negligence is not proven on the preponderance of the evidence.

[23]

The parties agree that the test to be applied in determining negligence,
    including contributory negligence, in the case of children is that articulated
    by this Court in
Nespolon v. Alford,
1998 CarswellOnt 2654 (C.A.), at
    para 53:

In determining the appropriate standard of care for children,
    the test is whether a child exercised the care expected from children of like
    age, intelligence and experience (
McErlean v. Sarel
(1987), 61 O.R.
    (2d) 396 (Ont. C.A.), at pp. 411-12 and
McEllistrum v. Etches
, [1956]
    S.C.R. 787 (S.C.C.);
Heisler v. Moke
(1971), [1972] 2 O.R. 446 (Ont.
    H.C.) at p. 448 (per Addy J.), see also
Downing v. Grand Trunk Railway
(1921), 49 O.L.R. 36 (Ont. H.C.) at p. 40).  This is both an objective and
    subjective standard, which acknowledges the need for individualized treatment
    along with the need for consistency in the law.

[24]

The parties also agree that, at an age just shy of his 10
th
birthday, Dean was old enough for a finding of contributory negligence to be
    made against him.  They disagree, however, on whether such a finding should
    have been made on the facts of this case.

[25]

Mr. Boggs points to a number of findings made by the trial judge and
    submits that, on these findings alone, a finding of contributory negligence
    should have been made.  These included the findings that:

(a) Dean was a boy of average
    intelligence;

(b) he had walked to school for some
    months and had been taught to look both ways before crossing and to follow the
    crossing guards instructions;

(c) his rain hood would not have
    prevented him from seeing left if he had remembered to look left before he crossed;

(d) he did not remember to look left
    before he crossed; and,

(e) he knew better.

[26]

However, the trial judge made other findings as well that related to
    whether Dean had exercised the care expected from children of like age,
    intelligence and experience. He was not satisfied that Dean had experience
    with crossing a busy four-lane highway unsupervised. The appellant contests
    this finding, arguing that there was evidence of Dean having done so before. It
    does not follow, however, that Dean was experienced in crossing busy streets
    as a result of this, and we are satisfied the trial judges finding in this
    regard was open to him on the evidence.

[27]

The substance of the trial judges basis for his finding on contributory
    negligence is found in the concluding paragraph of his reasons on this issue 
    keeping in mind that he had already completed his full analysis of the incident
    and the timing of the incident:

Based on my assessment of the witnesses and their evidence, I
    find that Dean walked at a normal pace to the crosswalk, speeding up a bit
    before he arrived. He was not necessarily walking with his head down at this
    point. He may have seen the Antoniak vehicle as he walked south, but if he did
    he was not equipped at his age to judge distance and speed.  Or he may not have
    seen it because he forgot to look left before he crossed.  He knew better, but
    children are notoriously forgetful when they are distracted or confused.  I
    think that Dean was confused because he arrived at the crosswalk and there was
    no crossing guard to help him.  He did not dart into traffic. I accept that Marc
    Schulze saw him standing in or near the crosswalk, which implies that his
    action of turning right and stepping into the roadway was interrupted for at
    least a perceptible moment. Dean stepped into the lane at a quick walk or jog
    and got a few step[s into the lane when he was struck.  I am not satisfied in
    all this that Dean acted below the standard of a reasonably prudent 10-year old
    of like intelligence and experience. Contributory negligence is not proven on
    the preponderance of the evidence.

[28]

The appellant quarrels with certain aspects of this conclusion,
    particularly the references to Dean not [being] equipped at his age to judge
    distance and speed, the comment that children are notoriously forgetful when
    they are distracted or confused, and the finding that Dean was confused
    because he arrived at the crosswalk and there was no crossing guard to help him.
    The appellant says there was no evidence to support these observations or
    findings and that being forgetful, distracted or confused is not an excuse for
    negligence but rather an
indicia
of it.

[29]

The trial judge heard all of the evidence, however  including,
    importantly, the testimony of Dean and Tori and other witnesses who were
    children at the time of the accident. He was entitled to draw inferences from
    what he determined to be the dynamics of the events as they occurred, and to
    apply his experience and common sense in doing so. On this basis, and given the
    record, he was entitled to draw the inferences and come to the conclusions referred
    to above, in our view. That children lack the judgment of adults and that they
    are notoriously forgetful when they are distracted or confused, and therefore
    do not follow instructions on the basis of which they should know better, are
    concepts that are generally accepted and that have been recognized by the
    courts as factors distinguishing the conduct of children from that of adults in
    the negligence liability context: see, for example,
Gonzalez (Guardian ad
    litem of) v. Stewart
, 1995 CarswellBC 2403 (B.C.S.C.);
Bourne
    (Guardian ad litem of) v. Anderson
, 1997 CarswellBC 667 (B.C.S.C.). As
    this Court noted, in
Nespolon v. Alford
, at para. 53, the standard of
    care for children in situations such as this is both an objective and
    subjective standard, which acknowledges the need for individualized treatment
    along with the need for consistency in the law.

[30]

As the paragraph cited above demonstrates, the trial judge applied the
    correct legal standard of care as set out in
Nespolon
, namely the
    standard of a reasonably prudent 10-year old of like intelligence and
    experience. From the application of that standard his finding that no
    contributory negligence should be attributed to Dean was factually driven.
    While another finding may have been available on the evidence, the trial judge
    made no reversible error of fact or mixed fact and law in arriving at his
    findings and the conclusions he did on the contributory negligence issue.

Disposition

[31]

For the foregoing reasons, the appeal is dismissed.

[32]

The respondents are entitled to their costs of the appeal, fixed in the
    amount of $25,000 plus appeal disbursements and HST in accordance with the
    agreement of counsel.

R.A. Blair J.A.

Gloria Epstein
    J.A.

Grant Huscroft
    J.A.


