





CITATION:
Rojer v. Dorel
          Juvenile Group, Inc., 2011 ONCA 458





DATE:
          20110616



DOCKET: C52301



COURT OF APPEAL FOR ONTARIO



Goudge, MacFarland and Watt JJ.A.



BETWEEN



Karoline Rojer



Plaintiff (Appellant)



and



Dorel Juvenile Group, Inc., Dorel Industries Inc., and
          Cosco Inc.



Defendant (Respondent)



Ronald P. Bohm, for the appellant



Teresa Walsh and Greg Sheahan, for the respondent



Heard and released orally: June 14, 2011



On appeal from the judgment of Justice Anne Mullins of the
          Superior Court of Justice, dated May 15, 2010.



ENDORSEMENT



[1]

In this case the trial judge found that factual
    causation had not been proven on a balance of probabilities. This court is not
    permitted to retry the case. Nor are we in a position to do so. We can only
    interfere if the factual causation finding constitutes a palpable and
    overriding error. Despite Mr. Bohms thorough argument we cannot do so.

[2]

The trial judge found the appellants evidence
    unreliable. She concluded that the probable factual cause of the appellants
    accident was that she likely undertook an ill conceived and unsafe activity on
    the stool. The trial judge also concluded that she could not find that the
    wobbly steps of the stool caused or contributed to the accident.

[3]

In our view, the evidence before the trial judge
    permitted these findings. The appellant cannot say that the wobbly steps caused
    her accident. Unlike
Kamin v. Kawartha
    Dairy Ltd.
(2006), 207 O.A.C. 199, 79 O.R. (3d) 284, it cannot be said that
    this was the only reasonable inference that could be drawn from the evidence.
    Indeed, the inference the trial judge drew was that there was likely another
    cause, namely, the unsafe activity undertaken by the appellant. In our view,
    this finding was one that was open to her on the evidence.

[4]

We recognize that it would have been preferable for the
    trial judge to address, if only briefly, the other issues arising in a
    negligence case, including duty of care, standard of care, and the breach
    thereof. Not only does this assist full appellate review, but it permits the
    parties to fully understand why the outcome was reached. But ultimately, to
    succeed, the appellant had to demonstrate factual causation. The trial judge
    found that she had no done so and, for the reasons given, we cannot interfere.

[5]

The appeal must be dismissed. In saying this, we should
    not be taken to agree with the trial judges findings on damages. In our view,
    the trial judge clearly got Dr. Richardss evidence wrong and ultimately
    awarded an inordinately low amount. However, given our finding on liability, we
    need not formally address the damages question and apart from these comments,
    we decline to do so.

[6]

As to costs, the appellant was entitled to bring this
    appeal. In our view, in all the circumstances, the respondent is entitled to
    costs fixed in the sum of $5,000, inclusive of disbursements and applicable
    taxes if these costs are asked.

S.T. Goudge J.A.

J. MacFarland J.A.

David Watt J.A.


