



COURT OF APPEAL FOR ONTARIO

CITATION:  Kiskadee Ventures Limited v. 2164017 Ontario Ltd.,
    2016 ONCA 955

DATE: 20161219

DOCKET: C60677

Doherty, MacPherson and Lauwers JJ.A.

BETWEEN

Kiskadee Ventures Limited

Plaintiff (Appellant)

and

2164017 Ontario Ltd.
,
    Pal/Max Property Management Inc. and Metropolitan Toronto Condominium
    Corporation No. 870

Defendants (Respondent)

Jeffrey A. L. Kriwetz and David Fenig, for the appellant

Mark Terence Wong, for the respondent

Heard:  December 5, 2016

On appeal from the judgment of Justice Kelly P. Wright of
    the Superior Court of Justice, dated June 16, 2015, with reasons reported at
    2015 ONSC 3877.

By the Court:


[1]

The appellant, Kiskadee Ventures Limited (Kiskadee), sold produce and
    poultry to grocery stores.  Kiskadee purchased the produce from suppliers in
    the Caribbean and the poultry from local Ontario suppliers.

[2]

Kiskadee operated out of several units in a condominium.  The
    respondent, 2164017 Ontario Limited (216), operated its business out of a
    unit in the same condominium.

[3]

216 had work done in the basement of its unit in 2009.  In December
    2010, 216 filled in the hole in the basement floor with cement.  Kiskadee
    claimed that the work done in December 2010 damaged the telephone cable running
    under the floor of 216s unit.  Kiskadee maintained that the damage to the
    telephone cable caused it to lose telephone service in its units for several
    days.

[4]

Kiskadee sued 216, claiming that the damage to the telephone cable was
    caused by 216s negligence.  Kiskadee further claimed that its inability to
    communicate by telephone in a timely fashion with its Caribbean produce
    suppliers and its Ontario poultry suppliers resulted in substantial business losses. 
    The losses in respect of the Ontario poultry dealers consisted of the profits
    lost by Kiskadee when it could not complete certain purchases.  The losses in
    respect of the Caribbean suppliers occurred because the suppliers could not
    communicate with Kiskadee as prearranged at Kiskadees place of business. 
    Absent that timely communication, the suppliers had purchased produce on behalf
    of Kiskadee which eventually could not be shipped to Canada and sold by
    Kiskadee.  Kiskadee alleged that it was required to cover the suppliers losses
    to maintain a good working relationship with them.

[5]

Kiskadees claim depended almost entirely on the evidence of Latchman
    Narine, the owner of Kiskadee.  Specifically, unless Mr. Narines evidence was
    accepted, there was no evidence that Kiskadee had suffered any business losses
    as a result of an interruption of its telephone service in December 2010.

[6]

216 challenged virtually every aspect of Kiskadees case, although 216
    did acknowledge that it filled the hole in the basement of its unit with cement
    in December 2010.

[7]

The trial judge rejected Mr. Narines evidence in its entirety.  She
    gave several reasons for doing so.  She also concluded that although Kiskadee
    had lost phone service on the same day that the cement was poured in the
    basement of 216, Kiskadee had failed to prove causation.

The Grounds of Appeal

(i)

The trial judges rejection of Mr. Narines evidence

[8]

A consideration of this ground of appeal begins by recognizing the
    deference owed to the trial judges fact-finding, particularly when the
    fact-finding is based on a credibility assessment.  Counsel for the appellant
    submits that even taking into account that deference, the trial judges
    rejection of Mr. Narines evidence cannot stand.

[9]

In support of the submission that the trial judge erred in her
    assessment of Mr. Narines credibility, counsel offers fresh evidence on appeal. 
    That evidence challenges one of the principal grounds upon which the trial
    judge rejected Mr. Narines evidence.  In addition to the fresh evidence, counsel
    argues that some of the other bases upon which the trial judge rejected Mr.
    Narines evidence are tainted by material misapprehensions of the evidence, while
    still others reflect an unreasonable assessment of parts of his evidence.

[10]

Counsel for the respondent accepts that the evidence offered on appeal
    effectively removes one of the grounds upon which the trial judge rejected Mr.
    Narines evidence.  Counsel submits, however, that all of the other grounds,
    and there were many, withstand appellate scrutiny.  He contends that the many
    reasons advanced by the trial judge for rejecting Mr. Narines evidence provide
    ample justification for that rejection.   Counsel submits that had the fresh
    evidence been before the trial judge, her assessment of Mr. Narines
    credibility would inevitably have been the same.

[11]

We will address the fresh evidence first.  At trial, Mr. Narine
    identified certain documents as letters sent to him by his Caribbean suppliers
    identifying the produce that had been purchased on Kiskadees behalf.  These
    letters provided the foundation of Kiskadees damage claim as it related to its
    dealings with the Caribbean suppliers.  Some of the letters were dated and some
    were not.

[12]

Mr. Narine was cross-examined about certain fax dates on some of the
    letters.  Those dates were more than a year later than the dates of the letters. 
    The trial judge also questioned Mr. Narine about the differences in the dates. 
    Mr. Narine could offer no explanation for those differences.

[13]

The trial judge referred to the differences in the dates in some detail
    in her reasons (paras. 27-30).  She relied on those differences, and Mr.
    Narines inability to offer any explanation for them, in making a strong
    finding against Mr. Narines credibility and the provenance of the letters said
    to be from the suppliers.

[14]

The fresh evidence explains that the fax dates were placed on the
    documents in the course of the litigation.  Counsel for the respondent accepts
    this explanation.  Obviously, this explanation neutralizes any negative impact
    the difference between the fax dates and the dates of the letters might have on
    Mr. Narines credibility.

[15]

When a party puts evidence before the court of appeal, it is incumbent
    on that party to explain why the evidence was not put forward at trial.  As
    indicated above, Mr. Narine was specifically asked about the dates and had no
    explanation for them.

[16]

On appeal, counsel submits that Mr. Narine could not explain the fax
    dates because Kiskadee understood that counsel had agreed that all documents
    contained in the document briefs filed by both counsel were accepted as
    authentic, meaning they were what they appeared to be.  Consequently, Kiskadees
    witness, Mr. Narine, never turned his mind to the differences in the dates and was
    unable to answer the questions about those differences.

[17]

Counsel for 216 submits that the authenticity of the documents contained
    in the document briefs was not agreed upon at trial.  Counsel for 216 contends
    that it was agreed that the documents would be tendered without formal proof,
    but that it was open to opposing counsel to challenge the probative value and
    reliability of any specific document.  On counsel for 216s approach, the authenticity
    of a document is an aspect of its reliability.

[18]

At trial, both counsel filed document briefs containing the documents
    relied on by them.  The briefs were marked as exhibits.  Early in the trial,
    the trial judge inquired as to the basis upon which the documents were
    tendered.  Counsels responses were unclear.  The trial proceeded without
    further clarification.  Based on the submissions made in this court, it is
    apparent that counsel had very different understandings of the evidentiary
    basis upon which the document briefs were filed and marked as exhibits at
    trial.

[19]

The practice of filing document briefs at the outset of trial, containing
    the documents to be relied on by the parties, is a well-established one.  The
    practice is encouraged as it can significantly enhance trial efficiency. 
    However, trial efficiency is served only if counsel have a mutual and clear
    understanding of the evidentiary basis upon which the documents are tendered
    and communicate that understanding to the trial judge.  For example, describing
    a document as authentic can mean different things.  When tendering document briefs,
    counsel must take care to ensure that they have a common understanding of that
    term.  The definition of authenticity in rule 51.01 provides a helpful
    reference point.  Similarly, counsel should clearly distinguish between hearsay
    and non-hearsay uses of the contents of documents.  Specific documents may
    require further qualifications and explanations as to the agreed use of those
    documents.    Counsel would be well-advised to commit their shared
    understanding of the evidentiary basis upon which documents are admitted to
    writing and to file a copy of that agreement with the document briefs.

[20]

We are satisfied that the confusion over the basis upon which the
    document briefs were filed resulted in counsel for Kiskadee not turning his
    mind to the difference between the fax dates and the dates in the suppliers
    letters and the impact that difference might have on a consideration of the authenticity
    of the documents.  Had he done so, the explanation offered on appeal would have
    been put forward at trial.  In these circumstances, the failure to offer the
    explanation at trial should not preclude our consideration of the evidence on
    appeal.

[21]

The admissibility of the fresh evidence turns on whether that evidence,
    considered with the rest of the evidence adduced at trial, could be expected to
    have affected the result or, more specifically, could be expected to have
    affected the trial judges assessment of Mr. Narines credibility:  see
Ontario
    Federation of Anglers and Hunters v. Ontario (Ministry of Natural Resources)
,
    [2002] O.J. No. 1445, at para. 63.  If the answer is yes, the fresh evidence is
    admissible and a new trial must be ordered.  If the answer is no, the evidence
    is not admissible on appeal.

[22]

The fresh evidence eliminates one of the significant reasons the trial
    judge advanced to support her finding that Mr. Narine was an incredible
    witness.  However, her reasons contain some nine additional reasons for
    rejecting his evidence (see paras. 24-44).

[23]

Several of the trial judges reasons for rejecting Mr. Narines evidence
    are at least as significant to that assessment as is her finding in respect of
    the fax dates on the letters from some of the suppliers.  For example, the
    trial judge referred to Mr. Narines evidence that he could not telephone his
    Ontario suppliers because the telephone in his office did not work as an absurd
    explanation.  This characterization is justified.  The finding is particularly
    significant because it offers strong support for the trial judges broader
    finding that Mr. Narine seemed ready and willing to say whatever he thought would
    support his claim (para. 42).

[24]

In finding Mr. Narines evidence incredible, the trial judge also
    pointed to his evidence that while it was crucial to his business that his Caribbean
    suppliers be able to contact him at his office in a timely fashion, Mr. Narine
    made no efforts to contact those suppliers when he realized that they would be
    unable to contact him because of his telephone difficulties.  Mr. Narine testified
    that the Caribbean suppliers were not accessible and did not have telephones.  However,
    on the evidence offered by Kiskadee, Mr. Narine had telephone numbers, fax
    numbers and emails for at least some of those suppliers.  According to the
    phone records, Mr. Narine contacted some of those suppliers regularly (paras.
    31-33).  It was reasonably open to the trial judge to rely on this evidence in
    rejecting Mr. Narines testimony that he had no way of communicating with his
    Caribbean suppliers because the phone in his office was not working.  Mr.
    Narines evidence that he could not communicate with his Caribbean suppliers,
    and had to wait for their calls, was crucial to Kiskadees business loss claim
    as it related to the Caribbean suppliers.

[25]

The trial judge also referred to the total absence of any documentation
    to support the losses claimed by Mr. Narine to support her conclusion that his
    evidence was unbelievable (paras. 37-38).  For example, Mr. Narine testified
    that he made repayments of over $48,000 to a supplier named Lopez, without any
    documents from the supplier to back up the claim.  Indeed, on Mr. Narines
    evidence, Kiskadee began to repay Mr. Lopez before Mr. Lopez even claimed a
    loss (para. 38).  Once again, it was open to the trial judge to reject Mr.
    Narines explanation about the losses suffered by Mr. Lopez and to factor that
    rejection into her ultimate assessment of Mr. Narines credibility as it
    related to the claimed losses.

[26]

The trial judge also rejected Mr. Narines evidence because Bell Canada telephone
    bills he relied on to show that Kiskadee had no phone service at the relevant
    time related to an entirely different timeframe (para. 41).  The trial judge
    was entitled, in assessing Mr. Narines credibility, to consider this attempt
    to put forward documents as supporting the claim when in fact they did no such
    thing.

[27]

Considering the reasons as a whole, we are satisfied that there remained
    strong grounds upon which to reject Mr. Narines evidence even in the face of the
    evidence offered on appeal.  That evidence could not reasonably be expected to
    have affected the negative assessment of Mr. Narines credibility.

[28]

Apart from the fresh evidence, counsel for Kiskadee argued that the
    trial judge made factual errors in her assessment of Mr. Narines credibility
    and that some of the reasons she gave for rejecting his evidence were
    unreasonable.

[29]

We cannot agree.  We see no error in the material factual findings
    underlying the trial judges credibility assessment.  As to her reasons for
    finding Mr. Narine incredible, we accept that some of the negative inferences
    drawn by the trial judge may not have been drawn by other trial judges.  None
    of those inferences, however, fall outside of the broad spectrum of inferences reasonably
    available to the trial judge.  We must defer to those inferences in matters of
    credibility.

[30]

We would not interfere with the trial judges assessment of Mr. Narines
    credibility.  Based on that assessment, Kiskadees claim could not succeed.

(ii)

The trial judges interventions

[31]

Counsel for Kiskadee submits that the trial judges repeated
    interventions,
particularly during Mr. Narines
    cross-examination, require a new trial.  Counsel argues that the interventions
    created the appearance that the trial judge was not impartial, but had placed
    the weight of her office against
Kiskadees claim
. 
    Counsel submits that the trial judges interventions made the trial unfair
.


[32]

During the trial, and particularly during Mr. Narines
    evidence, the trial judge interrupted the questioning of counsel with her own
    questions on many occasions.  Most of the interruptions were benign and some
    were helpful.  For example, some of the trial judges questions sought
    clarification of answers given by Mr. Narine or were designed to expedite the
    progress of the trial.

[33]

Some of the trial judges questions of Mr. Narine were,
    however, improper.  On a few occasions, the trial judge cross-examined Mr.
    Narine.  Those kinds of questions should come from counsel and not the trial
    judge.  On one or perhaps two occasions, the trial judges questioning is
    properly described not only as cross-examination, but as aggressive
    cross-examination.  On those occasions, the trial judges questions could
    reasonably be seen as conveying to Mr. Narine the trial judges disbelief of
    the answers Mr. Narine had already given.  Our adversarial process has no place
    for this kind of questioning by a trial judge.

[34]

The trial judges cross-examination of Mr. Narine, especially
    on the one or two occasions when that cross-examination became aggressive,
    served no legitimate trial purpose and jeopardized the appearance of the fairness
    of the trial.  The trial judge should not have asked those questions.

[35]

Not every improper question by a trial judge
    necessitates reversal on appeal.  The question must be whether the
    interventions, considered in the context of the entirety of the proceedings,
    were sufficiently egregious to lead the reasonable observer to conclude that
    the appearance of impartiality had been sufficiently compromised so as to
    undermine the appearance of the fairness of the trial.

[36]

After anxious consideration, we are satisfied that the
    trial judges questions did not reach the point at which they compromised the
    appearance of the fairness of the trial.  As indicated above, some of the
    interventions were appropriate.  Most that were unnecessary were harmless.  The
    isolated instances in which the trial judges questioning took on the tone of
    aggressive cross-examination did not, standing alone, compromise what was, in
    all other respects, a fair trial.

(iii)

Causation

[37]

Counsel submitted that the trial judge made a serious factual error when
    she found that
Kiskadee had failed to show that
    the telephone cable servicing its units ran under the basement floor of 216.  The
    trial found that without evidence that the cable ran under 216,
Kiskadee
could not prove causation (paras. 58-60).

[38]

The evidence of the Bell Canada employee who
    testified for
Kiskadee was unclear.  It is, however, arguable that his
    evidence established a link between the telephone cable running into and underneath
    the basement floor of 216 and the telephone service to Kiskadees units in the
    building.

[39]

In any event, any error by the trial judge in her causation finding
    could have no effect on the result.  Her total rejection of Mr. Narines
    evidence left Kiskadee with no evidence capable of establishing that Kiskadee
    had suffered any loss as a result of the interference with its telephone
    service.

Conclusion

[40]

The appeal is dismissed.
Costs to 216 in
    the amount of $22,000, inclusive of disbursements and relevant taxes.

Released:   DD  DEC 19
    2016

Doherty
    J.A.

J.C.
    MacPherson J.A.

P.
    Lauwers J.A.


