



COURT OF APPEAL FOR ONTARIO

CITATION: Eks v. Tadeu, 2020 ONCA 425

DATE: 20200630

DOCKET: C67195

Feldman, Fairburn and Nordheimer
    JJ.A.

BETWEEN

Susan Elizabeth Eks

Plaintiff/Defendant to Counterclaim
(Respondent)

and

Kerri Lynn Tadeu

Defendant/Plaintiff by Counterclaim
(Appellant)

Christopher Du Vernet and Carlin
    McGoogan, for the appellant

David M. Adams and Matthew E. Taft,
    for the respondent

Heard: In writing

On appeal from the judgment of Justice Graeme
    Mew of the Superior Court of Justice, dated June 17, 2019, with reasons
    reported at 2019 ONSC 3745.

REASONS FOR DECISION

[1]

Ms. Tadeu appeals from the trial judgment in which
    the respondents claim was dismissed as was the appellants counterclaim. It is
    the dismissal of the appellants counterclaim that is in issue in this appeal.

[2]

There is an unfortunate history between these
    two parties, who were neighbours, that involved the respondent, at one point, vandalizing
    the appellants home. This occurred after an earlier physical confrontation
    between the two.

[3]

The respondent was charged with criminal
    offences arising out of these incidents. She eventually pleaded guilty to the
    offences, received a suspended sentence and probation, and moved out of the
    neighbourhood.

[4]

A few years later, the appellant saw the
    respondent in her neighbourhood. The respondent was waiting outside the home of
    a friend of hers. The respondent said that she was picking up her friend in
    order to go and visit a mall. The appellant said that the respondent stared at
    her intently when she saw her.

[5]

The police were called but determined that there
    was no conduct that required their action. The appellant then sought a peace
    bond against the respondent. The request for the peace bond was dismissed when
    the appellant failed to appear for the hearing.

[6]

The respondent then commenced this action
    against the appellant alleging malicious prosecution, harassment and other
    claims. The appellant counterclaimed for intentional infliction of mental
    distress, negligence and other claims.

[7]

The trial was conducted as a summary trial. At
    its conclusion, the trial judge dismissed both the claim and the counterclaim. In
    detailed reasons, the trial judge concluded that none of the claims advanced by
    the respondent were made out. The trial judge also concluded that none of the
    claims by the appellant were made out. In this latter regard, the trial judge
    expressly rejected the evidence of a psychologist called by the appellant. He
    was critical of the psychologist for having rendered an opinion, in these
    circumstances, without having reviewed the appellants medical records.

[8]

In our view, the trial judge was entitled to
    reach the conclusion that he did respecting the psychologists evidence. The
    appellant also complains that the trial judge failed to consider the report of
    a psychiatrist which the insurer for the appellants employer had obtained
    which she says supported the psychologists evidence. The trial judge was not
    required to consider the psychiatrists report because it was not properly in
    evidence before him. The report was simply filed (it is not clear on what
    basis) and the psychiatrist was not called.

[9]

The appellants argument, at its core, is a
    quarrel with the trial judges factual findings. There does not appear to be
    any dispute (with perhaps one exception) that the trial judge correctly
    articulated the component parts of the various causes of actions that the
    appellant asserted. He then found that the facts did not sustain any of those
    causes of action. The trial judge was entitled to come to those conclusions. It
    is not for this court to interfere with those findings of fact absent palpable
    and overriding error, of which none is shown here.

[10]

The possible exception is with respect to the
    appellants complaint that the trial judge erroneously concluded that the
    appellant had failed to articulate the duty of care that she alleged regarding her
    negligence claim. He said, at para. 140:

It is not sufficient to throw the words
    "negligence", "nuisance", "intimidation" and
    "interference with enjoyment of property" into a prayer for relief,
    but then not articulate what duty was owed.

[11]

Assuming without deciding that the trial judge imposed
    too high a burden on the appellants pleading, that does not change the fact
    that the trial judge concluded that the facts did not sustain a finding of
    negligence, however one might articulate the duty of care.

[12]

Finally, the appellant complains that the trial
    judge did not grant a permanent injunction against the respondent to ensure
    that the respondents conduct was not repeated. The trial judges decision on
    this relief was a matter entirely within his discretion. The appellant has not
    demonstrated any basis for this court to interfere with the manner in which the
    trial judge chose to exercise his discretion.

[13]

The appeal is dismissed with costs fixed at
    $3,500 inclusive of disbursements and HST.

K.
    Feldman J.A.

Fairburn
    J.A.

I.V.B.
    Nordheimer J.A.


