



COURT OF APPEAL FOR ONTARIO

CITATION: Salisbury v.
    Litman, 2015 ONCA 357

DATE: 20150515

DOCKET: C58023

Weiler, Cronk and Pepall JJ.A.

BETWEEN

Glynis Salisbury by her Litigation Guardian,
    Donna Salisbury

Plaintiff (Appellant)

and

Orin Litman

Defendant (Respondent)

Jane Poproski, for the appellant

Hugh M. Mackenzie and Kirryn G. Hashmi, for the
    respondent

Heard and released orally: May 13, 2015

On appeal from the judgment of Justice James C. Kent of
    the Superior Court of Justice, dated November 6, 2013.

ENDORSEMENT

[1]

The appellant was seriously injured in a motor scooter accident in
    Mexico in January 1997 as a result of which she suffered serious brain
    injuries. She had to have an operation that removed a significant portion of
    her right temporal lobe.

[2]

In April, 2000, the appellant served the respondent with a statement of
    claim in which she pleaded that she and her then boyfriend:

each were driving their own rented motor scooter on a road on
    their way to a day of snorkelling when suddenly and without warning the
    Defendant who had been travelling behind the Plaintiff caused his scooter to
    collide with the Plaintiffs scooter causing the Plaintiff to lose control of
    her scooter and as a result, was thrown off her scooter and landed on the
    ground.

[3]

At the trial held in 2013, 16 years after the date of the accident, the
    appellant provided a different account of events. She testified that the
    respondent caused the accident when a strap connected to a bag on the back of
    his scooter caught her handlebar as he passed her and caused her to lose
    control of her scooter resulting in her injuries.

[4]

At trail, a major issue was the reliability of the appellants memory. The
    trial judge found that the appellant was an honest witness but he dismissed the
    action on the basis that he was not satisfied she had proven that the
    respondent caused or contributed to the accident.

[5]

On appeal the appellant makes three main submissions:

1)

The trial judge erred in failing to exclude the evidence of the defence
    expert Dr. Duncan and, as a result, erred in his assessment of the reliability
    of the appellants evidence.

2)

The trial judge failed to recognize that the defendant failed to meet his
    onus of proof with respect to his claim that the appellant suffered from
    retrograde amnesia.

3)

The trial judge failed to apply the appropriate standard of proof in a
    civil case and, in that respect, ignored or failed to appreciate aspects of the
    evidence.

[6]

Dealing with the first submission, we do not accept that the trial judge
    erred in relying on the evidence of Dr. Duncan regarding the appellants brain
    injuries and the consequences of those injuries. Dr. Duncan testified that loss
    of a portion of the right temporal lobe of the brain implicates memory function
    and there would be substantial retrograde amnesia with an injury of this
    nature. The fact that he did not provide an opinion on the validity of
    recovered memories did not detract from his expertise on the nature and
    consequences of the appellants brain injuries. The trial judge did not err in
    relying on Dr. Duncans evidence.

[7]

Nor did the trial judge err in considering all the evidence bearing on
    the reliability of the appellants version of events. Indeed, the trial judge
    was obliged to consider the whole of the evidence on this issue.

[8]

Overall, we see no error in the trial judges assessment of the
    reliability of the appellants evidence. We note that the trial judges misdescription
    of the type of assessment conducted by one of the appellants experts is of no
    moment. The trial judge accurately described the substance of the witnesss
    evidence and the nature of her opinion.

[9]

Turning now to the second issue, contrary to the assertion of counsel
    for the appellant that the respondent was obliged to lead evidence as to how
    the accident happened, it was the appellants onus throughout to establish
    causation and the reliability of her account of events. At the end of the day,
    the trial judge concluded that the appellant had not met this onus because she
    failed to establish that the respondent either caused or contributed to the
    accident. Moreover, the trial judge expressly applied a balance of probability
    standard in determining whether the appellants account was more probable than
    not. The trial judges use of the word doubt must be read in that context. Read
    as a whole, his reasons reflect no error in the application of the correct
    standard of proof.

[10]

Third,
    the trial judges factual findings on the issue of causation, i.e. on the
    presence of bags at the time of the incident and on the question of whether the
    respondent passed the appellant on his scooter at the critical time, are
    findings of fact that were open to him on the evidentiary record. His
    assessment of the evidence and the weight to be attached to it are entitled to
    deference. We see no palpable and overriding error in his findings.

[11]

Accordingly,
    the appeal is dismissed. Costs of the appeal fixed in the amount of $7,500
    inclusive of disbursements and all applicable taxes are payable to the
    respondent.

K.M.
    Weiler J.A.

E.A.
    Cronk J.A.

S.E.
    Pepall J.A.


