



COURT OF APPEAL FOR ONTARIO

CITATION: Kay v. Caverson, 2013 ONCA 220

DATE: 20130405

DOCKET: C54646

Doherty, Rouleau and Epstein JJ.A.

BETWEEN

Diane Kay

Plaintiff (Appellant/

Respondent by way of cross-appeal)

and

Gerard Caverson, Guliana
    DOrazio Caverson, also known as Julie Caverson
, The Corporation of the
    City of Mississauga, and M & I Contracting Inc.

Defendants (Respondents/

Appellants by way
    of cross-appeal
)

and

Namroud
    Khachi and Architectural Technology Services

Third Parties

James A. Kay, for the
    appellant

Brian E. Lucas,
    for the respondents Gerard Caverson and Guliana DOrazio Caverson, also known
    as Julie Caverson

Scott E. Hamilton, for the
    respondent The Corporation of the City of Mississauga

Julian Binavince, for the
    respondent M & I Contracting Inc.

No one appearing for the
    third parties

Heard and released
    orally: April 3, 2013

On appeal from the judgment of Justice Peter A. Daley of
    the Superior Court of Justice, dated August 11, 2011, with reasons reported at
    2011 ONSC 4528.

ENDORSEMENT

[1]

The appellant appeals the dismissal of her claim and the award of costs
    to the respondents. The Caverson respondents seek leave to cross-appeal on the
    issue of costs and, if leave is granted, cross-appeal the award of costs.

[2]

The claim arose out of an alleged increase in flow and collection of
    water from the Caversons property onto the appellants property. This water is
    said to have caused extensive damage to the appellants home.

[3]

The appellant raises several grounds of appeal from the judgment
    dismissing her claims. These can be summarized as follows:

1.

the trial judge
    erred in his credibility findings;

2.

the trial judge
    was biased and deprived the appellant of a full and fair hearing;

3.

the trial judge
    misapprehended the evidence, erred in his analysis of the law and erred in the
    application of the law to the facts; and

4.

the trial judge
    erred in his award of costs.

[4]

In our view, the appeal should be dismissed. In his reasons, the trial
    judge carried out a thorough review of the evidence, and his factual findings 
    including an adverse finding as to the appellants credibility  are well
    supported in the record.

[5]

The appellant submits that the trial judge ought not to have rejected
    the appellants evidence. Specifically, she argues that the trial judge erred
    in his interpretation of the Supreme Court of Canadas decision in
British
    Columbia (Attorney General) v. Malik
, 2011 SCC 18, [2011] 1 S.C.R. 657. We
    would not give effect to this submission. Assuming (without deciding) that the
    trial judge erred in his application of the principles in
Malik,
it is
    clear from his reasons that he would have rejected the appellants evidence
    even without referring to the negative credibility findings made by Murray J.
    in another action involving the appellant and Julie Caverson. The trial judges
    reasons show that he found the appellants testimony to be inaccurate,
    inconsistent with the documentary evidence and exaggerated.

[6]

We also see no merit in the suggestion that the trial judge was biased.
    The transcript references cited by the appellant by and large show nothing more
    than the trial judge curtailing the frequent, and largely inappropriate,
    interruptions of the appellant. We further see nothing wrong with the way the
    trial judge dealt with the improper letter sent by the appellant to the trial
    judge during the course of the trial. Nothing in the record before us suggests
    that the trial judge conducted himself inappropriately or in such a way as to
    give rise to a reasonable apprehension of bias towards the appellant or her
    trial lawyer.

[7]

We moreover see no merit in the other grounds of appeal. In any event,
    because the appellants case hinged almost exclusively on the appellants
    testimony, once the trial judge rejected her testimony, the claim could not
    succeed.

[8]

As to the appellants appeal of the cost award, costs normally follow
    the result and the trial judges determination as to costs and the proper
    amount of costs is entitled to deference. The appellant has not demonstrated
    any error in that regard.

[9]

Turning to the Caversons cross-appeal, they submit that the trial judge
    erred in failing to award costs on a substantial indemnity scale, either
    pursuant to the factors set out in rule 57.01(1) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, or because of the Rule 49 offer to
    settle made by the Caversons prior to trial. Again, the trial judges decision
    on costs is entitled to deference. The trial judges reasons on costs are
    detailed and show that he considered the positions of the parties and all of
    the relevant factors and evidence, including the offer to settle. As stated by
    the trial judge, the decision not to award substantial indemnity costs was a
    close call. In our view, it was his to make and we see no basis on which to
    interfere.

[10]

For
    these reasons, the appeal is dismissed and the application for leave to cross-appeal
    the cost award is dismissed.

[11]

With
    respect to the costs of the appeal, and having regard to the refusal to grant
    leave to cross-appeal the cost award below, it is our view that an appropriate
    award of costs to the Caversons is $13,000 inclusive of disbursements and relevant
    taxes. In respect of the respondent the City of Mississauga, the cost award is in
    the amount of $9,000 inclusive of disbursements and relevant taxes; in the case
    of the respondent M & I Contracting Inc., the cost award is in the amount
    of $8,000 inclusive of disbursements and relevant taxes.

D. Doherty J.A.

Paul Rouleau J.A.

Gloria Epstein J.A.


