



COURT OF APPEAL FOR ONTARIO

CITATION: Filanovsky v. Filanovsky, 2017 ONCA 28

DATE: 20170117

DOCKET: C57747

Strathy C.J.O., MacPherson and Hourigan JJ.A.

BETWEEN

Victoria Filanovsky

Plaintiff
(Appellant on Appeal)

and

Igor Filanovsky and Tatyana Filanovsky

Defendants
(Respondents on Appeal)

Joseph W.L. Griffiths, for the appellant

J.L. Lee Mullowney, for the respondents

Heard: January 11, 2017

On appeal from the judgment of Justice
Bonnie
    R. Warkentin
of the Superior Court of Justice, dated September 13, 2013.

ENDORSEMENT


[1]

The appellant, who was 45 years old at the time
    of trial, sued her parents for alleged physical and emotional abuse while she
    was a child. Her claim alleged violent and repeated blows to her face and head,
    resulting in traumatic brain injuries.

[2]

The trial judge dismissed her claim, after a
    10-day trial, which included evidence from multiple witnesses, including: the
    appellant, her mother and father; the appellants brother; expert witnesses on
    both sides; four witnesses whose evidence was adduced by the appellant by way
    of affidavits and answers to written questions; and three witnesses whose
    evidence was adduced by the respondents in the same fashion.

[3]

The trial judge expressed significant doubt
    about the veracity of the appellants allegations and found the evidence of the
    respondents and the appellants brother more credible, considering all the
    evidence. She concluded that the appellant had failed to establish her claim on
    a balance of probabilities.

[4]

The appellant submits the trial judge made three
    errors which require a new trial.

[5]

First, she submits that the trial judge failed
    to consider the core issue of whether she was subjected to physical abuse by
    her father and instead focused on whether she reported the alleged abuse.

[6]

We do not accept this submission. The appellant
    herself adduced affidavit evidence of third parties to whom she had allegedly
    reported the abuse when she was a child. One affiant, a former teacher,
    reported seeing a small bruise on the appellants neck. Another, a former
neighbour
, once saw the appellant with a black eye. A former schoolmate saw
    bruises on the appellants forearms on one occasion. The appellant told her
    schoolmate and her teacher that her parents were responsible for the bruises.

[7]

None of these witnesses reported that they actually
    observed violence. Nor did they observe any conflict between the appellant and
    her parents. As the trial judge noted, their evidence was confined to what the
    appellant reported to them about conflict in the home and their observations of
    the appellant. Having concluded that the appellants evidence was unreliable,
    the trial judge was entitled to discount the third party evidence, as she
    clearly did, because it was based on the appellants self-reporting.

[8]

In response, the respondents adduced the
    affidavit of a police officer who, in 2003 and 2007, had investigated complaints
    of assault made by the appellant (and had interviewed both the teacher and the
neighbour
) and had closed his file after concluding that there was no
    evidence of any
assaults
having occurred.

[9]

It was incumbent on the trial judge to review the
    evidence concerning reports of abuse and she did so. It did not, however,
    divert her attention from the core issue of whether abuse had in fact occurred.
    The trial judge rightly focused on the evidence of the parties and the
    appellants brother and the expert evidence adduced by both sides. She noted
    that there was nothing in the appellants medical history to corroborate her
    claims. After hearing all the evidence, she rejected the appellants evidence
    and accepted the respondents.

[10]

Second, the appellant submits the trial judge
    failed to provide adequate reasons, to explain why her claim was dismissed and
    to provide a basis for appellate review.

[11]

We reject this submission.

[12]

Reasons are necessary: (a) to justify and
    explain the result; (b) to explain to the losing party why she lost; (c) to
    provide public accountability and to satisfy the public that justice has been
    done; and (d) to permit appellate review. See
R. v. Sheppard
(2002), 162 C.C.C. (3d).

[13]

The sufficiency of reasons is not a
    free-standing ground of appeal. If the reasons do not permit meaningful
    appellate review, appellate intervention may be justified: see for example,
Dovbush v. Mouzitchka
, 2016 ONCA 381,
    at para. 22.

[14]

Here, the trial judge gave lengthy reasons, in
    which she analyzed the evidence of all witnesses. She found inconsistencies in
    the appellants evidence, a lack of support for her claim in the evidence of
    her affiant witnesses and in her own medical history, and found the evidence of
    the respondents consistent and compelling. In a case in which credibility was
    the core issue, it is plain from the reasons that the trial judge found that
    the appellants evidence was simply not credible.

[15]

In our view, the reasons permit meaningful
    appellate review and we dismiss this ground of appeal.

[16]

Third, the appellant submits the trial judge misapprehended
    portions of the evidence, failed to appreciate relevant evidence and made
    findings of fact that were not based on the evidence. The appellant has failed
    to identify any such error that, individually or taken together with the
    others, would rise to the level of a palpable and overriding error in the trial
    judges assessment of the evidence.

[17]

For these reasons, we dismiss the appeal with
    costs fixed at $10,000, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

C.W. Hourigan J.A.


