ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT. MORAWETZ R.S.J., WHITTEN and GRAY JJ. ) ) Respondent ) ) ) ) ) ) ) Respondents )

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1 CITATION: Zaravellas v. City of Toronto, 2018 ONSC 4047 DIVISIONAL COURT FILE NOS.: 316/16 and 317/16 DATE: ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MORAWETZ R.S.J., WHITTEN and GRAY JJ. BETWEEN: COURT FILE NO: 316/16 MIKE ZARAVELLAS Appellant and CITY OF TORONTO Respondent COURT FILE NO: 317/16 AND BETWEEN: MIKE ZARAVELLAS Appellant and GARRY ARMSTRONG and THE TORONTO TRANSIT COMMISSION Respondents Daniel J. Holland and Silen M. Malhao, for the Appellant Hillel David, for the Respondent, City of Toronto Daniel J. Holland and Silen M. Malhao, for the Appellant Stephen Sargent, for the Respondents, Garry Armstrong and the Toronto Transit Commission 2018 ONSC 4047 (CanLII

2 Page: 2 HEARD at Toronto: June 26, 2018 MORAWETZ R.S.J. (Orally [1] This is an appeal from a decision of Akhtar J. dated June 3, From a procedural standpoint, there are actually two appeals. The first relates to the action where the City of Toronto is the defendant/respondent in appeal. The second is the action where Garry Armstrong and the Toronto Transit Commission are the defendants/respondents in appeal. [2] The Appellant requests that the judgment of Akhtar J. be set aside and that the matter be sent back for a new trial on the issue of liability and assessment of damages. [3] The Appellant raises a lengthy list of errors: 2018 ONSC 4047 (CanLII (1 Did Akhtar J. s factual findings based on the Appellant and Mr. Armstrong s evidence contain palpable and overriding errors? (2 Did Akhtar J. s finding that the Appellant was the sole cause of the TTC injury a palpable and overriding error? (3 Did Akhtar J. s treatment of Mr. Kodsi s evidence create unfairness? (4 Did Akhtar J. make palpable and overriding errors on causation? (5 Did Akhtar J. commit a palpable and overriding error by drawing an adverse inference on the Appellant s failure to call expert evidence on causation? (6 Did Akhtar J. commit a palpable and overriding error in finding any potential psychological injuries were too remote? (7 Did Akhtar J. fail to apply the thin-skull principle? (8 Did Akhtar J. commit a palpable and overriding error in finding that the Appellant s other disability claims were not dispositive of his disability? (9 Did Akhtar J. commit a palpable and overriding error in considering Dr. Hoffman s evidence? (10 Did Akhtar J. commit a palpable and overriding error in concluding the Appellant could misled numerous medical experts that treated him? (11 Did Akhtar J. commit a palpable and overriding error in assessing the Appellant s evidence? (12 Did Akhtar J. commit a palpable and overriding error in calculating pecuniary losses?

3 Page: 3 (13 Did Akhtar J. commit a palpable and overriding error in determining that the sidewalk was not in a state of disrepair at the time of the accident? (14 Did Akhtar J. commit a palpable and overriding error in determining that the City s maintenance policy was reasonable? (15 Did Akhtar J. commit a palpable and overriding error in determining the Appellant had not proven gross negligence? (16 Did Akhtar J. commit a palpable and overriding error in not drawing an adverse inference from the City s failure to call the contractor? and (17 Did Akhtar J. err in not considering the Appellant s psychological damages from the City accident? 2018 ONSC 4047 (CanLII [4] In our view, the Appellant s issues are overwhelmingly and almost exclusively allegations of factual errors by the trial judge. [5] While many of the arguments avert to the legal test, we are of the view that the Appellant s issue is that the facts (as the Appellant would like them to be have not been properly applied to the legal test. [6] In our view, it would not be unfair to characterize the Appellant s argument as specific examples of an overall argument that Akhtar J. made palpable and unreasonable fact findings, in particular by finding the Appellant not to be a credible witness. [7] In a very detailed judgment, Akhtar J. reviewed the evidence in detail and in particular the evidence of the plaintiff. The trial judge made a number of credibility findings with respect to the evidence of the plaintiff. See, for example commencing at [22] and again at [98] of the trail judgment. [8] At [129], the trial judge concludes For reasons made clear in several parts of this judgment, I find the plaintiff to be severely lacking in credibility. In our view, the record was such that it was open to the trial judge to make credibility findings that were adverse to the plaintiff. On the other hand, it was open to the trial judge to accept the evidence of Mr. Armstrong. [9] The findings of fact made by the trial judge are entitled to deference from this reviewing court. In our view, there is no basis to accept the Appellant s argument that the trial judge has made a palpable and overriding error in his findings of fact. [10] In addition to issues relating to findings of fact, the Appellant raised a legal issue namely whether the trial judge failed to apply the thin-skull principle. [11] In our view, a complete answer to this argument is provided in the factum of counsel to the Toronto Transit Commission at [54] and [55] which read as follows:

4 Page: The thin-skull rule does not subvert the other principles of causation. The Appellant failed to meet his burden of proof that his alleged injuries were caused by negligence and reasonably foreseeable. The Trial Judge correctly acknowledged that, if the Appellant was able to establish negligence and causation, the Defendant TTC would have to take him as it found him in compensating him for damages. However, the other elements required of a successful damages claim were not met. 55. The thin-skull principle applies to an assessment of the extent of the harm for which the tortfeasor is responsible. The Appellant s submissions err by not recognizing that it is a separate consideration related to damages only once causation in fact and law have already been established ONSC 4047 (CanLII [12] The case with respect to the City requires a review of the findings of the trial judge at [169] - [175]. There were no witnesses to the slip and fall. On the issue as to whether there was gross negligence on the part of the City in maintaining the sidewalk, the trial judge based his conclusion on metrological records, the maintenance system utilized by the City and as well, the inappropriate footwear worn by the plaintiff. The trial judge concluded that the City was not grossly negligent. [13] The findings of fact that trial judge on this issue are entitled to deference and we decline to interfere with his findings. [14] In the result, both the appeals with respect to the City of Toronto and with respect to Mr. Armstrong and the Toronto Transit Commission are dismissed. [15] I have endorsed the Appeal Book and Compendium, Court File No. 316/16 as follows: This appeal is dismissed with costs in the agreed upon amount of $5,500.00, all-inclusive, for this appeal. [16] I have endorsed the Appeal Book and Compendium, Court File No. 317/16 as follows: This appeal is dismissed with costs in the agreed upon amount of $5,000.00, all-inclusive, for this appeal. MORAWETZ R.S.J. I agree WHTTEN J.

5 Page: 5 I agree GRAY J. Date of Reasons for Judgment: June 26, 2018 Date of Release: June 29, ONSC 4047 (CanLII

6 CITATION: Zaravellas v. City of Toronto, 2018 ONSC 4047 DIVISIONAL COURT FILE NOS.: 316/16 and 317/16 DATE: ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MORAWETZ R.S.J., WHITTEN and GRAY JJ. BETWEEN: COURT FILE NO: 316/ ONSC 4047 (CanLII MIKE ZARAVELLAS and CITY OF TORONTO Appellant Respondent COURT FILE NO: 317/16 AND BETWEEN: MIKE ZARAVELLAS Appellant and GARRY ARMSTRONG and THE TORONTO TRANSIT COMMISSION Respondents ORAL REASONS FOR JUDGMENT MORAWETZ R.S.J. Date of Reasons for Judgment: June 26, 2018 Date of Release: June 29, 2018

7 Page: ONSC 4047 (CanLII