Date: 20021122
Docket: A-352-01
Neutral citation: 2002 FCA 465
CORAM: LINDEN J.A.
SEXTON J.A.
BETWEEN:
BAY OCEAN MANAGEMENT INC.
and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "LAKE CHARLES"
Appellants
- and -
GRAVEL AND LAKE SERVICES LIMITED
Respondent
Heard at Toronto, Ontario, on Wednesday, November 20, 2002.
Judgment delivered from the Bench at Toronto, Ontario, on Wednesday, November 20, 2002.
REASONS FOR JUDGMENT OF THE COURT: SEXTON J.A.
Date: 20021122
Docket: A-352-01
Neutral citation: 2002 FCA 465
SHARLOW J.A.
BETWEEN:
BAY OCEAN MANAGEMENT INC.
and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "LAKE CHARLES"
Appellants
- and -
GRAVEL AND LAKE SERVICES LIMITED
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario,
on Wednesday, November 20, 2002)
SEXTON J.A.
[1] The Appellants' appeal from the judgment of Lemieux J. of the Trial Division who concluded that the Respondent's tug, the Robert John, was grounded and damaged while assisting the Appellants' ship (Lake Charles) to manoeuver in a river. The Trial Judge found that both parties were negligent but that the fault of those in control of the Lake Charles was more significant and serious, as a result of which he apportioned fault for the grounding at 75% to the Lake Charles and 25% to the Robert John. He then went on to assess the damages of the Respondent (the plaintiff at trial).
[2] With respect to damages, the Trial Judge determined that only $ 177 846.00 out of the total claimed by the Respondent at trial, namely $ 242 174.70, would be subject to the apportionment on liability.
[3] On the appeal, the Appellants conceded that a grounding had occurred but argued that the fault lay solely with the people in charge of the tug Robert John. Alternatively, the Appellants argued that the Trial Judge wrongly apportioned liability and that his findings in respect of many of the issues on damages were in error.
[4] The Appellants' very lengthy arguments were virtually all related to the findings of fact by the Trial Judge.
[5] It has been made abundantly clear by the Supreme Court of Canada that findings of fact made at a trial are not to be reversed unless it can be established that the trial judge made some palpable and overriding error which affected his assessment of the facts.
Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802
N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247
[6] The most recent pronouncement by the Supreme Court of Canada reiterates this theme. In Housen v. Nikolaisen, [2002] SCC 3 (March 28, 2002), the Court indicated that trial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence. A Court of Appeal is not entitled to interfere merely because it takes a different view. The Court said:
Although the trial judge will always be in a distinctly privileged position when it comes to assessing the credibility of witnesses, this is not the only area where the trial judge has an advantage over appellate judges. Advantages enjoyed by the trial judge with respect to the drawing of factual inferences include the trial judge's relative expertise with respect to the weighing and assessing of evidence, and the trial judges inimitable familiarity with the often vast quantities of evidence. This extensive exposure to the entire factual nexus of a case will be of invaluable assistance when it comes to drawing factual conclusions. In addition, concerns with respect to cost, number and length of appeals apply equally to inferences of fact and findings of fact, and support a deferential approach towards both. As such, we respectfully disagree with our colleague's view that the principle rationale for showing deference to findings of fact is the opportunity to observe witnesses first-hand. It is our view that the trial judge enjoys numerous advantages over appellate judges which bear on all conclusions of fact, and, even in the absence of these advantages, there are other compelling policy reasons supporting a deferential approach to inferences of fact. We conclude, therefore, by emphasizing that there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge - that of palpable and overriding error.
(Emphasis added)
[7] On the issue of apportionment of liability, the Supreme Court has indicated that the findings of a trial judge should not be disturbed unless it can be clearly shown that the trial judge's conclusion was based on an error in law or a mistaken conclusion of fact.
The Ship "Pacific Wind" v. Johnson et al [1967] S.C.R. 54 at 58-59.
[8] On the appeal, the Appellants argued that certain items of damage which it had not expressly contested at trial should nevertheless be disallowed. We are of the view that it is not fair to the Respondent to allow such new matters to be raised on appeal.
Ibottson v. Kushner [1978] 2 S.C.R. 858.
[9] With respect to the issue of damages, the Respondent at trial conceded that its claim should be reduced by $ 7000.00 by reason of the fact that certain items which appear in one of the invoices should not be charged to the Appellants. It is not clear from the Reasons of the Trial Judge that the $ 7000.00 was deducted. On the appeal, the Respondent conceded that it would be proper to reduce the assessment of damages by this amount.
[10] On all the other issues, we are unable to conclude that there is any palpable and overriding error in the reasons of the Trial Judge. The Trial Judge in this case directed himself correctly as to the law, made an extensive evaluation of the evidence and considered the relevant factors, all in a careful and reasoned manner.
[11] We are therefore of the view that the award of damages should be reduced to $128 134.50 but that the appeal should be dismissed in all other respects.
[12] Having regard to the fact that the Respondent has substantially succeeded in the appeal, double costs under Column III should be awarded to the Respondent because of the settlement offer made by the Respondent.
"J. E. Sexton"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: A-352-01
STYLE OF CAUSE: BAY OCEAN MANAGEMENT INC. and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "LAKE CHARLES"
Appellants
- and -
GRAVEL AND LAKE SERVICES LIMITED
Respondent
DATE OF HEARING: WEDNESDAY, NOVEMBER 20, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY:SEXTON, J.A.
DATED: FRIDAY, NOVEMBER 22, 2002
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON WEDNESDAY, NOVEMBER 20, 2002.
APPEARANCES BY: Ms. Daniele Dion
Mr. David Colford
For the Appellants
Mr. George Strathy
Ms. Amy Pressman
For the Respondent
SOLICITORS OF RECORD: Brisset Bishop
2020 University
Ste 444
Montreal, Quebec H3A 2A5
For the Appellants
Strathy & Richardson
24 Duncan St, 3rd Floor
Toronto, Ontario
M5V 2B8
For the Respondent