CITATION: Rojer v. Dorel Juvenile Group, Inc., 2011 ONCA 458
	DATE: 20110616
DOCKET: C52301
COURT OF APPEAL FOR ONTARIO
Goudge, MacFarland and Watt JJ.A.
BETWEEN
Karoline Rojer
Plaintiff (Appellant)
and
Dorel Juvenile Group, Inc., Dorel Industries Inc., and Cosco Inc.
Defendant (Respondent)
Ronald P. Bohm, for the appellant
Teresa Walsh and Greg Sheahan, for the respondent
Heard and released orally: June 14, 2011
On appeal from the judgment of Justice Anne Mullins of the Superior Court of Justice, dated May 15, 2010.
ENDORSEMENT

[1]              In this case the trial judge found that factual causation had not been proven on a balance of probabilities. This court is not permitted to retry the case. Nor are we in a position to do so. We can only interfere if the factual causation finding constitutes a palpable and overriding error. Despite Mr. Bohm’s thorough argument we cannot do so.

[2]              The trial judge found the appellant’s evidence unreliable. She concluded that the probable factual cause of the appellant’s accident was that she likely undertook an ill conceived and unsafe activity on the stool. The trial judge also concluded that she could not find that the wobbly steps of the stool caused or contributed to the accident.

[3]              In our view, the evidence before the trial judge permitted these findings. The appellant cannot say that the wobbly steps caused her accident. Unlike Kamin v. Kawartha Dairy Ltd. (2006), 207 O.A.C. 199, 79 O.R. (3d) 284, it cannot be said that this was the only reasonable inference that could be drawn from the evidence. Indeed, the inference the trial judge drew was that there was likely another cause, namely, the unsafe activity undertaken by the appellant. In our view, this finding was one that was open to her on the evidence.

[4]              We recognize that it would have been preferable for the trial judge to address, if only briefly, the other issues arising in a negligence case, including duty of care, standard of care, and the breach thereof. Not only does this assist full appellate review, but it permits the parties to fully understand why the outcome was reached. But ultimately, to succeed, the appellant had to demonstrate factual causation. The trial judge found that she had no done so and, for the reasons given, we cannot interfere.

[5]              The appeal must be dismissed. In saying this, we should not be taken to agree with the trial judge’s findings on damages. In our view, the trial judge clearly got Dr. Richards’s evidence wrong and ultimately awarded an inordinately low amount. However, given our finding on liability, we need not formally address the damages question and apart from these comments, we decline to do so.

[6]              As to costs, the appellant was entitled to bring this appeal. In our view, in all the circumstances, the respondent is entitled to costs fixed in the sum of $5,000, inclusive of disbursements and applicable taxes if these costs are asked. 

“S.T. Goudge J.A.”

“J. MacFarland J.A.”

“David Watt J.A.”