Samur (Litigation Guardian of) v. Antoniak, 2016 ONCA 851

This is a decision about the credibility of interested witnesses, the standard of care to be applied to children, and generally accepted inferences.

Released November 14, 2016 | Full Decision [CanLII]

This is an appeal from a judge alone pedestrian/motor vehicle trial.  The minor plaintiff (respondent on appeal) was injured while crossing the road as a pedestrian.  The minor plaintiff sued both the person who hit him and the City of Hamilton.  The City of Hamilton was sued because there was no crossing guard at the intersection when the plaintiff was hit. (the crossing guard was normally present between 8:20 and 8:40)  The trial judge ultimately held that that the plaintiff crossed the intersection between 8:20 and 8:40.  If the crossing guard had been present, the accident would not have occurred.

The appellants argued the trial judge erred on: (1) the timing of the accident; and (2) whether the Minor Plaintiff should be found contributorily negligent.  Both appeals were dismissed.

On issue number one, the Court held that the trial judge made no palpable and overriding error of fact.  The Court restated the test for the credibility of interested witnesses as clarified by the BC Court of Appeal in Faryna v Chorny, which states:

The test must reasonably subject [the witness’] story to an examination if its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

The Court ultimately held the trial judge was not “obliged to refer to each and every piece of evidence”.  On reading the record as a whole, it was clear that the Judge properly applied the Faryna test.

On issue number two, the appellant sought to overturn the finding that the minor plaintiff (10 years old) was not contributorily negligent.  The Court restated the test to be applied in determining contributory negligence for children as enunciated by the Ontario Court of Appeal in Nespolon v Alford.  The test reads [references omitted]:

In determining the appropriate standard of care for children, the test is whether a child exercised the care expected from children of like age, intelligence and experience. This is both an objective and subjective standard, which acknowledges the need for individualized treatment along with the need for consistency in the law.

The appellant took issue with a number of inferences drawn by the trial judge.  The appellant argued they were unsupported by the evidence.  The Court agreed they may have been unsupported, but did not grant the appeal.  The Court agreed with the respondent that the trial judge was allowed to draw generally accepted inferences that have been recognized by other courts.  The Court wrote:

On this basis, and given the record, he was entitled to draw the inferences and come to the conclusions referred to above, in our view. That children lack the judgment of adults and that they are notoriously forgetful when they are distracted or confused, and therefore do not follow instructions on the basis of which “they should know better”, are concepts that are generally accepted and that have been recognized by the courts as factors distinguishing the conduct of children from that of adults in the negligence liability context.

Despite acknowledging that another finding on liability may have been available on the evidence, the appeal was ultimately dismissed.

Read the full decision on CanLII
Written by

Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.