COURT OF APPEAL FOR ONTARIO
RE: KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N.V. C.O.B. AS KLM ROYAL DUTCH AIRLINES (Appellant (Defendant)) - and - WORLD OF ART INC. (Respondent (Plaintiff))
BEFORE: McMURTRY C.J.O., CATZMAN and FELDMAN JJ.A.
COUNSEL: Gerard Chouest
For the appellant
M. Jasmine Sweatman
For the respondent
HEARD: NOVEMBER 29, 2000
E N D O R S E M E N T
On appeal from the order of Mr. Justice Matlow dated June 20, 2000.
1For the purposes of disposition of this appeal, we accept the appellant's submission that the respondent was obliged to establish a prima facie case of actual knowledge on the part of the responsible employees of the appellant that damages would probably result from the re-routing of the cargo. We are not satisfied that Matlow J. was in error when he concluded that the plaintiff's evidence established such a prima facie case.
2We are satisfied that Matlow J. was entitled to draw an adverse inference from the failure of the appellant to lead any evidence of persons with personal knowledge of the events. The adverse inference is that such evidence would not have been favourable to the appellant on the issue of the actual knowledge.
3We also agree that the limited evidence of the appellant did not raise a genuine issue for trail.
4In the result we would dismiss the appeal with costs.