DATE: 20020625
DOCKET: C36782
COURT OF APPEAL FOR ONTARIO
RE:
LAPOINTE DRAINAGE LIMITED (Plaintiff/Defendant by counterclaim/Appellant) –and– ROBERT BENEDICT DORAN (Defendant/Plaintiff by counterclaim/Respondent)
BEFORE:
WEILER, CHARRON and SHARPE JJ.A.
COUNSEL:
Guy J. Pratte, Jean Martel and Michelle Flaherty, for the appellant
Ronald F. Caza and Pierre Champagne, for the respondent
HEARD:
June 4, 2002
On appeal from the judgment of Justice Robert J.A. Cusson, sitting without a jury, dated July 3, 2001.
E N D O R S E M E N T
[1] Lapointe Drainage Limited (“Lapointe”) appeals the judgment of Cusson J. dismissing its action for payment for the installation of a subsurface drainage system and awarding damages on Doran’s counterclaim for crop losses resulting from the improper drainage of his 63-acre Moose Creek farm (the “farm”).
[2] The trial judge found that the most significant cause of the continuing drainage problem on the farm was the inability of the water to penetrate the subsurface drainage tile that Lapointe had installed. He found Lapointe liable because it did not verify the composition of the soil, did not take any measures to verify the properties of the Typar filter used and its ability to perform in the farm’s dense soil conditions, and installed the tiles in very wet conditions. He observed that the latter may have an adverse effect on the ability of the filters to properly perform once installed. This combination of factors contributed to the lack of proper drainage.
[3] The appellant’s attack on the trial judgment is fact-driven. The appellant places particular emphasis on the evidence of a test done by government inspectors. That test indicated that on the date the test was performed, the subsurface water level was at or below the level of the drainage tiles. The appellant submits that this amounts to conclusive proof that the drainage system was functioning properly and that there had to be some other cause, for which the appellant was not responsible, for the wet field conditions.
[4] We agree that it would have been preferable for the trial judge to have dealt with this evidence as it suggests that there could well be some other cause or explanation for the unsatisfactory condition of the respondent’s land. However, we also agree with the respondent’s submission that in view of the high level of deference we must accord to the factual findings of the trial judge, the appellant cannot succeed by showing that the trial judge could have been wrong. It must be shown that the trial judge was palpably wrong. In our view, the appellant has not met that high threshold. There was some expert evidence to support the trial judge’s finding that because of the soil conditions, and the manner of installation, the drainage system installed by the appellant was not adequate.
[5] We note here the concern expressed by the appellant that the trial judge’s reasons might be read as holding that the Typar filter will always be inadequate, and that this amounted to the acceptance of a novel scientific theory. While one of the expert witnesses did give evidence that, by its very nature, the Typar filter unduly impeded the flow of water, we do not read the trial judge’s reasons as resting on that simple proposition. Nor do not read the trial judge’s reasons as establishing once and for all that the Typar filter is never adequate. In our view, the trial judge’s reasons decide no more than that for this location, in these conditions, the system the appellant installed was not adequate.
[6] The trial judge did not err in awarding damages despite the limitation of liability clause inasmuch as this clause was contained on the back of an estimate. It was not discussed between the parties and was not incorporated in any written agreement. Furthermore, the limitation clause was not pleaded by Lapointe.
[7] We see no merit in the other grounds of appeal.
[8] The appeal is therefore dismissed with costs fixed at $20,000 all inclusive.
Signed: “Karen M. Weiler J.A.”
“Louise Charron J.A.”
“Robert J. Sharpe J.A.”