Court of Appeal for Ontario

Date: 2005-11-07 Docket: C42506

Re: Shawnne Latta (Appellant (Plaintiff)) – and – Her Majesty the Queen, in Right of Ontario (Respondent (Defendant))

Before: Laskin, Rosenberg and LaForme JJ.A.

Counsel: Thomas F. Delorey for the appellant Tim Farrell for the respondent and cross-appellant

Heard & Released Orally: November 3, 2005

On appeal from Order of Justice J. C. Kennedy of the Superior Court of Justice dated September 14, 2004.

Endorsement

[1] Both the appellant and the respondent attack the trial judge’s apportionment of liability. We have concluded that there is evidence supporting a finding of liability on each party.

[2] The trial judge found that the appellant was not a credible witness and specified the appellant’s evidence he found not to be credible. The trial judge, therefore, properly looked for evidence to confirm the appellant’s account of the incident. We agree with the appellant’s counsel that three pieces of evidence supported the appellant’s story: the evidence of Mr. Lewis that buckets filled with sand had been placed on the landing previously; the evidence of the treating orthopaedic surgeon that the appellant’s injuries were consistent with the fall he described; and the evidence that the appellant complained about his fall immediately after it occurred.

[3] On the other hand, there was also evidence to support the trial judge’s finding that the appellant was contributorily negligent. The appellant acknowledged that he hit the bucket immediately on leaving the building, thus suggesting that he was going too fast. The accident happened in broad daylight in the location where the appellant admitted a bucket had been placed previously, thus suggesting that he failed to keep a proper look-out.

[4] Therefore, in our view, the evidence supported the trial judge’s conclusion that each party was contributorily negligent. The remaining issue on liability is whether the trial judge’s apportionment should be altered. This is an issue on which a trial judge has broad discretion. We are not persuaded that an equal apportionment of liability was an unreasonable assessment of fault.

[5] Finally, counsel for the appellant fairly conceded that unless we altered the apportionment of liability, he had no basis to pursue his costs appeal.

[6] Accordingly, both the appeal and the cross-appeal are dismissed without costs.