COURT OF APPEAL FOR ONTARIO
RE:
KEITH RUSSELL, CHARLES LAWRENCE R. RUSSELL, and RAYMOND KENNETH M. RUSSELL by their Litigation Guardian, Donna Russell, WAYNE ARTHUR RUSSELL and DONNA RUSSELL, personally (Appellants/Plaintiffs) v. THE CORPORATION OF THE TOWN OF PARRY SOUND (Respondent/Defendant)
BEFORE:
O’CONNOR A.C.J.O., SIMMONS and JURIANSZ JJ.A.
COUNSEL:
Brian Murphy
for the appellants
Michael Miller
for the respondent
HEARD & ENDORSED:
December 18, 2006
On appeal from the judgment of Justice Blenus Wright of the Superior Court of Justice dated June 7, 2004.
A P P E A L B O O K E N D O R S E M E N T
1The appeal is dismissed.
2The appellant gained access to the railway tracks from lands owned by the School Board not the Town of Parry Sound. We agree with the trial judge that the Town did not have a duty to build a fence that would have prevented that specific access.
3In addition, the trial judge found that even if the Town had built the fence that the appellant argues it should have, that fence would not have prevented access to the tracks. That finding is entitled to deference.
4The appeal is, therefore, dismissed. Costs to the respondent in the amount of $12,000, inclusive of GST and disbursements.