COURT OF APPEAL FOR ONTARIO
FELDMAN, ARMSTRONG and MACFARLAND JJ.A.
BETWEEN:
ADRIANA IACOLUCCI
Plaintiff (Respondent in Appeal)
and
FERNBROOK HOMES (BROOKLIN) LIMITED, FERNBROOK HOMES LTD., THE CORPORATION OF THE TOWN OF WHITBY, NOEL BEST and ANDY VANHOOS
Defendants
(Fernbrook Homes( Brooklin) Limited and Fernbrook Homes Ltd.
(Appellants in Appeal))
(The Town of Whitby (Respondent in Appeal)
William S. Chalmers for the appellants Fernbrook Homes( Brooklin) Limited and Fernbrook Homes Ltd.
David Boghosian and Avril Allen for the respondent, Town of Whitby
R. Sugar and Kenneth J. Gerry for the respondent Iacolucci
Heard and endorsed: October 5, 2007
On appeal from the judgment of Justice Hugh R. McLean of the Superior Court of Justice dated July 20, 2006.
APPEAL BOOK ENDORSEMENT
1We see no error in the analysis or conclusions reached by the trial judge. His conclusions were fully supported by the evidence. He was entitled to find that the builder’s negligence in failing to provide the required railing was a proximate cause of the accident and the damage. The allocation of 33.1/3 per cent contribution by the plaintiff was within his discretion and supported by the evidence. We see no basis to interfere with the trial judge’s decision in this case.
2The appeal is therefore dismissed with costs fixed at $15,000 inclusive to the respondent/plaintiff and $10,000 inclusive to the respondent town.