Verly Construction Group Inc. v. Berdeklis, 2012 ONSC 5175

CITATION: Verly Construction Group Inc. v. Berdeklis, 2012 ONSC 5175

DIVISIONAL COURT FILE NO.: 175/08

DATE: 20120913

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ASTON, AITKEN AND LEDERER JJ.

BETWEEN:

VERLY CONSTRUCTION GROUP INC.

Plaintiff

(Appellant)

– and –

PETER BERDEKLIS

Defendant

(Respondent)

C. Manias, for the Plaintiff (Appellant)

In Person

HEARD at Toronto: September 13, 2012

aston j. (ORALLY)

[1] Verly Construction Group Inc. is appealing a decision of Pitt J. on June 13, 2005 dismissing its claim against the defendant for damages, either in negligence or for breach of contract, resulting from work done in cleaning a commercial premises.

[2] Pitt J. refused to draw the inference that the damage caused to the carpet by the defendant was proven to have been caused by a negligent act or a breach of the defendant’s duty to do the work in a good and workmanlike manner. That decision is only subject to appellate intervention if it is based upon a palpable and overriding error in the fact-finding process.

[3] In our view, the refusal of the trial judge to draw inferences from circumstantial evidence or the letter of the defendant dated December 17, 2003, was a decision that was open to him. The inferences that the plaintiff urged the trial judge to adopt were not necessarily the only way to weigh the evidence. This is not a trial de novo. We do not weigh the evidence or substitute our own opinion on the facts. We defer to the trial judge in that regard.

[4] The appeal is therefore dismissed.

[5] I have endorsed the Appeal Book, “The appeal is dismissed for oral reasons given and recorded.”

ASTON J.

AITKEN J.

LEDERER J.

Date of Reasons for Judgment: September 13, 2012

Date of Release: September 18, 2012