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

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)

1Verly 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.

2Pitt 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.

3In 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.

4The appeal is therefore dismissed.

5I 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