COURT OF APPEAL FOR ONTARIO

DATE: 20001130

DOCKET: C34721

RE: KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N.V. C.O.B. AS KLM ROYAL DUTCH AIRLINES (Appellant (Defendant)) - and - WORLD OF ART INC. (Respondent (Plaintiff))

BEFORE: McMURTRY C.J.O., CATZMAN and FELDMAN JJ.A.

COUNSEL: Gerard Chouest

For the appellant

M. Jasmine Sweatman

For the respondent

HEARD: NOVEMBER 29, 2000

E N D O R S E M E N T

On appeal from the order of Mr. Justice Matlow dated June 20, 2000.

[1] For the purposes of disposition of this appeal, we accept the appellant's submission that the respondent was obliged to establish a prima facie case of actual knowledge on the part of the responsible employees of the appellant that damages would probably result from the re-routing of the cargo. We are not satisfied that Matlow J. was in error when he concluded that the plaintiff's evidence established such a prima facie case.

[2] We are satisfied that Matlow J. was entitled to draw an adverse inference from the failure of the appellant to lead any evidence of persons with personal knowledge of the events. The adverse inference is that such evidence would not have been favourable to the appellant on the issue of the actual knowledge.

[3] We also agree that the limited evidence of the appellant did not raise a genuine issue for trail.

[4] In the result we would dismiss the appeal with costs.