DATE: 20010119

DOCKET: C32464

COURT OF APPEAL FOR ONTARIO

RE: ONTARIO CANCER TREATMENT AND RESEARCH FOUNDATION (Plaintiff) –and– OTTAWA CIVIC HOSPITAL and ELLIS-DON CONSTRUCTION LTD. (Defendants/Appellant) –and– FISHBURN BUILDING SCIENCES GROUP LTD., RAY CYR ROOFING AND SHEET METAL WORK COMPANY LIMITED and BATTEN, SEARS & ASSOCIATES CONSULTANTS INC. (Third Parties/Respondent)

BEFORE: FINLAYSON, ABELLA and FELDMAN JJ.A.

COUNSEL: David Boghosian and Johanne Desloges, for the appellant Ottawa Civic Hospital

Paul Denis Godin, for the respondent Ray Cyr Roofing and Sheet Metal Work Company Limited

HEARD: January 17, 2001

RELEASED ORALLY: January 17, 2001

On appeal from the judgment of Justice G. Gordon Sedgwick dated June 11, 1999.

E N D O R S E M E N T

[1] The main thrust of the appellant’s complaint about the judgment in appeal was that the trial judge ignored the viva voce evidence, that of the appellant in particular, and determined the case on the basis of documentary evidence and the reports of experts called by the parties.

[2] This was a case involving the responsibility of the parties to the litigation for a leak in the roof of the appellant hospital. The dispute centred around where the leak originated and how effective were earlier attempts to deal with it. In the last analysis, the trial judge concluded that, “The precise location of the leak which caused the water damage will never be known with certainty so the responsibility for the leak cannot be determined with certainty.” The trial judge correctly stated that the burden of proving the respondent was responsible for the leak lay on the appellant and it simply failed to meet that burden.

[3] The appellant asks for a new trial. There is no reason to conclude that an assessment of the same evidence by a different judge would lead to a different conclusion. The appellant’s counsel made the submission that there are a number of instances in the trial judge’s reasons where he relied on hearsay documents and opinions that were not entirely supported by the evidence. However, even accepting the submissions, they establish nothing close to palpable error necessary to justify our intervention.

[4] Accordingly, the appeal is dismissed with costs.

Signed: “G.D. Finlayson J.A.”

“R.S. Abella J.A.”

“K. Feldman J.A.”