DATE: 20010629 DOCKET: C31243
COURT OF APPEAL FOR ONTARIO
RE:
ITORIA CONSTRUCTION LTD. carrying on business as CASTLEMORE COUNTRY CLUB (Plaintiff/Respondent) v. PEATSON’S HEATING & AIR CONDITIONING LTD. (Defendant/Appellant)
BEFORE:
OSBORNE A.C.J.O., FINLAYSON and SHARPE JJ.A.
COUNSEL:
Geoffrey D.E. Adair, Q.C. for the appellant
Barry A. Percival for the respondents
HEARD:
June 25, 2001
ORALLY RELEASED:
June 25, 2001
On appeal from the judgment of Justice James D. Carnwath, dated December 4, 1998.
E N D O R S E M E N T
[1] The appellant takes no issue with the trial judge’s finding as to the area of ignition of the fire that destroyed a Quonset hut located on the respondent’s golf club property. More specifically, it is accepted that ignition took place in the partition wall in a furnace room in the Quonset hut. The wall was located two inches to the right of the furnace as one looks at the furnace. The appellant was responsible for the general maintenance of the furnace.
[2] There was evidence which the trial judge accepted that the fire started through a process known as pyrolysis. This process required the emission of heat from the furnace of at least 80 to 100 degrees centigrade over an extended time. The appellant submits that only an uninsulated furnace could generate the degree of heat required for pyrolysis.
[3] Although it would have been better had the trial judge explicitly dealt with the issue whether the furnace in question was or was not insulated, we think that by accepting the evidence of the respondent’s expert witness, Professor Sandler, and evidence as to the manner in which the fire started, the trial judge implicitly found that the furnace was not insulated.
[4] We are not persuaded that the trial judge misapprehended the evidence. His critical findings were supported by evidence that he accepted. Thus, our interference is not warranted.
[5] The appeal is therefore dismissed with costs fixed on consent at $10,000 plus G.S.T. and assessable disbursements.
“C.A.Osborne A.C.J.O.”
“G.D. Finlayson J.A.”
“Robert J. Sharpe J.A.”