DATE: 20020516 DOCKET: C32030
COURT OF APPEAL FOR ONTARIO
RE:
STORM HAWK INC. (Plaintiff/Appellant) –and– HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, represented by the Minister of Transportation and Communications for the Province of Ontario (Defendant/Respondent)
BEFORE:
CATZMAN, ROSENBERG and CRONK JJ.A.
COUNSEL:
D. Keith Smockum and Steven R. Carlstrom, for the appellant
Peter K. Foulds, for the respondent
HEARD:
May 13, 2002
RELEASED ORALLY:
May 13, 2002
On appeal from the judgment of Justice Gladys I. Pardu, sitting without a jury, dated November 27, 1998.
E N D O R S E M E N T
[1] [1] On behalf of the appellant, Mr. Smockum made four submissions in support of this appeal. On the question of liability, he argued that Pardu J. erred in:
failing to find that the appellants had not disproved negligence under s. 193(1) of the Highway Traffic Act;
failing to apportion negligence between the parties under s. 3 of the Negligence Act; and
misusing similar fact evidence by using it to affect adversely the credibility of Robert Beaudoin.
[2] [2] On the question of damages, he took issue with the percentage by which Pardu J. depreciated the cost of new materials that were used in the repair of the damaged bridge.
[3] [3] In our view, all of these submissions must fail.
[4] [4] With respect to negligence, the evidence at trial supported the findings made by the trial judge, and we find no palpable and overriding error in her findings.
[5] [5] This conclusion is a sufficient basis on which to reject the submission regarding apportionment of negligence. In fairness to Pardu J., however, we note that the case presented to her at trial advanced competing theories by each side that the opposite party was solely responsible for the collapse of the bridge, and no suggestion of contributory negligence was put to her for consideration. We note further that many of the facts now relied upon by the appellant in support of the suggested contributory negligence were not pleaded by it.
[6] [6] We are not persuaded that Pardu J. misused the evidence that Mr. Smockum described as similar fact evidence. She made only brief reference to that evidence in her reasons for judgment and there is no indication that she used it in her assessment of Mr. Beaudoin’s credibility.
[7] [7] Lastly, the percentage depreciation figure chosen by Pardu J. was appropriate in the circumstances and reflected no error warranting appellate intervention.
[8] [8] The appeal is dismissed with costs, fixed in the amount of $15,000.00, inclusive of disbursements and G.S.T.
Signed: “M.A. Catzman J.A.”
“M. Rosenberg J.A.”
“E.A. Cronk J.A.”