DATE: 20030625

DOCKET: C38701

COURT OF APPEAL FOR ONTARIO

RE:

SWAPAN KUMAR MAZUMDER (Plaintiff/Appellant) and BELL CANADA, TOM VARGA, and PATTI MCILVEEN (Defendant/Respondent)

BEFORE:

GOUDGE, SIMMONS AND GILLESE JJ.A.

COUNSEL:

Melvyn L. Solmon

for the appellant

Hugh M. DesBrisay and Samuel M. Robinson

for the respondent

HEARD:

June 18, 2003

On appeal from the judgment of Justice Paul S. Rouleau of the Superior Court of Justice dated July 18, 2002.

E N D O R S E M E N T

Released Orally June 18, 2003

[1] In our view it is not necessary to decide the duty of care question.

[2] We think the motions judge was correct in deciding that there was nothing before him to show that the respondent had any information that would have generated evidence that would have exculpated the appellant. The respondent traced one call in the 10:20 time frame on September 17, 1996 from several that might have been the harassing call about which the respondent was notified by the police. Even if the failure to run a Line 115 report on another call in this time frame could be said to be a breach of a standard of care (which is debatable), there is no showing that this report would have helped the appellant at all.

[3] The appeal must therefore be dismissed with costs fixed at $3,000.

"S.T. Goudge J.A."

"Janet Simmons J.A."

"E.E. Gillese J.A."