MacKenzie v. Baker

MacKenzie v. Baker [[2001 28020 (ON SC), 56 O.R. (3d) 716]

65 O.R. (3d) 319

[2003] O.J. No. 2281

Docket No. C37396

Court of Appeal for Ontario

O'Connor A.C.J.O., Morden and Simmons JJ.A.

May 23, 2003

*Note: The catchlines relate to a judgment of MacLeod J. of the Superior Court of Justice, [[2001 28020 (ON SC), 56 O.R. (3d) 716]. An appeal of this judgment was dismissed by the Court of Appeal for Ontario (O'Connor A.C.J.O., Morden and Simmons JJ.A.) on May 23, 2003. The endorsement of the court is as follows:

Damages -- Measure -- Research materials -- Cost of replacement of lost goods as measure of damages -- Plaintiff's property damaged by water escaping from defendant's above- ground pool -- Plaintiff's microscopic slides and electron microscope negatives damaged -- Slides and negatives having subjective value to plaintiff for purposes of scientific research -- Plaintiff entitled to damages based on cost of replacing research.

Counsel: Philip M. Osanic, for defendants / appellants John Zuber, for plaintiffs / respondents

Endorsement

[1] BY THE COURT: -- With respect to issues numbered 1 and 3, we think that the points are substantially covered by the appellant's counsel's admission set forth on p. 113 of the trial transcript. The trial judge made it clear that the admission was the basis for letting State Farm out of the action. After this was done, any possible damages attributable to contributory negligence on the part of the plaintiffs could not be recovered from State Farm. Further, we see no clear indication in the transcript that appellants' counsel made any reference to the admission being qualified by a finding of contributory negligence against the plaintiffs. In any event, the trial judge found that the research materials "remained there for four years, unharmed, in a dry and safe environment".

[2] With respect to issue number 2, we think that the research materials had undoubted value. The trial judge made the following finding [at p. 721 O.R.:

I am satisfied that the slides and negatives had significant value to the plaintiff Dr. MacKenzie, both by way of their availability to him for his potential continuing research and, in addition, for his current academic teaching purposes.

Accordingly, we do not think that the trial judge erred in her assessment of the damages for their loss.

[3] With respect to issue number 4, the appellants referred to the pre-trial order after the evidence was concluded. At this stage, we do not think that the trial judge erred in her disposition of this matter.

[4] With respect to the costs order in favour of State Farm, in the circumstances of this case, particularly the failure of Co-operators in a clear case to admit liability until the opening of the trial, we do not think that the trial judge erred in the exercise of her discretion.

[5] For these reasons, we do not give effect to any of the grounds of appeal. The appeal is dismissed with costs. (Submissions made on the amount of costs.) The costs are fixed on a partial indemnity basis in the amount of $7,500 inclusive of GST and disbursements. @