DATE: 20030214
DOCKET: C36408
COURT OF APPEAL FOR ONTARIO
RE: ROBERT MCLEAN c.o.b. MCLEAN CONSTUCTION (Plaintiff) (Respondent) –and– HENDRIKUS ANTONIUS JOHANNES VAN DEN BERG, JOHANNA JOSEPHINA AUGUSTINA MARIA VAN DEN BERG, THE CANADIAN IMPERIAL BANK OF COMMERCE (Defendants) (Appellants)
BEFORE: McMURTRY C.J.O., LASKIN and GOUDGE JJ.A.
COUNSEL: David Reid, for the appellants Lois Bauer, for the respondent
HEARD: February 7, 2003
RELEASED ORALLY: February 7, 2003
On appeal from the order of Justice R. Jeffrey Flinn of the Superior Court of Justice dated May 8, 2001.
E N D O R S E M E N T
[1] In his oral argument counsel for the appellant made three submissions.
The trial judge made a factual error in assessing the quantum meruit claim. The appellant contends that the trial judge erred in concluding that the expert reports failed to consider the work needed to reinforce the trussles according to building code requirements. We do not accept this submission for two reasons. First, the trial judge’s finding is supported by the evidence of Peter Harris; second, and more important, as we read the reasons, the trial judge did not accept either expert report, but instead simply assessed what, in his view, was a reasonable amount of labour for the job. That assessment is entitled to deference from this court.
The trial judge erred in failing to award damages for delay. The trial judge found no delay and, even if there was delay, accepted the expert report that fixed damages at a minimal amount. In our view, these findings were reasonably supported by the evidence. We are not persuaded that we should interfere with them.
Costs
Third, the appellant seeks leave to appeal costs. His main submission is that costs should have been assessed in the light of this court’s decision in Murano. Without the benefit of the transcript of the proceedings on costs we cannot say whether Murano applies. In these circumstances, both the method of determining costs and the amount are within the trial judge’s discretion and are not reviewable.
[2] The appeal is therefore dismissed with costs fixed at $15,000 inclusive of disbursements and G.S.T.
Signed: “R. Roy McMurtry C.J.O.”
“John Laskin J.A.”
“S.T. Goudge J.A.”