DATE: 20030604

DOCKET: C37311

COURT OF APPEAL FOR ONTARIO

RE: YOUNG MEN’S CHRISTIAN ASSOCIATION OF HAMILTON‑BURLINGTON (Plaintiff) (Respondent) – and – 331783 ONTARIO LTD. carrying on business as JUPPELEC INC. (Defendant) (Appellant)

BEFORE: McMURTRY C.J.O., WEILER and MacPHERSON JJ.A.

COUNSEL: Barry A. Percival, for the appellant C. Kirk Boggs, for the respondent

HEARD: May 15, 2003

RELEASED ORALLY: May 15, 2003

On appeal from the judgment of Justice Susan G. Himel of the Superior Court of Justice dated October 25, 2001.

E N D O R S E M E N T

[1] In our opinion the trial judge made no error in her analysis of causation or in her apportionment of liability.

[2] The appellant does not challenge the finding of fact by the trial judge that the appellant’s failure to hook up the high limit switch was a material cause of the fire. The appellant submits that this is the only finding of negligence made against it and that the trial judge made many more findings of negligence against the respondent. The appellant further submits that the trial judge erred in holding that these findings of negligence against the respondent only prolonged or exacerbated the damage caused by the fire as opposed to being a material cause of the fire. This submission ignores the trial judge’s finding that the defendants failed to warn or at least advise the respondent of problems in installing the heaters and wiring according to the manufacturer’s plans and specifications.

[1] Apportionment of liability is primarily within the province of the trial judge. There is no demonstrable error in the trial judge’s appreciation of the evidence or the law and there is no basis on which to interfere with her apportionment.

[2] Accordingly the appeal is dismissed. Costs are fixed in the amount of $15,000 payable to the respondent.

Signed: “R. M. McMurtry C.J.O.” “Karen M. Weiler J.A.” “J.C.MacPherson J.A.”