DATE: 20030930 DOCKET: C38564

COURT OF APPEAL FOR ONTARIO

RE:

SHERRI LYNN ZAVITZ, TERRY GRAHAM and MACKENZIE GRAHAM, by his Litigation Guardian SHERRI LYNN ZAVITZ (Plaintiffs (Respondents)) - and - LONDON BRIDGE CHILD CARE SERVICES INC. and 502 SPRINGBANK DR., LONDON INC. (Defendants (Appellants))

BEFORE:

ABELLA, MOLDAVER and SHARPE JJ.A.

COUNSEL:

Joseph M. Dillon for the appellant

Barbara Legate for the respondent

HEARD & ENDORSED:

SEPTEMBER 26, 2003

On appeal from judgment of the Honourable Justice John F. McGarry of the Superior Court of Justice, sitting with a jury, dated June 20, 2002.

APPEAL BOOK ENDORSEMENT

[1] We agree with the appellant that the evidence of Mr. Surowiak concerning the walkway and its failure to meet the fire safety requirements of the Building Code should not have been admitted. In our view, it was irrelevant.

[2] That said, we are satisfied that its admission occasioned no substantial wrong or miscarriage of justice. The irrelevance of the impugned evidence would have been apparent to the jury having regard to defence counsel's closing address and the trial judge's charge, in which he questioned, at two points, the value of that evidence and what it had to do with the case.

[3] Moreover, the position of the defence at trial was that the retaining wall provided a safe means of access into the building and hence, the availability of an alternate route via the walkway was at best, a marginal factor.

[4] Accordingly, the appeal is dismissed with costs fixed in the total amount of $20,000.00.