DATE: 20041001

DOCKET: C39744

COURT OF APPEAL FOR ONTARIO

RE:

1085805 ONTARIO LIMITED, carrying on business under the firm name and style of WORKERS’ COMPENSATION REPRESENTATIVE FOR WORKERS (Plaintiff/Respondent)

-and- MARCEL LAVOIE (Defendant/Appellant)

BEFORE:

CATZMAN, DOHERTY and ARMSTRONG JJ.A.

COUNSEL:

Donald Kuyek

for the appellant

Peter Best

for the respondent

HEARD AND ENDORSED:

October 1, 2004

On appeal from the judgment and supplementary reasons of Justice Ian M. Gordon of the Superior Court of Justice, sitting without a jury, dated January 28, 2002 and February 11, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, it does not matter how the duty between the parties is characterized. On the findings of the trial judge, all of the elements of the duty owed by the respondent were canvassed and met by him. The remaining grounds of appeal are answered by findings of fact and inferences of fact, made by the trial judge, all of which were supported by the evidence. Finally, it was open to the trial judge to commute the percentage of non-economic loss, and we find no error in his having done so.

[2] The appeal is dismissed with costs fixed in the amount of $5,000, inclusive of disbursements and G.S.T.