DATE: 20050224

DOCKET: C40735

COURT OF APPEAL FOR ONTARIO

RE:

JOHN ALLAN SHARPE and SHARON EVELYN SHARPE (Plaintiffs) – and – THE CORPORATION OF THE CITY OF LONDON (Defendant/Appellant) – and – RANDA INVESTMENTS LIMITED (Third Party/Respondent)

BEFORE:

LABROSSE, WEILER and BLAIR JJ.A.

COUNSEL:

Geoffrey P. Belch and Lisa D. Pasternak

for the appellant

Bradley W. Stone

for the respondent

HEARD & RELEASED ORALLY:

February 23, 2005

On appeal from the judgment of Justice James M. Donnelly of the Superior Court of Justice dated August 22, 2003.

E N D O R S E M E N T

[1] This is an appeal from that portion of the trial judge’s decision dismissing the City’s third party proceeding for contribution or indemnity against the respondent subdivision developer, Randa Investments Limited. In oral argument before us, the City argued that, having found Randa negligent, the trial judge erred in not apportioning negligence as between the City and Randa and granting judgment over against Randa.

[2] The trial judge found that Randa was negligent in constructing an asphalt pad “without provision for surface water management and without prior city approval”. He held, however, that the proximate cause of the homeowner’s basement being flooded was the City’s failure to respond in a reasonable manner to the “circumstances within its knowledge”. Presumably the trial judge was referring to the City’s awareness of the pad after it had been built and the need for the City’s grader to lift its blade when going over the pad thereby altering the flow of water and causing flooding in the homeowner’s basement. The pad was a contributing factor to the flooding.

[3] The wording of the indemnity agreement does not relieve Randa of its own negligence and the agreement provides for indemnity in such circumstances. In our opinion, it was incumbent on the trial judge to apportion the negligence of the parties and his failure to do so was an error. In the circumstances we would apportion negligence equally between the City and Randa. As a result, the City is entitled to claim indemnity from Randa to the extent of 50% of the damages and costs for which it was found liable to the homeowner at trial.

[4] Accordingly the appeal is allowed to the extent indicated and paragraphs 3 and 4 of the judgment are set aside. There are to be no costs of the trial as between the City and Randa. Randa shall indemnify the City for one half of the judgment and interest and costs of the plaintiff. Costs of the appeal are to the City fixed in the agreed amount of $8800 plus disbursements and GST.

“J. M. Labrosse J.A.”

“Karen M. Weiler J.A.”

“R. A. Blair J.A.”