DATE: 20051205

DOCKET: C43884

COURT OF APPEAL FOR ONTARIO

RE:

GARDINER’S MILK TRANSPORT LIMITED (Applicant (Respondent in Appeal)) – and – ECONOMICAL MUTUAL INSURANCE COMPANY (Respondent (Appellant))

BEFORE:

ROSENBERG, GOUDGE AND SIMMONS JJ.A.

COUNSEL:

Marcus B. Snowden

for the appellant

Patrick J. Murphy

for the respondent

HEARD & ENDORSED:

December 1, 2005

On appeal from the judgment of Justice Ronald J. Haines of the Superior Court of Justice dated June 20, 2005.

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 there was ample evidence before the application judge to found his conclusion that, given the appellant’s response to the statement of claim, it seems unlikely that it would have acted any differently had it received notice of Mr. McMaster’s letter. There is no basis to interfere with that finding of fact in this court and therefore no basis to interfere with the finding of no prejudice. The appeal must be dismissed. Costs fixed at $11,146.73.