DATE: 20061025

DOCKET: C43891

COURT OF APPEAL FOR ONTARIO

RE:

ALIAMISSE O. MUNDULAI (Plaintiff (Appellant)) – and – ROBERT WILSON, P.C. BLOOMFIELD and WINDSOR (CITY) POLICE SERVICE (Defendants (Respondents))

BEFORE:

GOUDGE, SIMMONS AND LANG JJ.A.

COUNSEL:

Aliamisse Mundulai (in person)

David G. Boghosian and Avril Allen

for the respondent

HEARD & ENDORSED:

October 19, 2006

On appeal from the judgment of Justice John H. Brockenshire of the Superior Court of Justice dated June 24, 2005.

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

[1] In this appeal the appellant attacks a number of the findings of fact made by the trial judge. It is clear that it is not the role of this court to retry the case. We can interfere with findings of fact only if they represent palpable and overriding error. We can see no such error here. One example makes the point. The appellant argues that the trial judge erred in finding that he refused to leave the Pizza Pizza shop. While the appellant did give evidence that he did not refuse, there was ample evidence from the police to the opposite effect. The trial judge preferred the latter. That is the function of trial judges. We cannot interfere with this or the other findings of fact challenged by the appellant. The appellant does not argue that, on the findings he made, the trial judge’s legal conclusions were wrong.

[2] The appeal must therefore be dismissed. In the circumstances we are of the view that there should only be a modest order of costs, in the amount of $5,000 to the respondent inclusive of disbursements and G.S.T.