DATE: 20061218

DOCKET: C42066

COURT OF APPEAL FOR ONTARIO

RE:

KEITH RUSSELL, CHARLES LAWRENCE R. RUSSELL, and RAYMOND KENNETH M. RUSSELL by their Litigation Guardian, Donna Russell, WAYNE ARTHUR RUSSELL and DONNA RUSSELL, personally (Appellants/Plaintiffs) v. THE CORPORATION OF THE TOWN OF PARRY SOUND (Respondent/Defendant)

BEFORE:

O’CONNOR A.C.J.O., SIMMONS and JURIANSZ JJ.A.

COUNSEL:

Brian Murphy

for the appellants

Michael Miller

for the respondent

HEARD & ENDORSED:

December 18, 2006

On appeal from the judgment of Justice Blenus Wright of the Superior Court of Justice dated June 7, 2004.

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

[1] The appeal is dismissed.

[2] The appellant gained access to the railway tracks from lands owned by the School Board not the Town of Parry Sound. We agree with the trial judge that the Town did not have a duty to build a fence that would have prevented that specific access.

[3] In addition, the trial judge found that even if the Town had built the fence that the appellant argues it should have, that fence would not have prevented access to the tracks. That finding is entitled to deference.

[4] The appeal is, therefore, dismissed. Costs to the respondent in the amount of $12,000, inclusive of GST and disbursements.