2007 ONCA 108

DATE: 20070220

DOCKET: C43906

COURT OF APPEAL FOR ONTARIO

RE:

SUZANNE ST. LOUIS-LALONDE, LOUISE LALONDE and JOHN McCORMICK (Plaintiffs/Appellants) – and – CARELTON CONDOMINIUM CORPORATION NO. 12 and CNIM CANADA INC. (Defendants/Respondents)

BEFORE:

LABROSSE, SHARPE and BLAIR JJ.A.

COUNSEL:

Martin P. Forget

for the appellants

Clive G. Savage for the respondent, CNIM and Eric R. Williams

for the respondent, Carleton Condominium Corporation No. 12

HEARD & ENDORSED:

February 19, 2007

On appeal from the judgment of Justice Paul F. Lalonde of the Superior Court of Justice dated June 27, 2005.

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

[1] The trial judge found that Mrs. Lalonde’s evidence was not helpful due to her age and her illness. As a result of her fussy memory, he found that the exact manner on how this accident occurred cannot be determined.

[2] These findings are supported by the evidence. Mrs. Lalonde’s evidence on the accident was confusing and inconsistent with other evidence. There was no prima facie case of negligence that could be founded on such evidence and the claim was dismissed.

[3] In these circumstances, the lack of a proper explanation for failing to call a witness to the accident was a justifiable concern for the trial judge.

[4] The appeal is dismissed with costs fixed at $10,000 payable to each respondent, inclusive of disbursements and G.S.T.