Court of Appeal for Ontario

Citation: Somerset Specialities Limited v. Keith Strub Construction Ltd., 2007 ONCA 885

Date: 2007-12-17

Docket: C45672

Between:

Somerset Specialities Limited Plaintiff (Respondent)

and

Keith Strub Construction Ltd. Defendant (Appellant)

Before: Weiler, Cronk and Blair JJ.A.

Counsel:

Stephen R. Moore, for the appellant

Harvey Poss, Q.C., for the respondent

Heard: December 12, 2007

On appeal from the judgment of Justice Robert D. Reilly of the Superior Court of Justice dated June 7, 2006.

Endorsement

[1] The appellant raises three grounds of appeal. It argues that the trial judge erred: (i) by accepting the respondent’s causation expert as a person qualified to give opinion evidence in this case; (ii) in his apportionment of liability; and (iii) by allegedly failing to exercise his discretion independently to determine whether the appellant’s adjournment request on the first day of trial should have been granted. We reject these grounds of appeal.

[2] The complaints raised by the appellant concerning the respondent’s causation expert bear on the weight to be assigned to, rather than the admissibility of, his evidence: see McLean (Litigation Guardian of) v. Seisel (2004), 2004 CanLII 9418 (ON CA), 182 O.A.C. 122 (C.A.) per Gillese J.A. at paras. 108-09. In this case, the witness had experience in numerous cases in the investigation of the origin and cause of fires. Despite his lack of formal accreditation at the time of his investigation of this fire, his practical experience was sufficient to render his opinion evidence admissible. It was open to the appellant to then attack – as it did – the weight to be attached to the witness’ evidence.

[3] Moreover, the trial judge’s admissibility ruling makes it abundantly clear that he was alert to the alleged deficiencies in the witness’ expertise, experience and qualifications, and that he was mindful of his obligation to take such alleged deficiencies into account when ultimately assessing the weight, if any, to be assigned to the witness’ testimony.

[4] The appellant’s challenge to the trial judge’s apportionment of liability also fails. We agree with the respondent’s submission that there is no basis in fact or law to interfere with the trial judge’s decision concerning contributory negligence.

[5] The trial judge found that the fire was caused by the defendant’s negligent business operations. He also found that the plaintiff was contributorily negligent by failing to have sufficient plans in place to respond to a fire emergency of the kind at issue and by failing to take appropriate steps to deal with the fire when it occurred. On those facts, the trial judge’s apportionment of liability adequately addressed the relative degrees of the blameworthiness of the parties. We are not persuaded that the high test for intervention with that apportionment has been met.

[6] Finally, we see no error in the trial judge’s treatment of the appellant’s request at trial for an adjournment. The history of this matter as outlined for the trial judge included numerous earlier adjournments requested and obtained by the appellant and a denial by the Regional Senior Justice of an adjournment request by the appellant a mere ten days prior to the scheduled commencement date of the trial. On our reading of the trial judge’s adjournment ruling, he simply declined to exercise his discretion to grant an adjournment at trial – as he was entitled to do – in light of this history. We note that the same ground for the adjournment request – the unavailability of the appellant’s preferred trial counsel – was presented to the trial judge as had been advanced before the Regional Senior Justice ten days earlier.

[7] In the result, we see no error in the trial judge’s discretionary decision to refuse the appellant’s renewed adjournment request. To the contrary, we agree with his decision.

[8] The appellant asserts that the trial scheduling system in use in the Region where this trial took place is regularly depriving litigants of their choice of trial counsel. There is no evidence before us to support this submission. More importantly, however, this appellant received several indulgences from the court in the form of serial adjournments – some of which were opposed – to accommodate its choice of trial counsel. This, of course, occasioned costs and inconvenience both to the respondent and its counsel. In those circumstances, it cannot be said that the denial of the appellant’s final adjournment request worked any unfairness on the appellant, which was thereafter represented at trial by experienced counsel.

[9] Accordingly, the appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed in the total amount of $10,000, inclusive of disbursements and G.S.T.

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”