Court File and Parties

CITATION: Best v. Port Hope Golf & Country Club, 2008 ONCA 26

DATE: 20080117

DOCKET: C46300

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O., ROSENBERG and LANG JJ.A.

BETWEEN:

RILEY BEST

Plaintiff (Respondent)

and

ROBERT DEAL

Defendant (Respondent)

and

PORT HOPE GOLF & COUNTRY CLUB

Defendant (Appellant)

Counsel:

Mitchell K. Kitagawa for the appellant

R. Bruce Nelson for the respondent Riley Best

Heard and released orally: January 15, 2008

On appeal from the judgment of Justice Kenneth Pedlar of the Superior Court of Justice dated October 26, 2006 made at Kingston, Ontario.

ENDORSEMENT

[1] The appellant relies upon the limitation on liability in the greens fee ticket. Under s. 5(3) of the Occupiers Liability Act, R.S.O. 1990, c. O.2, to rely on exclusion of liability “the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed”.

[2] This was an unusual case. The plaintiff did not pay for the ticket and his evidence was that he did not recall receiving it. He also testified that he had never read the ticket on the many prior occasions he had played at this golf course and it had never been brought to his attention on those earlier occasions. There was no other evidence, such as signage, that the defendant brought the exclusion of liability to the plaintiff’s attention on this particular occasion. In those circumstances, the appellant was not entitled to rely on the exclusion of liability on the ticket.

[3] The weight to be placed on the expert evidence depended on whether the facts supported the assumptions made by the expert. In cross-examination, the expert conceded that he did not take into account certain facts that were accepted by the trial judge. The appellant has therefore not shown that the trial judge made any palpable or overriding error.

[4] Accordingly, the appeal is dismissed with costs fixed at $6,771.82 inclusive of G.S.T. and disbursements.

Signed: “Winkler C.J.O.

“M. Rosenberg J.A.”

“S. E. Lang J.A.”