Enslev v. Challenges Unlimited Inc., 2009 ONCA 44

CITATION: Enslev v. Challenges Unlimited Inc., 2009 ONCA 44

DATE: 20090119

DOCKET: C48064

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Rosenberg and Moldaver JJ.A.

BETWEEN:

Erica Enslev, Ross Enslev, Christine Enslev and Kellin Enslev, a minor by his Litigation Guardian, Christine Enslev

Plaintiffs (Respondents)

and

Challenges Unlimited Inc., and Clevelands House Limited o/a Clevelands House

Defendants (Appellants)

Barbara A. MacFarlane and Sonu Dhanju, for the appellants

Brian E. Lucas, for the respondents

Heard and released orally: January 12, 2009

On appeal from the judgment of Justice Thomas Lofchik of the Superior Court of Justice dated October 30, 2007.

ENDORSEMENT

[1] In view of our conclusion on the issue of negligent design, we need not address the waiver issue.

[2] The trial judge, in his careful and comprehensive reasons, properly recognized that manufacturers are not insurers and that in assessing the issue of foreseability of risk of harm “the danger of applying hindsight rather than foreseability must be recognized.”

[3] On the facts of this case, it was open for the trial judge to find, as he did, that it was not reasonably foreseeable that the “lazy line” would come into contact with the loop and act as a knife to cut through it. In our view, that finding is fatal to the appellants’ “design defect” argument. In coming to this conclusion, we are satisfied, despite the appellant’s submission to the contrary, that the trial judge did not hold that manufacturers can never be found negligent where the immediate cause of the accident is attributable to operator error.

[4] Accordingly, we would dismiss the appeal.

[5] Costs of the appeal in the amount of $12,500 inclusive of G.S.T. and disbursements.

Signed: “Winkler C.J.O.”

“M. Rosenberg J.A.”

“M. J. Moldaver J.A.”