Court of Appeal for Ontario

CITATION: Ahiers v. Dibacco, 2010 ONCA 551

DATE: 20100811

DOCKET: C50559

BEFORE: Rosenberg, Goudge and Feldman JJ.A.

BETWEEN

Elizabeth Pearl Ahiers Plaintiff (Respondent)

and

Salvatore Dibacco Defendant (Appellant)

COUNSEL: Solomon R. Fischhoff, for the appellant Robert N. Kostyniuk, Q.C., for the respondent

HEARD: August 10, 2010

On appeal from the judgments of Justice C. Herold of the Superior Court of Justice dated May 15, 2009 and September 14, 2009.

APPEAL BOOK ENDORSEMENT

[1] We have not been persuaded that the trial judge made any reviewable error of fact. He explained his credibility findings, and those findings were available on this record. In particular, the trial judge was not bound to accept every aspect of the family physician’s opinion despite the positions of the parties.

[2] As to costs, we see no error in principle. The trial judge found that the Simplified Procedure would not have been appropriate given the manner in which the defence was conducted. This finding was open to him.

[3] Accordingly, the appeal is dismissed with costs fixed at $7,500 inclusive of disbursements and applicable taxes.