CITATION: Zippilli v. Hamilton (City), 2011 ONCA 659
DATE: 20111020
DOCKET: C52522
COURT OF APPEAL FOR ONTARIO
MacPherson, LaForme and Epstein JJ.A.
BETWEEN
Carolina Zippilli
Plaintiff/Appellant
and
Corporation of the City of Hamilton
Defendant/Respondent
Chris Argiropoulos, for the appellant
Matthew J. Wells and Lisa C. Pool, for the respondent
Heard and released orally: October 18, 2011
On appeal from the judgment of Justice Jane A. Milanetti of the Superior Court of Justice dated July 12, 2010.
ENDORSEMENT
[1] The appellant Carolina Zippilli, through her litigation guardian John Zippilli, appeals from the judgment of Milanetti J. of the Superior Court of Justice dated 12 July 2005, dismissing the appellant’s action.
[2] A municipal culvert became blocked and, during a major storm, water was diverted towards the appellant’s property. The basement of the appellant’s house flooded, causing extensive damage.
[3] The appellant sued the City of Hamilton, alleging inadequate inspection and maintenance of the culvert. After a five-day trial, the trial judge dismissed the negligence claim on the basis that the appellant had failed to establish that the city’s negligence caused the damage to her basement. She also quantified the appellant’s damages at $58,500.72.
[4] The appellant appeals on the basis that the trial judge made palpable and overriding errors in both her causation and damages analysis.
[5] The appellant contends that the trial judge made a palpable and overriding error in concluding that the culvert became blocked only on April 4, 2005, thus rendering irrelevant the city’s failure to inspect it in the previous month as mandated by city policy.
[6] We do not accept this submission. The trial judge carefully reviewed the evidence of John Zippilli, Mr. Moffat, a city employee who was on site on April 4, 2005, and two experts, and concluded that the culvert likely became blocked during the storm on April 4, 2005. Noteworthy is Mr. Zippilli’s own evidence, as recorded by the trial judge:
In cross-examination Mr. Zippilli said he saw the swimming pool and water flowing fast down the creek. He saw the boulders, rocks, trees and mud excavated from the culvert the next day. When Mr. Zippilli saw the material blocking the grate “he absolutely believed” it derived from the water coming down like waterfalls from the mountain. Mr. Zippilli described lots of water coming down the escarpment and taking rock, wood, mud, and washing it down.
[7] In light of our conclusion on the liability issue, it is not, strictly speaking, necessary to consider the damages issue. However, for the sake of completeness, we record that we see no palpable and overriding error in the trial judge’s assessment of damages.
[8] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $3000, inclusive of disbursements and HST.
“J.C. MacPherson J.A.”
“H.S. LaForme J.A.”
“G.J. Epstein J.A.”