COURT OF APPEAL FOR ONTARIO

CITATION: Rudderham v. Folkes, 2012 ONCA 603

DATE: 20120913

DOCKET: C54113

Goudge, Gillese and Armstrong JJ.A.

BETWEEN

Robert Allan Rudderham, Jeannette Padilla, Robert Rudderham and Alexandra Rudderham, minors under the age of eighteen years and represented by their Litigation Guardian, Jeannette Padilla

Plaintiffs (Appellants)

and

Shawn Folkes, Mary Lloyd, and 1707508 Ontario Limited c.o.b. as TJ’s Grill & Bar and Personal Insurance Company of Canada

Defendants (Respondent)

Brian N. Radnoff and Andrew Elias, for the appellants

Doug Smith, for the respondent

Heard and released orally: August 22, 2012

On appeal from the judgment of Justice Michael A. Penny of the Superior Court of Justice, dated June 29, 2011.

APPEAL BOOK ENDORSEMENT

[1] The appellant is challenging the summary judgment dismissing the action against the respondent. While the motion judge did not have the benefit of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, his reasons made clear that he was able to develop a full appreciation of the appellant’s case against the respondent.

[2] As he was entitled to do, the motion judge engaged in a limited weighing of the evidence and concluded he had no doubt that the only clear and detailed evidence that could underpin a trial judge’s fact finding was that of the respondent, and that any inconsistencies with the appellant’s evidence were relatively minor and did not go to any over service by the respondent. He went further and found as well that the appellant had no evidence of over service at all.

[3] In our view on this record, these conclusions were entirely justified. The appeal must be dismissed. Costs to the respondent fixed at $10,000, inclusive of disbursements and applicable taxes.