Indexed as:

Collavino Inc. v. Employers Mutual Liability Co. of Wisconsin

(Ont. C.A.)

Between

Collavino Incorporated, and

Employers Mutual Liability Company of Wisconsin

[1985] O.J. No. 227

Action No. 83/84

(1985) 14 C.C.L.I. xli

Supreme Court of Ontario - Court of Appeal

Toronto, Ontario

Morden, Goodman and Grange JJ.A.

Heard: November 14, 1985

Judgment: November 20, 1985

(2 pp.)

R.G. Colautti and L.J. Balen, for the Appellant.

R.G. Chapman, for the Respondent.

The judgment of the Court delivered by

MORDEN J.A.:-- There was ample evidence supporting the trial judge's conclusion that the damage resulted from a deficiency in the design of the trestle and so came within the exclusion clause of the policy. This conclusion is sustainable whether or not the terms of the clause required substandard conduct amounting to negligence in the design of the trestle.

We note in particular the findings with respect to the consulting engineer's specifically drawing the engineer's attention to investigating the piles for ice pressure, no change in the plans, no evidence respecting any investigation for ice pressure being carried out, the subsequent lengthening of the distance between the piles and the extra piling up river holding the trestle with angle irons to break up the ice with no further ice damage, and the common sense inferences that, in the spring, water velocities will be substantially increased and will carry large ice masses. The trial judge observed that there was no evidence that the break-up in 1979 was in any way unusual

Counsel for the appellant advised us that if we did not accept his first point, respecting the application of the exclusion clause, he did not intend to make submissions on the second ground relating to estoppel and its bearing on the limitation provision in the policy. Accordingly, no submissions were made on this point.

In the result the appeal is dismissed with costs.

MORDEN J.A.

GOODMAN J.A.

GRANGE J.A.