Moncton Plumbing & Supply Co. v. Foundation Co. of Canada Ltd. et al., [1968] N.B. Law News No. 110 (CA)

• Judge: Ritchie, Limerick and Hughes, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 03, 1968
• Jurisdiction: New Brunswick
• Citations: [1968] N.B. Law News No. 110 (CA)

Moncton Plumbing v. Fdn. Co., [1968] N.B. Law News No. 110 (CA)

MLB Law News

Moncton Plumbing & Supply Company Limited v. Foundation Company of Canada Limited and Crory Construction Limited

Indexed As: Moncton Plumbing & Supply Co. v. Foundation Co. of Canada Ltd. et al.

New Brunswick Supreme Court

Appeal Division

Ritchie, Limerick and Hughes, JJ.A.

October 3, 1968.

Summary:

Evidence - Inferences of Fact - Appeal Court reversed trial judge's dismissal of Df. Appellant's counterclaim and directed that judgment for water damage caused by plumbing break be entered for the Df./Ap. against the Pl./Rp. for $10,718. Appeal Court held that there is no reasonable evidence to support the finding of the trial judge that the plumbing connection broke or became disconnected due to the sagging of the building. Court stated:

"On the case as a whole the balance of probability supports the inference that the disconnection of the soldered tee-joint was due to faulty installation."

Court stated:

"Where a trial judge makes a finding of fact on conflicting testimony the finding should not be set aside on appeal unless the appeal tribunal is satisfied that the trial Judge has failed to use or has palpably misused his advantage of having seen or heard the witnesses testify. Furthermore where the trial judge's estimate of a witness forms any substantial part of the reasons for his judgment his conclusions of fact should not be disturbed unless the appeal tribunal is convinced that the finding is wrong. Where, however, a finding of fact is based essentially on inferences, the appeal tribunal has a duty to review the basis of the finding and will not hesitate to make its own finding which may differ from that of the court of first instance. See Prudential Trust Co. Ltd. v. Forseth, 1960 S.C.R. 210.

"The reasons for judgment contain no reference to the learned trial Juge's opinion of the witnesses based on their conduct while testifying. He said however that he preferred accepting the evidence of Morrison and Belanger to that of MacKenzie. In the context I do not think the two challenged findings of fact rest essentially on the trial Judge's assessment of the witnesses but rather upon inferences which he drew from the case as a whole. Counsel for the appellant contends that even if the credibility of witnesses formed any substantial part of the learned trial judge's findings, the reasons which he gave for preferring the evidence of Morrison and Belanger to that of MacKenzie show that he misapprehended the evidence of the latter in two important respects which could have affected his opinion of the weight to be given to MacKenzie's evidence, and his decision on the case as a whole . . .

"Where it is shown that a court of first instance has misapprehended circumstances which may have affected its assessment of witnesses regarding any essential fact, and particularly where it is not possible to determine what effect such misapprehension may have had on the conclusions reached, it is, in my opinion, incumbent upon the appellate court to review the evidence and attach such weight to the evidence of each witness as it thinks is justified by the circumstances of the case and must not shrink from reaching a conclusion differing from that of the court of first instance if upon full consideration, the appellate court is satisfied that the judgment appealed from should not be upheld. Annable v. Coventry, 46 S.C.R. 573."

See N.B. Law News, March 1, 1968 issue #68-30 for summary of trial judgment.

Counsel:

Murphy, Murphy & Mollins, for the plaintiff;

Ryan, MacGowan, Higgins & Case, for the defendants.

This appeal was heard before Ritchie, Limerick and Hughes, JJ.A., of the New Brunswick Supreme Court, Appeal Division, who delivered the following decision on October 3, 1968.