2011 NBCA 105, 2011 NBCA 105

COURT OF APPEAL OF NEW BRUNSWICK 24-11-CA LEO OUELLETTE APPELLANT LEO OUELLETTE APPELANT - and - - et - CHALEUR TRAILER SALES LTD. and THORINDUSTRIES INC., operating under the businessname and style of General Coach and CITAIR INC. RESPONDENTS CHALEUR TRAILER SALES LTD. et THORINDUSTRIES INC., sociétés exerçant leurs activitéssous l’appellation commerciale General Coach, etCITAIR INC. INTIMÉES Ouellette v. Chaleur Trailer Sales Ltd. et al., 2011NBCA 105 Ouellette c.

Chaleur Trailer Sales Ltd. et autres, 2011NBCA 105 CORAM: The Honourable Justice Deschênes The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge Deschênes L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the Court of Queen’sBench: January 28, 2011 Appel d’une décision de la Cour du Banc de la Reine: Le 28 janvier 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 38 Décision frappée d’appel : 2011 NBQB 38 , 2011 NBBR 38 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: November 9, 2011 Appel entendu : Le 9 novembre 2011 Judgment rendered: November 9, 2011 Jugement rendu : Le 9 novembre 2011

Counsel at hearing: For the appellant: Terrence P. Lenihan For the respondents: Daniel R. Theriault, Q.C. Avocats à l’audience : Pour l’appelant : Terrence P. Lenihan Pour les intimées : Daniel R. Theriault, c.r. THE COURT The appeal is dismissed with costs of $2,500. LA COUR Déboute l’appelant, qu’elle condamne à des dépens de 2 500 $.

The following is the judgment delivered by THE COURT (Orally) [ 1 ] The trial judge concluded the respondent manufacturers, Thor Industries Inc. and Citair Inc., were not responsible for the water leakage which materialized following the appellant’s purchase of a 2006 Citation Trailer. Rather, the trial judge attributed the source of the problem to two other factors: (1) the trailer in question was not designed to be relocated on a regular basis, as happened in the present case; and (2) the trailer was not properly “blocked” or “leveled” when situated on the lot.

In brief, the trial judge concluded, on a balance of probabilities, the respondent retailer, Chaleur Trailer Services Inc., who undertook the moving and blocking of the unit, was responsible for the loss which ensued. Unfortunately, that retailer is no longer in business. The trial judge’s decision is now reported as 2011 NBQB 38 . [ 2 ] The appellant raises several grounds of appeal, which are inevitably tied to findings of fact, for which the deferential review standard of “palpable and overriding error” is applicable: D.L.M. v. J.A.M. , 2008 NBCA 2 , 326 N.B.R. (2d) 111, applying Housen v.

Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235. The central thrust of those grounds is that the trial judge overlooked the evidence establishing the specific model in question was subject to a design defect (“failure to install an outrigger to the extension patio”) and this design defect was responsible for the water leakage that materialized. Assuming without deciding that the unit in question was subject to a design defect, there is no evidence to support the contention that the alleged design defect was the cause of the water leaks.

While the appellant raises other grounds of appeal, they are but an invitation to engage in the reweighing of evidence and to address arguments that appear not to have been pursued before the trial judge. [ 3 ] For these reasons, the appeal is dismissed with costs of $2,500. ____________________________________ J.T. ROBERTSON, J.A.

____________________________________ ALEXANDRE DESCHÊNES, J.A. _____________________________________ BRADLEY V. GREEN, J.A.