Citation: Michaluk v. McDiarmid Lumber Ltd., 2012 MBCA 42 Date: 20120424 Docket: AI 11-30-07595 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard BETWEEN : LAWRENCE MICHALUK ) R. L. Zaparniuk ) for the Appellant (Plaintiff/Defendant by Counterclaim) ) Respondent ) W. M.

Onchulenko ) for the Respondent - and - ) ) MCDIARMID LUMBER LTD. ) Appeal heard and ) Decision pronounced: (Defendant/Plaintiff by Counterclaim) ) April 24, 2012 Appellant ) HAMILTON J.A. (for the Court): 1 McDiarmid Lumber Ltd. (the defendant) appeals a judgment awarding damages in favour of Lawrence Michaluk (the plaintiff) for breaching the contract for the construction of the plaintiff’s home with respect to the driveway and the flooring. 2 The trial judge made the following crucial findings of fact: − the defendant did not construct a portion of the paved driveway in a good and workmanlike manner as it was poured flat and not sloped to allow for water runoff; − the floor was not installed in a good and workmanlike manner given that the defendant’s agents “allow[ed] [the] floor to be rained on and/or [had] standing water on it for approximately two weeks because it was installed when the roof rafters and sheeting were not available” (at para. 22); and − while attempts to remediate the damage to the floor have been made, the damage that continues can only be remedied by the process suggested by the plaintiff’s expert engineer. 3 The defendant has not demonstrated that the judge made any palpable and overriding errors.

The trial judge made his findings based on evidence, including expert evidence, that was called by the plaintiff and was considered in the context of no contrary evidence called by the defendant. 4 After the plaintiff had completed his evidence, the defendant sought to call expert evidence contrary to the requirements set out in the Queen’s Bench Rules. The trial judge denied the defendant’s request to do so. The defendant had retained its expert during the four-week hiatus of the trial between the calling of the plaintiff’s case and the defendant’s case.

The defendant has not persuaded us that deference is not owed to the trial judge and that we should intervene in this discretionary ruling. 5 The appeal is dismissed with costs. J.A.

C.J.M. J.A.