2014 MBCA 18, 2014 MBCA 18

Citation: Dansereau v. The City of Winnipeg, Date: 20140131 2014 MBCA 18 Docket: AI 13-30-07993 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Mr. Justice Christopher J. Mainella BETWEEN: ) RAYMOND DANSEREAU and ) M. BuchartKATHLEEN DANSEREAU ) for the Appellant ) (Plaintiffs) Respondents ) M. N.

Trachtenberg ) for the Respondent- and - ) ) Appeal heard andTHE CITY OF WINNIPEG ) Decision pronounced: ) January 31, 2014 (Defendant) Appellant ) ) MAINELLA J.A. (for the Court): [1] The City of Winnipeg (Winnipeg) appeals an award of damages against it in the amount of $34,702.50. [2] It is agreed that due to Winnipeg’s negligence, the respondents’ almost new driveway was damaged. The dispute attrial was what method should be used to calculate damages. The respondents argued their damages were the cost of a full replacement ofthe driveway.

Winnipeg submitted the respondents’ damages were the cost of patching the damaged portion of the driveway. Thechasm between the parties’ differing positions was approximately $30,000. [3] The evidence before the trial judge was that due to the difficulty in matching the colour of concrete, a patch wouldcreate a noticeable imperfection to the driveway. [4] The trial judge found that the respondents were entitled to damages to restore them to the place they were beforeWinnipeg’s negligence, possession of a driveway without a flaw.

The judge accepted the testimony of an expert on concrete renovationscalled by the respondents, which he was entitled to do, as to the quantum of damages to replace the entire driveway. [5] Winnipeg argues that the trial judge erred in equating the diminution of value of the property to the restoration cost of anew driveway. [6] Deference is owed to a judge’s award of damages absent the judge making an error in law or principle, coming to aconclusion without evidence, or making an award that was wholly erroneous by being either inordinately low or inordinately high in thecircumstances (Woelk et al. v.

Halvorson, (SCC), [1980] 2 S.C.R. 430 at 435-36). In arriving at a damages award, ajudge’s assessment of the evidence, or proportioning of damages, is a question of fact that cannot be set aside on appeal absentdemonstration of palpable and overriding error (K.L.B. v. British Columbia, 2003 SCC 51 at para. 62, [2003] 2 S.C.R. 403; and M.B. v.British Columbia, 2003 SCC 53 at para. 54, [2003] 2 S.C.R. 477). [7] We are not persuaded that the judge erred in such a way in his calculation of damages to warrant appellate intervention.

[ 8 ] The appeal is dismissed with costs. J.A. J.A. J.A.