DATE: 20031211

DOCKET: C37617

COURT OF APPEAL FOR ONTARIO

RE:

JOHN SUSIN (Plaintiff/Appellant) –and– GENSTAR DEVELOPMENT COMPANY, division of IMASCO ENTERPRISES INC. (Defendant/Respondent)

BEFORE:

LABROSSE, SHARPE and ARMSTRONG JJ.A.

COUNSEL:

John Susin

the appellant, in person

Roger J. Gillott

for the respondent

HEARD AND ENDORSED:

December 11, 2003

On appeal from the order of Justice Donald A.K. MacKenzie of the Superior Court of Justice dated December 19, 2001.

A P P E A L B O O K E N D O R S E M E N T

[1] We would dismiss the appeal for the trial judge’s reasons.

[2] The action giving rise to this appeal was commenced approximately 25 years after the event in question.

[3] In detailed reasons, the trial judge concluded that the action was statute-barred by the Limitations Act or should be dismissed under the equitable doctrine of laches. In these circumstances, it was not necessary for the trial judge to deal with the issues of “onus” or “acquiescence”. Moreover, the trial judge found there was no evidence of a breach of trust.

[4] Key documents, including the contract itself, have been lost or destroyed and the parties to the contract have been dissolved. Key witnesses have passed away and the memories of others have faded. The defendant has been substantially prejudiced by the passage of time.

[5] The trial judge made no error of fact or law and his judgment should not be disturbed. The appeal is dismissed with costs fixed at $7,500, all inclusive.