COURT OF APPEAL FOR ONTARIO
DATE: 20040602
DOCKET: C40837
RE:
PETER KERLING and WILMA KERLING (Plaintiffs (Respondents)) - and - RICHARD FOREMAN (Defendant (Appellant))
BEFORE:
MOLDAVER, GILLESE and BLAIR JJ.A.
COUNSEL:
Donald J. Catalano, Q.C. for the appellant
Ross C. McLean for the respondent
HEARD & ENDORSED:
June 2, 2004
On appeal from the order of Justice Peter Hambly of the Superior Court of Justice dated October 1, 2003.
APPEAL BOOK ENDORSEMENT
1With respect, we are of the view that Hambly J.'s order cannot stand because he did not conduct the exercise prescribed in paragraph 5 of Flynn J.'s order of June 26, 2003. Regrettably, on the material before us, we are not able to make the requisite determination. Accordingly, we would allow the appeal, set the order of Hambly J. aside and remit the matter to the Superior Court for determination in accordance with paragraph 5 of Flynn J.'s order.
2Costs to the appellant fixed at $3,150 inclusive of GST and disbursements.