DATE: 20050628

DOCKET: C41815

COURT OF APPEAL FOR ONTARIO

RE:

NDAVO ZABO (Appellant) – and – UNIVERSITY OF OTTAWA (Respondent)

BEFORE:

SHARPE, BLAIR and ROULEAU JJ.A.

COUNSEL:

Emilio Binavince

for the appellant

Debbie Orth

for the respondent

HEARD & ENDORSED:

June 24, 2005

On appeal from the order of Justice Robert J. Smith of the Superior Court of Justice April 15, 2004.

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

[1] The record before us is unclear as to precisely what procedure was followed. Ordinarily, the relief sought by the defendant would be pursued under rule 21.01(1)(b), that the pleading discloses no cause of action, or under Rule 20 as a motion for summary judgment. We are doubtful that relief could be granted under rule 21.01(3)(a) on the ground that the court has no jurisdiction. In the end, however, we are satisfied that this is one of those exceptional cases where the motion judge was entitled to strike the pleading under rule 25.11 as being so untenable in law having regard to the fact that the dispute is essentially an academic matter, and that the motion judge was entitled to refuse leave to file a fresh statement of claim with respect to the claim in contract.

[2] We are satisfied, having reviewed this full record, that this claim as framed in contract could not possibly succeed.

[3] Accordingly the appeal is dismissed. Costs to the respondent fixed at $2000 inclusive of GST and disbursements.