COURT OF APPEAL FOR ONTARIO
RE: PATRICK BERRY, JAMES DELUCE, JEFFREY KARELSEN, ROBERT JAMES SIMERSON and ERNEST ZURKAN (Plaintiffs) – and – CHRIS PULLEY, TOM FRASER, JAMES GRIFFITH, PETER WALLACE, GEORGE COCKBURN, DENIS BELHUMEUR, GREG MUTCHLER, GARY DEAN, YVES FILION, HOWARD MALONE, KEVIN VAILLANT and GORDON GREIG (Defendants (Appellants)) – and – KENT HARDISTY (Third Party (Respondent))
BEFORE: McMURTRY C.J.O., CATZMAN, SIMMONS JJ.A.
COUNSEL: Dougald E. Brown for the appellant, Mr. Pulley Brian Shell and Lisa Mallia for the respondent, Mr. Hardisty
HEARD & ENDORSED ORALLY: September 19, 2005
On appeal from the judgment of Justice Maurice C. Cullity of the Superior Court of Justice dated November 29, 2004.
E N D O R S E M E N T
1The issue before the motion judge was whether the respondent had demonstrated that there was no genuine issue for trial.
2In our view, the motion judge improperly weighed the evidence and drew inferences of fact when he concluded that Captain Pulley had not been designated within the meaning of paragraph 1 of the Indemnity and that paragraph 3 of the Indemnity applied only with respect to claims by non-union members against union members.
3This is particularly so in the absence of evidence based on personal knowledge from the respondent concerning the practice of making designations or which individuals were treated as third parties.
4It follows that summary judgment ought not to have been granted in relation to these issues.
5Accordingly, we would allow the appeal and set aside the order of the motion judge dismissing the third party claim.
6Costs of the appeal are awarded to the appellant in the amount of $15,000.
"R. McMurtry C.J.O."
"M. A. Catzman J.A."
"Janet Simmons J.A."