DATE: 20051117

DOCKET: C43102

COURT OF APPEAL FOR ONTARIO

RE:

VERA R. DICKINSON (Plaintiff/Appellant) –and- TORONTO AND REGION CONSERVATION AUTHORITY, CRAIG MATHERS, RON DEWELL, RUSSELL WHITE, HAWKSITE INCORPORATED, ROBERT LAWRIE, CHESTNUT PARK REAL ESTATE LIMITED (Defendants/Respondents)

BEFORE:

LABROSSE, ROSENBERG GILLESE JJ.A.

COUNSEL:

Vera R. Dickinson

In person

M. Steiber

for the respondent Toronto and Region Conservation Authority

Aaron Postelnick

For the respondent Chestnut Park Real Estate Ltd.

HEARD & ENDORSED:

November 16, 2005

On appeal from the judgment of Karakatsanis J. of the Superior Court of Justice, dated February 2, 2005 made at Toronto, Ontario.

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

[1] At the outset, we would point out that a Rule 20 motion brought by a plaintiff for summary judgment that fails does not preclude a later Rule 21 motion by a defendant. The issues are different. The first was whether the claim could be proven without providing oral evidence. The second is whether the claim can be dismissed on a point of law. No issue estoppel arises.

[2] In a previous action, a panel of this court determined that Mrs. Dickinson “has no legal capacity to sue the respondents.”

[3] This action, in which the parties are the same (save for the limited company), and the factual allegations and the foundation of the claim are the same, is an attempt to re-litigate the issues in the previous action. At the very least, everything in this action could have been included in the previous action.

[4] The action is res judicata.

[5] The appeal is dismissed with costs fixed at $1,000.00