DATE: 20060418

DOCKET: C44721

COURT OF APPEAL FOR ONTARIO

RE:

GERALD MCDOUGALL (Plaintiff/Respondent) –and- ANDRE LANOUE PONTIAC BUICK INC. CRAIG LANOUE (Defendants/Appellants)

BEFORE:

LASKIN, MACFARLAND AND LAFORME JJ.A.

COUNSEL:

Samuel A. Mossman

for the appellants

Raymond Colautti

for the respondent

HEARD & ENDORSED:

April 13, 2006

On appeal from the order of Justice Richard C. Gates of the Superior Court of Justice, dated December 22, 2004 made at Windsor, Ontario.

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

[1] The defendants did not deliver their affidavit of documents for seven years. Under rule 24, the delivery of the affidavit was a condition precedent to bringing the motion to dismiss for delay.

[2] In these circumstances, the motion judge did not err in exercising his discretion by refusing the defendants’ motion.

[3] The appeal is dismissed without costs.