COURT OF APPEAL FOR ONTARIO
RE:
MOD-AIRE HOMES LIMITED (Plaintiff/Appellant) – and – GEORGE FERNICOLA and PARADISE PARK DEVELOPMENT LIMITED (Defendants/Respondents)
BEFORE:
DOHERTY, MOLDAVER and GILLESE JJ.A.
COUNSEL:
Robert A. Watson
for the appellant
Michael R. Kestenberg
for the respondent
HEARD & ENDORSED:
March 24, 2006
On appeal from the order of JusticeAndromache Karakatsanis of the Superior Court of Justice dated June 6, 2005.
A P P E A L B O O K E N D O R S E M E N T
1With one qualification, we are satisfied that the motion judge correctly determined that the claim, as framed, cannot proceed. We would vary the order by striking paragraph 1 and replacing it with a paragraph that reads as follows:
This court orders the statement of claim is struck with leave to issue a new claim in accordance with paragraph 2 of the Order.
2Accordingly, the appeal is allowed. In the circumstances, however, costs to the respondent fixed at $7,500, inclusive of GST and disbursements.