DATE: 20060327

DOCKET: C43770

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

[1] With 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.

[2] Accordingly, the appeal is allowed. In the circumstances, however, costs to the respondent fixed at $7,500, inclusive of GST and disbursements.