COURT FILE NO.: 775/02

DATE: 20040204

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

macfarland, crane and c. campbell jj.

B E T W E E N:

LOPES DRYWALL & ACOUSTICS CORP.

Plaintiff (Appellant)

• and -

THE SISTERS OF ST. JOSEPH FOR THE DIOCESE OF TORONTO IN UPPER CANADA and BONDFIELD CONSTRUCTION COMPANY (1983) LIMITED

Defendant (Respondent)

Kenneth W. Movat and Kathryn Lack, for the Appellant

Howard M. Wise and Jennifer A. Leitch, for the Respondent Bondfield Construction Company (1983) Limited

HEARD: February 4, 2004

CRANE J.: (Orally)

1The appellant Lopes seeks an order setting aside the order of Master MacLeod dated December 13th, 2002. The appellant submits procedural unfairness resulting in an order to its prejudice. The appellant concedes the order lies within the jurisdiction of the Master.

2The grounds submitted by the appellant is that the order was made without any notice or a formal notice of motion and supporting materials so as to preclude the appellant the opportunity for an explanation of its defaults of the previous orders.

3In our view, this record discloses full notice to Lopes. The endorsement and order of 24 September gives notice of the subject issue in paragraph 5 of the order and paragraph 11 on the endorsement.

4Accordingly, we are all of the view that there was no overriding and palpable error nor that the discretion of the Master was exercised under any erroneous principle. In the result, the appeal is respectfully dismissed.

MACFARLAND J.

5The appeal book will read: “For reasons given this day, the appeal is dismissed. Costs to the respondent fixed in the sum of $4,000, inclusive of disbursements and GST.”

MACFARLAND J.

CRANE J.

C. CAMPBELL J.

Date of Reasons for Judgment: February 4, 2004

Date of Release: February 6, 2004

COURT FILE NO.: 775/02

DATE: 20040204

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

macfarland, crane and c. campbell jj.