DATE: 20010216
DOCKET: C34902
COURT OF APPEAL FOR ONTARIO
RE: STEVEN SCHERER v. PETER D. GATES, 826534 ONTARIO LIMITED and RECREATIONAL ADVENTURES INC.
BEFORE: MORDEN, WEILER and CHARRON JJ.A.
COUNSEL: Anthony T. Keller and Steven Mucha for the Plaintiff (Appellant) Daryl W. Schnurr, for the Defendants (Respondents)
HEARD: February 13, 2001
On appeal from the judgment of Mr. Justice Peter B. Hambly dated August 10, 2000.
E N D O R S E M E N T
Released Orally: February 13, 2001
[1] It is clear that there is no genuine issue for trial. Accordingly, there is no basis for setting aside the summary judgment. It was open to the motions judge to deal with the motion for summary judgment notwithstanding that the plaintiff had moved to discontinue under Rule 23. Summary judgment resulted in a res judicata in favour of the defendants. This would not necessarily have been the result if the plaintiff had discontinued under Rule 23.
[2] With respect to paragraph 2 in the formal judgment, by reason of the order of Wallace J., the motions judge did not have jurisdiction to make an order respecting the costs of the motion made in June of 1998. Wallace J’s order stood until it was set aside. No motion was made to set it aside.
[3] We are not persuaded that the motions judge erred in any of the other dispositions set forth in his formal judgment. It was open to him, on the basis of what is set forth in paragraph 28 of his reasons, to award costs on a solicitor and client basis.
[4] Accordingly, the appeal is allowed to the extent only of setting aside paragraph 2 in the formal judgment. The balance of the appeal is dismissed . We make no order with respect to the costs of the appeal, including the costs of the motion on December 12, 2000.
“J.W. Morden J.A.”
“K.M. Weiler J.A.”
“Louise Charron J.A.”