DATE: 20010111
DOCKET: C34063

COURT OF APPEAL FOR ONTARIO

RE: PATRICK D’AMORE, personally and on behalf of DANRUS CONSTRUCTION LIMITED (Plaintiffs/Appellants) v. DANIEL MICHAEL RUSS, DANRUSS CONTRACTING (1985 WINDSOR), INC., MIDCON CONSTRUCTION LTD., GLORIA RUSS and LARRY COLAUTTI (Defendants/Respondents)

AND RE: DANIEL MICHAEL RUSS (Plaintiff by counterclaim) v. PATRICK D’AMORE, D’AMORE CONSTRUCTION (WINDSOR) LIMITED, PRECISION BUILDERS LIMITED, 617963 ONTARIO INC., and PATRICIA OKE (Defendants by counterclaim)

BEFORE: CARTHY, LASKIN and CHARRON JJ.A.

COUNSEL:
Harry Perlis, for the appellants
Myron W. Shulgan, Q.C., for the respondents

HEARD: December 20, 2000

On appeal from the order of Justice John H. Brokenshire dated March 21, 2000

E N D O R S E M E N T

[1] In a rather unusual move, the appellants brought a motion for an order directing the trial of certain issues that they contended remained outstanding following the 1993 judgment in this action. The judgment had been granted in accordance with Minutes of Settlement entered into between the parties. It had not yet been issued at the time the motion was brought.

[2] The motions judge was not satisfied that the evidence gave rise to all of the proposed issues. He therefore ordered that only some of the proposed issues be tried and refused to direct a trial on other issues. The appellants appeal from the motion judge’s refusal to direct a trial on those other issues.

[3] In our view, the onus was on the appellants to present evidence in support of the order that they requested. The appellants have not satisfied us that the motions judge erred in his assessment of the evidence before him or in staying the subsequent 1999 action on the basis that the issues in that action would be tried in this action. The appeal is dismissed with costs fixed at $5,000.

(signed) “J. J. Carthy J.A.”

(signed) “J. I. Laskin J.A.”

(signed) “Louise Charron J.A.”