DATE: 20031126

DOCKET: C40248

COURT OF APPEAL FOR ONTARIO

RE:

JAMES HACKING (Plaintiff/Appellant) –and– SKYJACK INC. and LINAMAR CORPORATION (Defendants/Respondents)

BEFORE:

CATZMAN, ABELLA and SIMMONS JJ.A.

COUNSEL:

Harvey T. Strosberg, Q.C. and David L. Robins

for the appellant

Malcolm J. MacKillup and Pamela Leiper

for the respondents

HEARD AND ENDORSED:

November 26, 2003

On appeal from the order of Justice Carl Zalev of the Superior Court of Justice dated June 4, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] On the state of the record that was before the motions judge, it could not be said that there was no genuine issue for trial with respect to the question of Linamar’s liability to the appellant for intentional interference with economic relations. There was evidence, including the evidence of actions taken by officers of Linamar and of documents sent by and to Linamar, such that it cannot be said, with the certainty that a motion for summary judgment requires, that dismissal of the appellant’s claim against Linamar is inevitable.

[2] The appeal is allowed, paragraphs 1 and 2 of the order of the motions judge are set aside and, in their place, an order will go dismissing Linamar’s motion for summary judgment. An order will go for the assessment of the appellant’s costs of the motion before the motions judge. Costs of the appeal will be fixed in the amount of $10,000, including disbursements and G.S.T. This amount is less than the amount to which counsel were prepared to agree, but is consistent with the range of costs this court generally awards on appeals of this nature.