DATE: 20030624

DOCKET: C38896

COURT OF APPEAL FOR ONTARIO

RE:

EVANGELINE FITTON and ROBERT FITTON (Plaintiffs/Respondents) v. THE CORPORATION OF THE CITY OF OSHAWA, JOAN PATRICIA SMITH AND WILILAM RONALD EARL SMITH (Defendants/Appellants)

BEFORE:

O’CONNOR A.C.J.O., MORDEN and SHARPE JJ.A.

COUNSEL:

C. Kirk Boggs

for the appellant

Jason Hunt

for the respondent

HEARD & ENDORSED:

June 18, 2003

On appeal from the order of Justice H. McLean of the Superior Court of Justice dated September 17, 2002.

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

[1] Notwithstanding the very able argument of appellant’s counsel, we are not prepared to conclude, as a matter of law, in the context of a motion under Rule 21.01(1)(a), that the giving of a wrong address in a notice under s. 284(5) of the Municipal Act necessarily renders the notice invalid. A determination of the sufficiency of the notice in this case raises a factual issue, not appropriately dealt with on this Rule 21 motion. The appeal is therefore dismissed.

[2] Costs to the respondent on a partial indemnity scale are fixed in the amount of $2,500, inclusive of disbursements and G.S.T. to be payable at the discretion of the trial judge.