DATE: 20030311

DOCKET: C38673

COURT OF APPEAL FOR ONTARIO

RE: JOHANNA SIMONS (Plaintiff/Appellant) –and– RICHARD C. BUCK (Defendant/Respondent)

BEFORE: CATZMAN, CARTHY and MOLDAVER JJ.A.

COUNSEL: R. Lee Akazaki for the plaintiff/appellant Patrick D. Schmidt and George Karahotzitis for the defendant/respondent

HEARD: February 28, 2003

RELEASED ORALLY: February 28, 2003

On appeal from the order of Justice Bonnie L. Croll of the Superior Court of Justice dated August 1, 2002.

E N D O R S E M E N T

[1] The assessment officer’s reasons for decision made no finding on the question of negligence, either explicitly or, in our view, implicitly. The absence of such a finding removes the foundation for argument by either party to this appeal that issue estoppel precludes the appellant from alleging, or the respondent from denying, the issues of negligence or breach of contract in the action brought by the appellant against the respondent subsequent to the assessment. This case differs from Susin v. Baker, [1997] O.J. No. 834 (C.A.) because, unlike as in the present case, the determination in that case that the solicitor’s bill should be paid in full necessarily involved a rejection of the “central issue” of negligence that was the basis on which payment of the bill was resisted.

[2] Counsel for the appellant advised the court that he was instructed to withdraw from the appeal his submissions in support of the cross-motion raised by the appellant before Croll J. but not determined by her.

[3] The appeal is allowed, the order of Croll J. is set aside and, in its place, an order will go dismissing the respondent’s motion before her save that, on consent, that portion of the respondent’s motion for an order striking the jury notice served by the appellant is remitted to the Superior Court of Justice for hearing and disposition.

[4] The appellant is entitled to her costs of the appeal, which we fix in the amount of $3,000, and of the motion before Croll J., which we fix in the amount of $1,500. The total of these costs, $4,500, is to be paid within 30 days of this date.

“M. A. Catzman J.A.”

“J. J. Carthy J.A.”

“M. J. Moldaver J.A.”