COURT OF APPEAL FOR ONTARIO

DATE: 20031128

DOCKET: C39437

RE: HARPINDER DEOL (Plaintiff/Respondent) –and– FAIRCHOICE MORTGAGEE CORPORATION and COLLETTE HANDY (Defendant/Appellant)

BEFORE: CATZMAN, ABELLA and SIMMONS JJ.A.

COUNSEL:

Winston G. Mattis for the appellant

No one appearing for the for the respondent

HEARD AND ENDORSED: November 28, 2003

On appeal from the judgment of Justice Christopher M. Speyer of the Superior Court of Justice dated December 20, 2002.

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

[1] The argument made in this case regarding the statutory bar in the Employment Standards Act was neither pleaded nor apparently argued before the motions judge. In view of this, and of the facts in issue, we are of the view that the appeal should be allowed, the summary judgment should be set aside in its entirety and the motion for summary judgment should be dismissed. An order will go accordingly.

[2] We make no order as to costs.