DATE: 20030417

DOCKET: C39143

COURT OF APPEAL FOR ONTARIO

RE:

798839 ONTARIO LIMITED and JACOBUS N. HANEMAAYER (Applicants) (Appellants) – and – ALL-TERRAIM TRACK SALES & SERVICE LTD. AAVDEX CORPORATION and ANDRE JOSEPH BOUDREAU (Respondents) (Respondents)

BEFORE:

WEILER, ABELLA and ARMSTRONG JJ.A.

COUNSEL:

Stephen Lamont,

for the appellants

Guy A. Wainwright,

for the respondents

HEARD:

April 17, 2003

On appeal from the order of Justice James M. Farley of the Superior Court of Justice dated October 30, 2002

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

[1] We agree with Farley J. that the original statement of claim did not cover the claims in issue.

[2] We also agree that prior to September 28, 1992 when an order was made granting the amendment to the statement of claim, there was no “proceeding calling into question an interest” in the claims.

[3] The question of whether the curative provision in s. 136 applies to the situation in issue was not argued before Farley J. It was raised in this appeal by the appellant. The respondent argues that it did not have the opportunity to put before Farley J. evidence, including viva voce evidence that a substantial wrong or injustice had been occasioned. Thus, we are not in a position to decide this issue.

[4] We, therefore, dismiss the appeal on issues one and two. The issue of whether to apply s. 136 is remitted to Farley J. In the circumstances, there will be no costs.