DATE: May 14, 2004

DOCKET: C40698

COURT OF APPEAL FOR ONTARIO

RE:

JOHN SUSIN (Plaintiff/Appellant) – and – BONO GENERAL CONSTRUCTION LIMITED, CARMELO BONO, ANNE BONO, and SALVATORE (SAM) BONO (Defendant/Respondents)

BEFORE:

BORINS, SHARPE and JURIANSZ JJ.A.

COUNSEL:

John Susin

appearing in person

E. Savas

for the respondents

HEARD & ENDORSED:

May 14, 2003

On appeal from the order of Justice David S. Crane of the Superior Court of Justice dated August 29, 2003.

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

[1] The motion judge did not have before him the statement of claim in this action, nor did this court. Therefore, on the material before him, the motions judge was not in a position to dismiss this claim on the grounds of res judicata and abuse of process. The motion judge relied on the reasons of Henderson J. in setting aside a default judgment against the respondents on the ground the defences of res judicata and abuse of process had an air of reality. The motion judge erred in relying on these reasons as a conclusive finding.

[2] The appeal is allowed. The order of Crane J. is set aside and there will be an order dismissing the respondents’ motion. Costs to appellant fixed at $1,500 inclusive of disbursements and GST.