DATE: 20040323

DOCKET: C40479

COURT OF APPEAL FOR ONTARIO

RE:

KWANG-JA BAE, THOMAS JEON and LEO JEON (Plaintiffs/Appellants) –and– TORONTO TRANSIT COMMISSION (Defendant/Respondent)

BEFORE:

SIMMONS, ARMSTRONG JJ.A. and LANE J. ad hoc

COUNSEL:

Richard A. Levin

for the plaintiffs/appellants

Norma Priday

for the defendant/respondent

HEARD AND ENDORSED:

March 22, 2004

On appeal from the order of Justice Ian V.B. Nordheimer of the Superior Court of Justice dated July 7, 2003.

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

[1] We see no error in the interpretation of s. 267(1) of the Railways Act, R.S.O. 1950, c. 331 by Nordheimer J. In our view, the motions judge correctly determined that maintenance is a necessary part of the operation of a subway system. The appeal is therefore dismissed.

[2] Costs are awarded to the respondent, if demanded, in the amount of $1,500, inclusive of disbursements and applicable G.S.T.