DATE: 20040920

DOCKET: C40880

COURT OF APPEAL FOR ONTARIO

RE:

ARDLER FARMS INC. (Plaintiff/Respondent) – and – 1091369 ONTARIO INC. and NICHOLAS BULUT (Defendant)

BEFORE:

LABROSSE, GOUDGE AND BLAIR JJ.A.

COUNSEL:

A. Patrick Wymes

for the appellant

Robert Bigioni

for the respondent Ardler Farms Inc.

Peter Jervis and Gillian Hnatiw

for the respondent 1091369 Ontario Inc.

HEARD & ENDORSED:

September 16, 2004

On appeal from the order of Justice Peter Howden of the Superior Court of Justice dated September 22, 2003.

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

[1] The decision of the motions judge turned on his view, after examining the court file in Action 36358/95 that it had simply been lying dormant since 1996. It appears from the court material before us, which could not have been supplied to the motion judge, that this is not so. In these circumstances, the ends of justice require that the order appealed from be set aside. It will be open to the respondent to renew its motion. If this is done, the degree of delay can be fully and properly canvassed. That motion should be brought in the action in which the certificate was granted, to best ensure that all interested parties are given notice. No order as to costs.