DATE: 20040205

DOCKET: C40124

COURT OF APPEAL FOR ONTARIO

RE:

CONTRACT WELDING & FABRICATING INC. (Plaintiff (Respondent)) – and – M.J. JONES, INC., and MELFYN JOHN JONES (Defendants (Appellants))

BEFORE:

MOLDAVER, MACPHERSON and SIMMONS JJ.A.

COUNSEL:

John McNeil

for the appellant

Jonathan Stainsby

for the respondent

HEARD & ENDORSED:

February 4, 2004

On appeal from the judgment of Justice Alexandra Hoy of the Superior Court of Justice dated May 6, 2003.

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

[1] The motions judge gave careful and considered reasons. We agree with her analysis and conclusion on the summary judgment motion. As for the stay, while we are inclined to think, that the motions judge had jurisdiction under s. 106 of the Courts of Justice Act, it is clear that she engaged in an appropriate analysis, including a weighing and balancing of the relevant factors. In the end, she exercised her discretion against a stay. We see no basis for interfering with her decision.

[2] Accordingly, the appeal is dismissed.

[3] Leave to appeal the costs order made by the motions judge is dismissed. Read fairly and as a whole, we are not persuaded that there is any error in the cost award that justifies leave being granted.

[4] Costs of the appeal to the respondent on a partial indemnity basis fixed at $10,000 inclusive of G.S.T. and disbursements.

Signed: “M.J. Moldaver J.A.”