COURT OF APPEAL FOR ONTARIO

DATE: 20041008

DOCKET: C41491

RE: ARMANDO DE MARCO, ANTOINETTA DE MARCO and DE MARCO DEVELOPMENTS INC. (Plaintiff/Respondents) – and – JOHN MASCITELLI, ANGELO GABRIELE, FILOMENO GABRIELE, JOHN GABRIELE, ROSE MASCITELLI, FRANCES GABRIELE, ROSA GABRIELE, JULIE GABRIELE, 797652 ONTARIO LIMITED, HUMBERSHORE (BOLTON) LIMITED and HUMBERSHORE (BOLTON) LIMITED PARTNERSHIP (Defendants/Appellants)

BEFORE: McMURTRY C.J.O., MACPHERSON and ARMSTRONG JJ.A.

COUNSEL: John L. O’Kane for the appellants

William K. Andrews Q.C. for the respondents

HEARD: October 6, 2004

RELEASED ORALLY: October 6, 2004

On appeal from the order of Divisional Court (Justice Tamarin M. Dunnet, Justice Lee K. Ferrier and Justice Romain W.M. Pitt) dated November 24, 2003.

E N D O R S E M E N T

[1] The appellants brought a motion for summary judgment before LaForme J. He dismissed it. A trial date was set. On January 9, 2002, the trial date was moved to June 3, 2002 by the court. Counsel had consulted and expressly agreed that this was an appropriate date.

[2] On May 14, 2002, the appellants brought a second motion for summary judgment, on different grounds. Jarvis J. dismissed this motion. The Divisional Court dismissed an appeal from this judgment.

[3] The appeal focussed, in part, on the potentially important question of whether a party can bring more than one motion for summary judgment in a proceeding, and on the application of the doctrine of res judicata to this question.

[4] We do not think it is necessary to consider these questions on this appeal. In light of the fact that the appellants brought a second motion for summary judgment virtually on the eve of a 5‑day trial, which they had known about for five months, we think that the Divisional Court did not err in dismissing the appeal from Jarvis J.’s order.

[5] The appeal is dismissed with costs fixed at $5000, inclusive of disbursements and GST.

“McMurtry C.J.O.”

“J. C. MacPherson J.A.”

“R. P. Armstrong J.A.”