DATE: 20041109

DOCKET: C41331

COURT OF APPEAL FOR ONTARIO

RE:

HARRY STINSON REALTY CORP. (Plaintiff (Defendant by Counterclaim) (Appellant)) – and – MASON HOMES LIMITED (Defendant (Plaintiff by Counterclaim) (Respondent))

BEFORE:

GOUDGE, FELDMAN AND LANG JJ.A.

COUNSEL:

Joyce Harris

for the appellant

Greg Roberts

for the respondent

HEARD:

November 2, 2004

RELEASED ORALLY:

November 2, 2004

On appeal from order of Justice Rose Boyko of the Superior Court of Justice dated January 8, 2004.

E N D O R S E M E N T

[1] This is an appeal from the decision of the motion judge dated January 8, 2004. She found that the services provided by the appellant were the very real estate services relied on by the defendant to effect sales to the public.

[2] In our view, the scope of the service to be provided by the appellant was a matter of factual dispute. The appellant’s affidavit makes this clear. The appellant’s position is that it was to provide services different from those covered by the Real Estate and Business Brokers Act. The respondent contests this. This dispute requires a trial so that the precise services can be determined and then assessed against the legislative language and its purpose.

[3] The appeal must therefore be allowed and the motion for summary judgment dismissed. Costs to the appellant fixed at $4000.

“S.T. Goudge J.A.”

_ “K. Feldman J.A.”

_ “Susan Lang J.A.”