DATE: 20041118

DOCKET: C40914 (M31846)

COURT OF APPEAL FOR ONTARIO

RE: HALTON CONDOMINIUM CORPORATION NO. 242 (Plaintiff/Respondent) – and – LAW DEVELOPMENT GROUP (GEORGETOWN) LIMITED, THE CORPORATION OF THE TOWN OF HALTON HILLS and THE ONTARIO NEW HOME WARRANTY PROGRAM (Defendants/Appellant)

BEFORE: CATZMAN, SHARPE and GILLESE JJ.A.

E N D O R S E M E N T

BY THE COURT:

[1] This appeal was argued before this panel on July 21, 2004.

[2] On July 26, 2004, this panel released its endorsement allowing the appeal. In our endorsement, we set aside the default judgment against the appellant and set aside the order of the master striking out the statement of defence.

[3] By notice of motion dated October 7, 2004, the respondent sought “an order pursuant to Rule 59.06 granting terms as a condition of setting aside the default judgment”, such terms to include the posting of security for the future costs of the respondent and the amount of the judgment, or a portion thereof, and the maintenance of the registration of any writs of seizure and sale with respect to the judgment.

[4] We queried the jurisdiction of the Court of Appeal to grant the relief sought upon the motion, and conveyed our concern to counsel for both parties.

[1] By letter dated November 1, 2004, Mr. Fedson, counsel for the respondent, made submissions to the effect that we had jurisdiction.

[2] By letter dated November 3, 2004, Mr. Slaght, counsel for the appellant, did not directly address the question of jurisdiction, but submitted that, even assuming that we had jurisdiction, we should reject the respondent’s motion.

[3] By letter dated November 3, 2004, Mr. Fedson noted that no issue was taken by Mr. Slaght with his submissions as to the jurisdiction to hear the motion under rule 59.06.

[4] We are dubious of our jurisdiction to entertain this motion. The rule under which it is made, rule 59.06, provides for the amendment, setting aside or variation of an order upon “a motion in the proceeding”. “Proceeding” is defined in rule 1.03 to mean an action or an application. While that definition applies to the action currently pending in the Superior Court of Justice, it does not extend to this appeal, of which we disposed some four months ago.

[5] However, as Mr. Slaght did not express any concern regarding our jurisdiction, we are prepared to deal with the motion as if our jurisdiction is conceded.

[6] Assuming that we have such jurisdiction, this is not, in our view, a case in which we should grant the relief sought. No request for such relief was made of this court when the appeal was heard and determined last July. No proper material has been filed in support of the motion deposing to the necessity for such relief and the prejudice the respondent would suffer if the order were not made.

[7] In these circumstances, we dismiss the motion, without prejudice to the respondent’s entitlement, if so advised, to move for the relief sought on this motion in the Superior Court of Justice upon proper and appropriate material.

[8] The motion is dismissed. We make no award with respect to costs.

Signed: “M.A. Catzman J.A.”

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”