DATE: 20041217

DOCKET: C41669

COURT OF APPEAL FOR ONTARIO

RE:

CHARLES PROSPERINE, 157924 CANADA INC. (carrying on business as Charles Prosperine Holding Co.), INTERPROVINCIAL PAVING INCORPORATED and INTERPROVINCIAL PAVING COMPANY LIMITED (Plaintiffs (Appellants)) – and – REGIONAL MUNICIPALITY OF OTTAWA-CARLETON, J. DOUGLAS CAMERON, DONALD W. WILSON, RICHARD DENHAM and PATRICK McNALLY (Defendants (Respondents))

BEFORE:

McMURTRY C.J.O. GOUDGE AND BLAIR JJ.A.

COUNSEL:

James O’Grady, Q.C.

for the appellant

Richard G. Dearden and Wendy J. Wagner

for the respondent

HEARD & RELEASED ORALLY:

December 10, 2004

On appeal from the order of Justice Bernard J. Manton of the Superior Court of Justice dated January 8, 2004.

E N D O R S E M E N T

[1] In our view the essence of the motion judge’s finding is that after nine years the fundamental recasting of this litigation will inevitably prejudice the respondent, particularly given the expiry of the applicable limitation period. The litigation as recast will now for the first time focus very much on the proximity of the relationship between the appellant and the respondent and the standard of care said to rest on the respondent in doing its investigation work now some ten years ago.

[2] The motion judge clearly concluded that this would be unfair. This was an exercise of judicial discretion. The motion judge applied the proper legal test to be issued before him and made no other error in principle. In the circumstances, there is no basis to interfere with his decision. The appeal must be dismissed.

[3] As to the cross-appeal, keeping in mind the reasonableness principle applicable to costs, we see no error in the award made by the motion judge. Leave to appeal costs is granted, but the cross-appeal is dismissed.

[4] Taking into account the divided success, costs to the respondent in the amount of $18,000 all inclusive.

“Roy R. McMurtry C.J.O.”

“S.T. Goudge J.A.”

“R.A. Blair J.A.”