COURT OF APPEAL FOR ONTARIO

DATE: 20040602
DOCKET: C40837

RE:

PETER KERLING and WILMA KERLING (Plaintiffs (Respondents)) - and - RICHARD FOREMAN (Defendant (Appellant))

BEFORE:

MOLDAVER, GILLESE and BLAIR JJ.A.

COUNSEL:

Donald J. Catalano, Q.C. for the appellant

Ross C. McLean for the respondent

HEARD & ENDORSED:

June 2, 2004

On appeal from the order of Justice Peter Hambly of the Superior Court of Justice dated October 1, 2003.

APPEAL BOOK ENDORSEMENT

[1] With respect, we are of the view that Hambly J.'s order cannot stand because he did not conduct the exercise prescribed in paragraph 5 of Flynn J.'s order of June 26, 2003. Regrettably, on the material before us, we are not able to make the requisite determination. Accordingly, we would allow the appeal, set the order of Hambly J. aside and remit the matter to the Superior Court for determination in accordance with paragraph 5 of Flynn J.'s order.

[2] Costs to the appellant fixed at $3,150 inclusive of GST and disbursements.