DATE: 20041001 DOCKET: C40901

COURT OF APPEAL FOR ONTARIO

RE:

GREY CONDOMINIUM CORPORATION NO. 29 on its own behalf and on behalf of all of the unit owners of Grey Condominium Corporation No. 29 (Respondent) – and – BLUE MOUNTAIN RESORTS LIMITED, THE CORPORATION OF THE TOWNSHIP OF COLLINGWOOD, ENNIO PICINNATO, ARCHITECT INC. and ENNIO PICINNATO (Appellant)

BEFORE:

CATZMAN, DOHERTY and ARMSTRONG JJ.A.

COUNSEL:

R. B. Moldaver, Q.C.

for the appellant Blue Mountain Resorts Limited

Jonathan Speigel

for the respondent

HEARD AND ENDORSED:

September 27, 2004

On appeal from the Order of Justice J.L. MacFarland of the Superior Court of Justice dated October 27, 2003.

APPEAL BOOK ENDORSEMENT

[1] After 2-1/2 days of trial, the trial judge permitted counsel for the plaintiff (respondent in this court) to withdraw an admission which he made prior to trial and at the opening of trial in respect of the plaintiff’s claim for damages.

[2] In order to permit counsel for the defendant (appellant in this court) to consider his position and to take such steps as may be advised, the trial judge ordered a mistrial and awarded the defendant the costs thrown away.

[3] The appellant seeks to set aside the trial judge’s order permitting the withdrawal of the admission. Assuming without deciding that, as both counsel submitted, the order under appeal is a final order, we see no reason to interfere. In our view, the order of the trial judge involved the exercise of her discretion. The order produces no prejudice to the defendant. We therefore dismiss the appeal.

[4] Costs are awarded to the respondent fixed in the amount of $5,000 inclusive of disbursements and Goods and Services Tax which sum shall be set off against the costs ordered by the trial judge.