DATE: 20041020 DOCKET: C41796

COURT OF APPEAL FOR ONTARIO

RE:

1451044 ONTARIO INC., Z & G HARDWOOD FLOORING LIMITED and ZOLTAN BALINT (Plaintiffs/Appellants) v. LYDROS INVESTMENTS INC. (Defendants/Respondents) v. JOSEPH KREINER REAL ESTATE LIMITED and JOSEPH KREINER (Defendants)

BEFORE:

DOHERTY, LASKIN and JURIANSZ JJ.A.

COUNSEL:

Bernard B. Gasee

for the appellant

W.A. Kelly, Q.C.

for the respondent

HEARD & ENDORSED:

October 19, 2004

On appeal from the judgment of Justice Carnwath of the Superior Court of Justice dated April 13, 2004.

APPEAL BOOK ENDORSEMENT

[1] Assuming that the motion judge should have admitted the “soil-Eng” report as some evidence on the summary judgment motion, we are satisfied that it does not offer any support for the contamination claims put forward by the appellant. The report does no more than indicate that three soil samples recorded contaminants above recommended levels for residential use. There was, however, no evidence as to when the contaminants were placed on the property, the effect of those contaminants on the value of the property or the purpose for which the property could be used. The report offers no support for the contamination claims made against the respondent in the statement of claim.

[2] There is no genuine issue for trial with respect to the other causes of action as against this respondent. There are no allegations against the respondent with respect to some of these claims and there was no evidence to support those claims as against the respondent proffered on the motion for summary judgment.

[3] The action was properly dismissed against the respondent. Appeal dismissed.

[4] We have considered costs of this appeal and the related appeal (C42142). In our view, the respondent should have its costs fixed at $5,000.00 “all in”.