COURT OF APPEAL FOR ONTARIO

DATE: 2004-10-20 DOCKET: C42142

RE: LYDROS INVESTMENTS INC. (Plaintiff/Respondent in Appeal) v. 1451044 ONTARIO INC. (Defendant/Appellant in Appeal)

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 V. Paisley of the Superior Court of Justice dated June 25, 2004.

APPEAL BOOK ENDORSEMENT

[1] We are satisfied that the motion judge should not have proceeded while the appeal on the related matter was outstanding. Having said that, given our dismissal of the appeal in the related matter, we agree with the substance of the result on the motion. We are satisfied, however, that the appellant should have a two month opportunity to redeem the mortgage. The order of Paisley J. will be varied to permit the two month redemption period referred to above.

[2] We are satisfied that the order of costs for the two appearances before the motion judge should be set aside. The motion should not have proceeded on its merits. There should be no costs on the motion.