DATE: 20050407

DOCKET: M32211 (C42790)

COURT OF APPEAL FOR ONTARIO

RE:

ALBERT REICHMANN (Plaintiff/Appellant) -and- ZEEV VERED and RON ENGINEERING AND CONSTRUCTION (INTERNATIONAL) LTD. (Defendants/Respondents)

BEFORE:

LASKIN, SIMMONS and CRONK JJ.A.

COUNSEL:

David W. Scott, Q.C. for the moving party Zeev Vered

Stephen Victor, Q.C. for the moving party Ron Engineering and Construction (International) Ltd.

Allan Sternberg and Robert A. Watson for the responding party Albert Reichmann

HEARD AND RELEASED ORALLY:

March 30, 2005

E N D O R S E M E N T

[1] In our view, the motion to quash several paragraphs of the appellant’s notice of appeal dated December 16, 2004 must be allowed. The appellant’s main contention is that the constructive trust issue was part of the second proceedings before Cameron J. and that until it was disposed of, the time for appealing did not begin to run. We disagree.

[2] Although the moving parties sought an order terminating the constructive trust at the second proceedings, Cameron J. did not make any order on this issue, no doubt because money was still owed to the appellant.

[3] We view the order of Cameron J. dated November 16, 2004 terminating the constructive trust as a post-judgment order. The appellant is entitled to appeal that order as of right, but he is not entitled to appeal as of right Cameron J.’s refusal to order tracing or his order changing the shareholding percentages. Those orders were finally made in the second proceedings and the time for appealing them expired long ago.

[4] The appellant’s alternative contention is that we should extend the time for appealing the judgment in the second proceedings. We decline to do so. The appellant has consistently taken the position that he had no intention to appeal from the judgment in the second proceedings and he has consistently taken the position that the judgment in the second proceedings was final and the time for appealing it had expired. In the light of those positions, we do not consider it in the interests of justice to extend the time for appealing.

[5] Accordingly, the motion is allowed. Paragraphs 1, 2, 3, 4 and 8 of the appellant’s notice of appeal, the grounds of appeal corresponding to those paragraphs and the certificate respecting evidence are struck. The time for seeking leave to appeal Cameron J.’s costs order is extended until Monday, April 11, 2005.

[6] The moving parties are entitled to their costs of this motion, including the costs of the expedited motion before Catzman J.A. We fix those costs in the amount of $20,000, inclusive of disbursements and G.S.T.

“John Laskin J.A.”

“Janet Simmons J.A.”

“E.A. Cronk J.A.”