DATE: 20050121

DOCKET: C41887

COURT OF APPEAL FOR ONTARIO

RE:

THE HELLENIC COMMUNITY OF KITCHENER WATERLOO and SUBURBS HOUSING INC. (Plaintiffs/Appellants) – and – URBEX MANAGEMENT LIMITED, J.L. CORTES ARCHITECT CORPORATION, J. L. CORTES and THE HALIFAX INSURANCE COMPANY (Defendants/Respondents) – and – COANDA ENGINEERING INCORPORATED (Third Party)

AND RE:

URBEX MANAGEMENT LIMITED (Plaintiffs by Counterclaim/Respondent) – and – THE HELLENIC COMMUNITY OF KITCHENER WATERLOO and SUBURBS HOUSING INC. (Defendant in Counterclaim/Appellants)

BEFORE:

BORINS, SHARPE and MACFARLAND JJ.A.

COUNSEL:

Philip M. Epstein Aaron M. Franks

for the appellant

Andrew M. Robinson and Brett-David Moldaver

for the respondents Urbex Management Limited and Halifax Insurance Company

Andrew A. Lundy

for the respondents J. L. Cortes Architect Corporation and J. L. Cortes

HEARD & ENDORSED:

January 21, 2005

On appeal from the judgment of Justice Robert D. Reilly of the Superior Court of Justice dated May 3, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] We are satisfied that the motion judge did not err in his appreciation of the order of the Court of Appeal and we see no basis on which to interfere with his decision to dismiss this action. As for the dismissal of the action against Cortes, there was no misapprehension on the part of counsel, the two motion court judges and the panel of this court that even though Cortes had not formally moved for dismissal of the action, that it was the intent of the motion brought by Urbex and Halifax that if their motion was successful the result would be the dismissal of the action against all defendants.

[2] Appeal dismissed with costs to Urbex fixed at $6,500 and to Cortes fixed at $3,500, each inclusive of disbursements and GST.