COURT OF APPEAL FOR ONTARIO

DATE: 20050929

DOCKET: C42821

RE: PATRICK BERRY, JAMES DELUCE, JEFFREY KARELSEN, ROBERT JAMES SIMERSON and ERNEST ZURKAN (Plaintiffs) – and – CHRIS PULLEY, TOM FRASER, JAMES GRIFFITH, PETER WALLACE, GEORGE COCKBURN, DENIS BELHUMEUR, GREG MUTCHLER, GARY DEAN, YVES FILION, HOWARD MALONE, KEVIN VAILLANT and GORDON GREIG (Defendants (Appellants)) – and – KENT HARDISTY (Third Party (Respondent))

BEFORE: McMURTRY C.J.O., CATZMAN, SIMMONS JJ.A.

COUNSEL: Dougald E. Brown for the appellant, Mr. Pulley Brian Shell and Lisa Mallia for the respondent, Mr. Hardisty

HEARD & ENDORSED ORALLY: September 19, 2005

On appeal from the judgment of Justice Maurice C. Cullity of the Superior Court of Justice dated November 29, 2004.

E N D O R S E M E N T

[1] The issue before the motion judge was whether the respondent had demonstrated that there was no genuine issue for trial.

[2] In our view, the motion judge improperly weighed the evidence and drew inferences of fact when he concluded that Captain Pulley had not been designated within the meaning of paragraph 1 of the Indemnity and that paragraph 3 of the Indemnity applied only with respect to claims by non-union members against union members.

[3] This is particularly so in the absence of evidence based on personal knowledge from the respondent concerning the practice of making designations or which individuals were treated as third parties.

[4] It follows that summary judgment ought not to have been granted in relation to these issues.

[5] Accordingly, we would allow the appeal and set aside the order of the motion judge dismissing the third party claim.

[6] Costs of the appeal are awarded to the appellant in the amount of $15,000.

"R. McMurtry C.J.O."

"M. A. Catzman J.A."

"Janet Simmons J.A."