DATE: 20051005

DOCKET: C42429

COURT OF APPEAL FOR ONTARIO

RE:

CLIFF CONSTRUCTION LTD. (Appellant/Applicant) – and – ROBERT THOMPSON and PAUL A. JANSEN (Respondents)

AND BETWEEN:

TABITHA THOMPSON (Applicant) – and – ROBERT HILLIS THOMPSON (Respondent)

BEFORE:

LASKIN, CRONK and ARMSTRONG JJ.A.

COUNSEL:

Christine Lacasse

for Cliff Construction Ltd.

Tabitha Thompson

in person

HEARD & ENDORSED:

October 3, 2005

On appeal from the judgment of Regional Senior Justice M. Métivier of the Superior Court of Justice, dated September 9, 2004.

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

[1] The trial of an issue in this case was ordered both in the family law and the trust claim litigation. In that context and where, to the knowledge of all the parties, the quantum of the appellant’s invoice was directly challenged, it was open to the trial judge to inquire into the bona fides of the work claimed in the invoice. The expert evidence led by the respondent before the trial judge demonstrated that the appellant’s invoice was unsupportable. No trust claim arises under the Construction Lien Act for work that was not performed.

[2] Accordingly, we see no basis upon which to interfere with the decision of the trial judge and the appeal is dismissed. The respondent is entitled to her costs of this appeal and her earlier motion to dismiss, fixed in the total amount of $2,500.