DATE: 20050308

DOCKET: M31603 C42108 and C41355

COURT OF APPEAL FOR ONTARIO

RE:

BEMAR CONSTRUCTION (ONTARIO) INC. (Plaintiff (Appellant)) – and – THE CORPORATION OF THE CITY OF MISSISSAUGA (Defendant (Respondent))

A N D B E T W E E N:

THE CORPORATION OF THE CITY OF MISSISSAUGA (Plaintiff by Counterclaim (Respondent)) – and – BEMAR CONSTRUCTION (ONTARIO) INC. and BEMAR CONSTRUCTION LTD. (Defendants by Counterclaim (Appellant))

BEFORE:

SIMMONS, GILLESE AND LAFORME JJ.A.

COUNSEL:

R.S.M. Woods

for the moving party

Lawrence Ryan

for BeMar Construction (Ontario) Inc., and Bemar Construction Ltd.

HEARD & RELEASED ORALLY:

March 4, 2005

Motion for an order to quash appeal C42108 and responding motion for an order setting aside the Registrar’s order dismissing appeal C41355 and for other relief.

E N D O R S E M E N T

[1] We agree that appeal C42108 (the “second appeal”) must be quashed. The appellant had previously filed a notice of appeal arising from the trial judge’s decision on the merits. That appeal was dismissed for delay after the appellant failed to comply with the time requirements for ordering transcripts. The portion of the second appeal relating to the trial judge’s decision on the merits is therefore an abuse of process. Appeal C42108 is therefore quashed.

[2] As for appeal C41355, we would exercise our discretion to set aside the Registrar’s order dismissing the appeal for delay. While we agree that Bemar delayed in bringing its set aside motion, in our view, the fact that the formal judgment was not settled until September 24, 2004 provides an adequate explanation.

[3] The order of the Registrar in C41355 is therefore set aside on the following conditions:

(1) Mr. Ryan shall bring a motion on proper material requesting permission to represent Bemar within 30 days from today;

(2) Bemar shall serve and file a fresh as amended notice of appeal within 60 days from today and that notice may include an appeal of the costs order and a request for leave to appeal that order;

(3) Bemar shall file proof that it has ordered and undertaken to pay for all of the transcripts relating to the appeal within 15 days from today.

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

“H.S. LaForme J.A.”