DATE: 20060124

DOCKET: C43338

COURT OF APPEAL FOR ONTARIO

RE:

SALVATORE BRANDIFERRI and LINDA BRANDIFERRI (Plaintiffs (Appellants)) – and – THE WAWANESA MUTUAL INSURANCE COMPANY (Defendant (Respondent))

BEFORE:

MOLDAVER, CRONK and LAFORME JJ.A.

COUNSEL:

Alfred M. Kwinter and Jason D. Singer

for the appellants

Martin P. Forget

for the respondents

HEARD & ENDORSED:

January 23, 2006

On appeal from the order of Justice John R. McIsaac of the Superior Court of Justice dated March 10, 2005 made at Barrie, Ontario.

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

[1] We read the reasons of McIsaac J. as dismissing the action based solely on the appellant’s failure to satisfy the costs order of .Eberhard J. dated October 28, 2004. That order did not specify the time within which the costs were to be paid by the appellants. We agree with the appellant’s submission that at the time of the motion before McIsaac J., it was at least arguable that in light of that omission, it was uncertain when the costs were due. Accordingly, we think that McIsaac J. should have given the appellants a reasonable opportunity to pay the outstanding costs award. His failure to do so constituted an error in the circumstances.

[2] Accordingly, the appeal is allowed, the order of McIsaac J. dated March 10, 2005, is set aside and the matter is reinstated on condition that Eberhard J.’s cost award is to be paid within thirty days of today’s date.

[3] We would not interfere with McIsaac J.’s order re costs, to the extent that he ordered an assessment. As for the appeal, costs to the appellants fixed at $3,5000 inclusive of disbursements and G.S.T.