DATE: 20060130

DOCKET: C43477

COURT OF APPEAL FOR ONTARIO

RE:

LEONARD WHEELER (Plaintiff (Appellant)) – and – THE GENERAL ACCIDENT INSURANCE COMPANY OF CANADA and/or CGU INSURANCE COMPANY OF CANADA (Defendants (Respondents))

BEFORE:

MOLDAVER, CRONK AND LAFORME JJ.A.

COUNSEL:

Paul R. Sweeny

for the appellant

Raymond A.D. watt

for the respondent

HEARD & ENDORSED:

January 27, 2006

On appeal from the order of Justice Patrick Flynn of the Superior Court of Justice dated April 6, 2005 made at Hamilton.

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

[1] The refusal to set aside the Notice of Discontinuance in action 5411/98 was discretionary. We see no basis for appellate intervention with the manner in which the motion judge exercised his discretion. Assuming without deciding that the motion judge may have erred in his assessment of prejudice, the test for special circumstances has not been met in this case. The appellant did not pursue any other grounds of appeal. Accordingly, the appeal is dismissed with costs to the respondent fixed at $6,000 inclusive of G.S.T. and disbursements.