Court of Appeal for Ontario

Citation: Trihar Holdings Ltd. v. Lambton (County), 2008 ONCA 360 Date: 2008-05-07 Docket: C47889

Between: Trihar Holdings Ltd. in trust, Plaintiff (Appellant) and The Corporation of the County of Lambton, Defendant (Respondent)

Before: Lang, Watt and Epstein JJ.A.

Counsel: Morris Cooper for the appellant Robert Brent for the respondent

Heard and released orally: May 5, 2008

On appeal from the order of Justice J.M. Donohue of the Superior Court of Justice, dated October 16, 2007.

APPEAL BOOK ENDORSEMENT

[1] The motion judge correctly set out the test under rule 21.01(1)(b) and we are not persuaded of any error in his application of that test. The core issue related to whether the asbestos was a latent or patent defect. On the basis of the facts pleaded in the statement of claim, the motion judge concluded the defect was patent since the presence of asbestos was included in the inspector’s report that had been commissioned by the appellant. The motion judge’s conclusion was a finding of law, which he was entitled to make on a Rule 21 motion. See Tony’s Broadloom v. N.C.M. Canada Inc. (1996), 1996 CanLII 680 (ON CA), 31 O.R. (3d) 481. This finding, in our view, disposes of the entirety of the appellant’s claim.

[2] We are also of the view that it was within the motion judge’s discretion to hear the motion even at what might be considered a relatively late stage of the proceedings.

[3] Finally, the motion judge was entitled to consider documents specifically referred to in the statement of claim and his reasons do not disclose that he improperly used those documents.

[4] Accordingly, the appeal is dismissed. Costs of the appeal to the respondent, fixed in the amount of $5,000, inclusive of disbursements and G.S.T.