Court File and Parties

CITATION: McKinley v. Berrardelli, 2008 ONCA 774

DATE: 20081117

DOCKET: C48567

COURT OF APPEAL FOR ONTARIO

Doherty, Cronk and Juriansz JJ.A.

BETWEEN:

Maura McKinley

Appellant/Plaintiff

and

Carmine Egidio Berrardelli, Arcangelo D’Agostino, Nicola Folino and Nicola Alfarano c.o.b. as C.A.N.N. Investments

Respondents/Defendants

Kathleen Erin Cullin, for the appellant

Lucille Shaw, for the respondents

Heard: November 7, 2008

On appeal from the order of Justice J.S. Poupore of the Superior Court of Justice dated February 13, 2008.

APPEAL BOOK ENDORSEMENT

[1] This case turns on the application of s. 5(1)(b) of The Limitations Act, 2002. The primary facts are not in issue – there is no credibility contest in this case. In the circumstances of this case, there was an evidentiary burden on the plaintiff/appellant to establish due diligence. That burden was not met in this case. The appeal, therefore, is dismissed.

[2] The respondents are entitled to their costs in the amount of $5,000, inclusive of disbursements and GST.