Court File and Parties

CITATION: Godoy v. 475920 Ontario Ltd., 2008 ONCA 801

DATE: 20081128

DOCKET: C47836

COURT OF APPEAL FOR ONTARIO

Rosenberg, Sharpe and Blair JJ.A.

BETWEEN:

Jose Godoy, Maria Godoy, Melanie Godoy

Plaintiffs (Appellants)

and

475920 Ontario Ltd., Maple Leaf Property Management, Jason Colson, Jarvis Locke

Defendants (Respondents)

Counsel:

Graeme Mew, for the appellants

Michael Burgar and Robert Ben for the respondents

Heard and released orally: November 14, 2008

On appeal from the judgment of Justice Thomas Lederer of the Superior Court of Justice dated September 18, 2007.

ENDORSEMENT

[1] Despite Mr. Mew’s very helpful argument, we have not been persuaded that we should allow this appeal. This court in several recent decisions, most particularly Smith Estate v. College of Physicians & Surgeons of Ontario (1998), 1998 CanLII 1523 (ON CA), 41 O.R. (3d) 481 at 494-6, leave to appeal refused at [1998] S.C.C.A. No. 635, has held that if the principal claim is statute barred the derivative claim under the Family Law Act is also barred. In our view, the distinction that in this case unlike Smith Estate no claim was brought by the Estate is not a basis for refusing to apply Smith Estate. Given the decisions of this court and the decision of the Supreme Court of Canada in Murphy v. Welsh, 1993 CanLII 59 (SCC), [1993] 2 S.C.R. 1069, if there is to be any change in the law it will have to come from the Supreme Court of Canada.

[2] This appeal is dismissed with costs fixed at $7,500 inclusive of G.S.T. and disbursements.

Signed: “M. Rosenberg J.A.”

“Robert J. Sharpe J.A.”

“R. A. Blair J.A.”