Court of Appeal for Ontario

CITATION: Susin v. Precision Builders (Windsor) Limited, 2009 ONCA 5

DATE: 20090106

DOCKET: C48549

Laskin, MacPherson and Armstrong JJ.A.

BETWEEN:

Court File No. 242/85

John Susin

Plaintiff (Appellant)

and

Eugene Goodreau and Goodreau Excavating Ltd., Precision Builders (Windsor) Limited, Canadian General Insurance Company and Pasquale D’Amore

Defendants (Respondents)

AND BETWEEN:

Court File No. 199/85

John Susin

Plaintiff (Appellant)

and

Precision Builders (Windsor) Limited, Canadian General Insurance Company, Eugene Goodreau and Goodreau Excavating Ltd.

Defendants (Respondent)

John Susin, appearing in person

Luigi Di Pierdomenico, for the respondents

Heard: January 5, 2009

On appeal from the order of Justice John H. Brockenshire of the Superior Court of Justice dated February 15, 2008.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals from the order of Brockenshire J. dated 15 February 2008 setting the terms of a reference to be heard with respect to certain issues following a lengthy trial conducted by him.

[2] The appellant claims that the terms of reference as framed by the trial judgment are too broad and include matters (especially litigation, accounting and bookkeeping costs) outside the dredging contract that is the core subject matter of the reference.

[3] We disagree. Paragraph 11 of the trial judgment is broadly worded and permits the trial judge to establish terms of reference related to the subject matter of the litigation. We can see no basis for interfering with the trial judge’s formulation of the terms of reference in a case where he has presided over a very lengthy trial.

[4] The appellant submits, and the respondents concede, that paragraph 18 of the terms of reference is inconsistent with paragraph 12 of the trial judgment. For clarity, the question whether any set-off for deductions should be made before pre-judgment interest is accrued is a matter for the trial judge.

[5] The appeal is allowed, but only to the extent of removing paragraph 18 of the Order.

[6] No costs.