Court of Appeal for Ontario

Citation: Racine v. Hurley, 2010 ONCA 648

Date: 2010-10-05

Docket: C51810

Between:

Andre Racine and Olga Racine

Plaintiffs (Appellants)

and

Mike Hurley, Rose Mary Hurley, Robert Carbonneau, Remax Legend Real Estate Inc. and The Corporation of the City of North Bay

Defendants (Respondents)

Counsel:

Ian N. McLean, for the appellants

Monica Rathod, for the respondents

Heard and orally released: September 17, 2010

On appeal from the order of Justice Norman M. Karam of the Superior Court of Justice dated February 10, 2010.

ENDORSEMENT

[1] The issue before the motion judge was whether there was a genuine issue requiring a trial.

[2] The motion judge misstated the test under the new rule. The appellants contend that this was an error on the part of the motion judge which would require that the appeal be allowed and the matter be sent back to trial. We cannot accord with that submission. The new rule allows greater latitude to the motion judge than the prior rule to which he adverted in his reasons.

[3] The next ground of appeal is that the motion judge erred in finding that there was no evidence to establish either knowledge or causation. In our view, there was evidence from which a trial judge could find knowledge and causation, particularly given the fact that the respondents built the house, a point on which the plaintiffs relied heavily.

[4] Accordingly, we will allow the appeal, set aside the judgment below and remit the matter for trial. Costs will be in the amount of $5,000, including all applicable taxes.

“W. Winkler C.J.O.”

“M. Rosenberg J.A.”

“Pitt J.”