Court File and Parties

CITATION: Matz v. Copley, 2011 ONCA 485

DATE: 20110630

DOCKET: C52932

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Karakatsanis JJ.A.

BETWEEN

Harold Matz and Mary Matz

Plaintiffs (Appellants)

and

Normal Copley, Marilyn Copley and Castlerock Home Inspections

Defendants (Respondents)

Counsel: Derek Fazakas, for the appellants Philip Garbutt, for Castlerock Home Inspections Marc Munro, for the Copley respondents

Heard and released orally: June 28, 2011

On appeal from the order of Justice Ramsay of the Superior Court of Justice, dated October 7, 2010.

ENDORSEMENT

[1] The appellants, Harold and Mary Matz, appeal from the decision of Ramsay J. of the Superior Court of Justice dated October 7, 2010 dismissing their action against all defendants. He did so pursuant to two motions for summary judgment brought under the new Rule 20 of the Rules of Civil Procedure. The action related to alleged defects found in a house purchased by the Matzs from the Copleys. The Matzs sued the Copleys and the home inspector they had retained, Castlerock Home Inspections.

[2] The appellants contend that the motion judge did not take a hard look at the evidence. We disagree. He reviewed the evidence of the Matzs’ expert, Gary Emsley, and that of Mrs. Copley and concluded that Emsley’s evidence was insufficient to ground a case in fraud against the Copleys, which was the Matzs’ claim.

[3] Nor did the motion judge err by awarding summary judgment in favour of Castlerock. The Castlerock inspection report clearly identified defects which Mr. Matz confirmed in his testimony. Moreover, the Castlerock report contained the limitation that 80 per cent of the foundation wall was not visible.

[4] The appellants assert that the motion judge’s interaction with their counsel raises a reasonable apprehension of bias against the appellants and their counsel on the part of the motion judge. There is not a sufficient basis in this record to support such a serious allegation.

[5] The appeal is dismissed. The Copleys and Castlerock are entitled to their costs of the appeal fixed at $7,500 each, inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“R.G. Juriansz J.A.”

“Karakatsanis J.A.”