Court of Appeal for Ontario

CITATION: Magine Construction Inc. v. The Moro Group Builders Inc., 2014 ONCA 663

DATE: 20140924

DOCKET: C58509

Juriansz, LaForme and Lauwers JJ.A.

BETWEEN

Magine Construction Inc.

Plaintiff (Appellant)

and

The Moro Group Builders Inc., John Gallucci, Anthony Moro, Marc Anthony Moro, HP Bloor Street Ltd. and The Address Inc.

Defendants (Respondents)

Counsel: Neil Kotnala, for the appellant Jeffrey A. Armel, for the respondents

Heard and released orally: September 19, 2014

On appeal from the judgment of Justice Edward M. Morgan of the Superior Court of Justice, dated February 14, 2014.

ENDORSEMENT

[1] This is an appeal from summary judgment granted to the defendants, dismissing the appellant’s entire claim.

[2] Counsel began by pointing out that the motion judge’s reasons do not reference the alternative claim of unjust enrichment, which was included in the amended statement of claim. On this basis, he argued that the claim should not be considered to have been dismissed.

[3] We refused to entertain this new argument. It was not contained in the factum and was advanced without notice to the respondents’ counsel.

[4] The motion judge had jurisdiction to dismiss the entire claim and, in any event, we see no merit in the argument.

[5] We would dismiss the appeal for essentially the reasons provided by the motion judge, in which we find no error.

[6] Costs to the respondent are fixed at $6,000.00 all inclusive.

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”

“P. Lauwers J.A.”