Court of Appeal for Ontario

Date: 2019-08-13 Docket: C65298

Panel: Hoy A.C.J.O., Feldman and Huscroft JJ.A.

Between

Janet Louise Hilson Plaintiff (Respondent/Appellant by way of cross-appeal)

and

1336365 Alberta Ltd., 1336367 Alberta Ltd., 1336364 Alberta Ltd., 1320950 Alberta Ltd., 1336366 Alberta Ltd., Ross Charles Lightle and Barbara Lightle Defendants (Appellants/Respondents by way of cross-appeal)

Counsel

Jonathan Rosenstein, for the appellants/respondents by way of cross-appeal

Howard W. Reininger, for the respondents/appellants by way of cross-appeal

Heard

November 15, 2018

On Appeal From

The judgment of Justice Richard A. Lococo of the Superior Court of Justice, dated March 26, 2018, with reasons reported at 2018 ONSC 1836.

Reasons for Decision

[1] On May 27, 2019, the court released a judgment in this appeal in error. One of the members of the panel that heard the appeal, Justice Huscroft, was not provided with either the draft judgment for review or the final judgment for signature. The judgment was signed, in error, by another justice who was not a member of the panel that heard the appeal.

[2] As a result, the judgment released May 27, 2019 is not a judgment of the court. It is of no force or effect and has been withdrawn.

[3] The parties were informed that the panel that heard the appeal remained seized of the matter and were invited to make written submissions.

[4] Having considered those submissions, we have concluded that the appeal must be re-heard by a differently constituted panel of the court.

[5] As a result of the error, Justice Huscroft did not participate in the preparation of the panel's judgment. This cannot now be corrected, as the respondent submits. The panel of judges that rendered judgment was not the same panel that heard the appeal. The respondent's proposal that Justice Huscroft now review and either assent to or dissent from a judgment that he had no role in making must be rejected. The decision-making process has been compromised and this panel cannot render a judgment.

[6] Accordingly, the appeal shall be re-heard by a differently constituted panel on an expedited basis. The parties may contact the Court's Senior Legal Officer to discuss arrangements.

"Alexandra Hoy A.C.J.O."

"K. Feldman J.A."

"Grant Huscroft J.A."