Trihar Holdings Ltd. v. Lambton (County)

The motion judge correctly applied Rule 21.01(1)(b) and law: the inspector's report, pleaded in the statement of claim, disclosed the presence of asbestos making the defect patent; that finding of law disposed of the claim and justified summary dismissal on the Rule 21 motion.

Citation: 2008 ONCA 360
Parties: Plaintiff/appellant: Trihar Holdings Ltd. in trust; Defendant/respondent: The Corporation of the County of Lambton
Court: Court of Appeal for Ontario
Jurisdiction: Canada
Judgment Date: 8 May 2008
Procedural Posture: Civil / Appeal From Rule 21 Motion (court of Appeal)
Outcome: Appeal dismissed
Legal Topics: Rule 21 Summary Judgment, Latent Defect Vs Patent Defect, Use of Documents Referenced in Pleadings, Judicial Discretion on Timing of Motions, Costs
Source Language: English

Civil Litigation Property Law Torts Procedural Law Rule 21 Summary Judgment Latent Defect Vs Patent Defect Use of Documents Referenced in Pleadings Judicial Discretion on Timing of Motions +1 more

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Parties

Trihar Holdings Ltd. in trust

Plaintiff/appellant

The Corporation of the County of Lambton

Defendant/respondent

Procedural Posture

Civil / Appeal From Rule 21 Motion (court of Appeal)

Legal Issues

1 Whether the presence of asbestos constituted a latent defect or a patent defect
2 Whether the motion judge erred in applying Rule 21.01(1)(b) to dispose of the claim
3 Whether the motion judge properly considered documents referred to in the statement of claim

Ratio Decidendi

Court Disposition

Appeal dismissed

Orders

Appeal dismissed
Costs of the appeal to the respondent fixed at $5,000 inclusive of disbursements and G.S.T.