Magine Construction Inc. v. The Moro Group Builders Inc.

Magine Construction Inc. v. The Moro Group Builders Inc.

The appeal is dismissed because the Court found no error in the motion judge's grant of summary judgment dismissing the appellant's claim; the new argument regarding unjust enrichment was not raised in the factum and was advanced without notice, so it was not considered, and the motion judge had jurisdiction to dismiss the entire claim.

Citation
2014 ONCA 663
Parties
Plaintiff (appellant): Magine Construction Inc.; Defendant (respondent): The Moro Group Builders Inc.; Defendant (respondent): John Gallucci; Defendant (respondent): Anthony Moro; Defendant (respondent): Marc Anthony Moro; Defendant (respondent): HP Bloor Street Ltd.; Defendant (respondent): The Address Inc.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
24 September 2014
Procedural Posture
Civil Appeal / Appeal From Summary Judgment
Outcome
Appeal dismissed.
Legal Topics
Summary Judgment, Unjust Enrichment, Jurisdiction to Dismiss, Appeal Procedure, Costs
Source Language
English
Civil Procedural Law Restitution Summary Judgment Unjust Enrichment Jurisdiction to Dismiss Appeal Procedure Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Magine Construction Inc.

Plaintiff (appellant)

The Moro Group Builders Inc.

Defendant (respondent)

John Gallucci

Defendant (respondent)

Anthony Moro

Defendant (respondent)

Marc Anthony Moro

Defendant (respondent)

HP Bloor Street Ltd.

Defendant (respondent)

The Address Inc.

Defendant (respondent)

Procedural Posture

Civil Appeal / Appeal From Summary Judgment

Legal Issues

  1. 1 Whether the motion judge erred in granting summary judgment dismissing the appellant's entire claim
  2. 2 Whether the appellant's alternative unjust enrichment claim was left undetermined and therefore not dismissed
  3. 3 Whether the Court of Appeal should consider a new argument raised for the first time on appeal without notice to respondents' counsel

Ratio Decidendi

The appeal is dismissed because the Court found no error in the motion judge's grant of summary judgment dismissing the appellant's claim; the new argument regarding unjust enrichment was not raised in the factum and was advanced without notice, so it was not considered, and the motion judge had jurisdiction to dismiss the entire claim.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed.
  • Costs to the respondent fixed at $6,000.00 all inclusive.