Board of Education of Victoria County v. Bradstock, Reicher & Partners Ltd. et al., (1984) 4 O.A.C. 72 (DC)

Judge:Southey, Krever and Craig, JJ.
Court:Superior Court of Justice of Ontario
Case Date:July 11, 1984
Jurisdiction:Ontario
Citations:(1984), 4 O.A.C. 72 (DC)
 
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Victoria School Bd. v. Bradstock, Reicher (1984), 4 O.A.C. 72 (DC)

MLB headnote and full text

Victoria County Board of Education v. Bradstock, Reicher & Partners Limited (defendant) and Allen, Brown, Sherriff, Zorge Construction Company Limited, Dominion Masonry & Stone Contractors Limited and Boulding Associates Limited (third parties)

Indexed As: Board of Education of Victoria County v. Bradstock, Reicher & Partners Ltd. et al.

Ontario Divisional Court

Southey, Krever and Craig, JJ.

July 17, 1984.

Summary:

A defendant applied for leave under the Ontario Rules of Practice, Rule 124, to have determined before trial whether an action was statute barred by s. 28 of the Professional Engineers Act. The defendant's request for leave was refused. The defendant appealed.

The Ontario Divisional Court dismissed the defendant's appeal.

Practice - Topic 5261

Trials - Trials of preliminary issues - Issues of law - When available - A defendant applied for leave under the Ontario Rules of Practice, Rule 124, to have determined before trial whether an action was statute barred by s. 28 of the Professional Engineers Act - The Ontario Divisional Court affirmed the dismissal of the application for leave, where the hearing of the point of law in question would not have disposed of all or a substantial part of the action and where the trial judge would be in a better position than the motions judge to make the determination - See paragraphs 1 to 19.

Cases Noticed:

Attorney General of Canada v. Libling et al. (1980), 29 O.R.(2d) 44, dist. [paras. 7, 10, 15 to 17].

Robert Simpson Co. Ltd. v. Foundation Co. of Canada Ltd. et al. (1982), 36 O.R.(2d) 97, not folld. [paras. 9, 10, 18].

Schwebel v. Telekes, [1967] 1 O.R. 541, consd. [paras. 10, 11].

Statutes Noticed:

Ontario Rules of Practice, rule 124 [para. 1].

Professional Engineers Act, R.S.O. 1980, c. 394, sect. 28(1), sect. 28(2) [para. 1].

Counsel:

E.R. Murray, Q.C., and R.A. Row, for the defendant (appellant);

L.T. Forbes, Q.C., and M. Wine, for the plaintiff (respondent.

This appeal was heard before Southey, Krever and Craig, JJ., of the Ontario Divisional Court, on July 11, 1984. The decision of the Divisional Court was delivered by Southey, J., and released on July 17, 1984:

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