Court File No.

COURT OF APPEAL FOR ONTARIO BETWEEN: WILFRED ROBERT PEARSON Plaintiff (Appellant) - and INCO LIMITED, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO THE CORPORATION OF THE CITY OF PORT COLBORNE, THE REGIONAL MUNICIPALITY OF NIAGARA, THE DISTRICT SCHOOL BOARD OF NIAGARA and THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD Defendants (Respondents) Proceeding under the Class Proceedings Act, 1992

NOTICE OF APPEAL

THE PLAINTIFF appeals to the Court of Appeal for Ontario from the order of the Honourable Mr. Justice Ian V. B. Nordheimer, released July 16, 2002, made at Toronto, Ontario. THE APPELLANT asks that the order be set aside and that an order be granted as follows: (a) allowing the claims pleaded against the defendant Regional Municipality of Niagara to

proceed to discovery and trial;

(b)

allowing the claims pleaded against the defendant Corporation of the City of Port

Colborne to proceed to discovery and trial; (c) reinstating the claim for negligent prosecution pleaded against Her Majesty the Queen in

Right of Ontario and allowing said claim to proceed to discovery and trial; (d) (e) granting the plaintiff leave to amend the statement of claim, if necessary; if necessary, an order consolidating this appeal with the appeal with respect to

certification presently pending in the Divisional Court, pursuant to the provisions of ss. 6, 7 and 19 Courts of Justice Act; and (f) such further and other relief as to this Honourable Court may seem just.

THE GROUNDS OF APPEAL ARE AS FOLLOWS: (a) the motions judge erred in failing to apply the case management scheduled approved by

the court for this action; (b) the motions judge erred in finding that it was plain and obvious that the claims made

against the defendant Regional Municipality of Niagara could not succeed based on the motion judge's application of the principles stated in Cooper v. Hobart (2001), 206 D.L.R. (4th ) 193 (S.C.C.) and Edwards v. The Law Society of Upper Canada (2001), 206 D.L.R. (4th ) 211 (S.C.C.); (c) the motions judge erred in principle in finding that the claims against the defendant

Corporation of the City of Port Colborne could not succeed based on the motion judge's application of the principles stated in Cooper v. Hobart and Edwards v. Law Society of Upper Canada;

(d)

the motions judge erred in principle in finding that the claim against the defendant Her

Majesty the Queen in Right of Ontario for negligent prosecution could not possibly succeed based on the motion judge's application of the princ iples stated in Nelles v. Ontario, [1989] 2 S.C.R. 170; (e) the motions judge erred in failing to grant the plaintiff leave to amend the statement of

claim with respect to the three claims referred to above; and (f) such further and other grounds as counsel may advise. THE APPELLANT requests this appeal be heard at Toronto, Ontario.

Date: August 14, 2002

KOSKIE MINSKY Barristers and Solicitors 900 20 Queen Street West Toronto, Ontario M5H 3R3 Kirk M. Baert (#30942O) Tel: 416-595-2117 Fax: 416-204-2889 Counsel for the plaintiff MARKLE, MAY, PHIBBS 21st Flr. 438 University Avenue Toronto, Ontario M5G 2K8 Eric Gillespie Tel: 416-593-4385 Fax: 416-593-4478 Solicitors for the plaintiff DAOUST VUKOVICH BAKERSIGAL BANKA LLP Barristers and Solicitors 20 Queen Street West, Suite 610 Toronto, Ontario M5H 3R3

Joanna Board LSUC# 43973J Tel #: (416) 597-6888 Fax #: (416)597-8897 Solicitors for the plaintiff

TO:

OSLER HOSKIN & HARCOURT P.O. Box 50 1 First Canadian Place Toronto, Ontario M5X 1B8 Larry P. Lo wenstein Joseph Starkman Tel: 416-862-6454 Fax: 416-863-6666 Solicitors for the defendant, Inco Limited

AND TO:

LENCZNER SLAGHT ROYCE SMITH & GRIFFIN 2600 130 Adelaide Street West Toronto, Ontario M5H 3P5 Alan Lenczner Ellen Sealey Tel: 416-865-9500 Fax: 416-865-9010 Solicitors for the defendant, Inco Limited

AND TO:

THE MINISTRY OF THE ATTORNEY GENERAL Crown Law Office Civil 8th Floor 720 Bay Street Toronto, Ontario M5G 2K1 Jack Coop Dennis Brown Tel: 416-326-4098 Fax: 416-326-4181 Solicitors for the defendant, Her Majesty the Queen in Right of Ontario

AND TO:

SISKIND CROMARTY IVEY & DOWLER 680 Waterloo Street P.O. Box 2520 London, Ontario N6A 3V8

Michael Peerless Tel: 519-672-2121 Fax: 519-672-6065 Solicitors for the defendants, the District School Board of Niagara, The Niagara Catholic District School Board AND TO: CASSELS BROCK & BLACKWELL Scotia Plaza 2100 40 King Street West Toronto, Ontario M5H 3C2 B. Robin Moodie Tel: 416-869-5734 Fax: 416-360-8877 Solicitors for the defendant, Regional Municipality of Niagara AND TO: STIEBER BERLACH GIBBS 900 130 Adelaide Street West Toronto, Ontario M5H 3P5 Steven Stieber Michelle Brodey Tel: 416-366-1400 Fax: 416-366-1466 Solicitors for the defendant, The Corporation of the City of Port Colborne

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