COURT OF APPEAL FOR ONTARIO
RE:
EUSTACE CLARKE (Appellant (Plaintiff)) – and – DAVID COSTA & ASSOCIATES and CHARLES O. SPETTIGUE (Respondents (Defendants))
BEFORE:
ROSENBERG, MOLDAVER and FELDMAN JJ.A.
COUNSEL:
Patrick Summers
for the appellant
Michael R. Kestenberg
for the respondent
HEARD & ENDORSED:
June 13, 2003
On appeal from the judgment of Justice Romain W.M. Pitt dated December 12, 2002.
A P P E A L B O O K E N D O R S E M E N T
1This appeal is dismissed. There is no genuine issue for trial on the issue of damages and therefore the action cannot succeed. We agree with the reasons of the motion judge with respect to the argument as it was put to him. Counsel for the appellant has attempted to reframe the argument before us; but even on this new theory, there is no evidence that the appellant suffered any damages because of the negligent advice from the solicitor. These new theories are based on speculation and are contradicted by the appellant’s own affidavit.
2The appeal is dismissed with costs, fixed at $5,000 inclusive of disbursements and GST.