COURT OF APPEAL FOR ONTARIO

DATE: 20000825

DOCKET: C32932

RE: PAUL JAMES McCANN (Plaintiff/Appellant) v. J.J. BARNICKE LIMITED, TOM McCARTHY, DOUG JOHNSON and PAUL COOK (Defendants/Respondents)

BEFORE: OSBORNE A.C.J.O., LASKIN and GOUDGE JJ.A.

COUNSEL: William V. Reid

for the appellant

Adrian Miedema

for the respondents

HEARD: August 23, 2000

On appeal from the order of Madam Justice Low dated September 1, 1999.

E N D O R S E M E N T

[1] We agree with the motions judge that the claim in fraud cannot stand. However, we are of the view that apart from the separate tort of fraud, the claim made by the appellant against the individual defendants discloses a cause of action based on unjust enrichment. Thus, the statement of claim, as it relates to those defendants, should not have been struck out.

[2] The plaintiff should be granted leave to amend his statement of claim within 30 days to remove references to fraudulent conduct consistent with the motions judge’s order and to properly plead his claim for unjust enrichment. Since success is divided, there should be no costs here or below.

“C.A. Osborne A.C.JO.” “John Laskin J.A.” “S.T. Goudge J.A.”