Court of Appeal for Ontario

Magnish v. Steeves

Date: 2002-09-06

File: C37414

Counsel:
Robert Bonadeo, for the appellants;
Howard Mammon, for the respondent.

Endorsement

[1] By the Court: The motions judge was required to hear the motion to amend the statement of defence first. There was no basis upon which the motions judge could refuse leave to amend under rule 26.01. The motions judge should have granted the leave to amend and then addressed the motion for summary judgment. We have taken this approach. Before us the appellant has narrowed his proposed amendments to the statement of defence substantially. He has agreed to delete paragraphs 11 and 12 and seeks to add paragraphs 13A to 13E (in the form attached to this endorsement) to the statement of defence. [Attachment not received.] We grant leave to amend the statement of defence in this manner.

[2] We are satisfied that the paragraphs to be added raise genuine issues for trial and that the respondent's motion for summary judgment should have been dismissed. The appeal is therefore allowed and the judgment of Pitt, J., is set aside.

[3] There will be no costs of the appeal. The appellant shall pay to the respondent the costs of the proceeding below fixed in the amount of $4,000.00.

Appeal allowed.