DATE: 20030617

DOCKET: C39357

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

[1] This 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.

[2] The appeal is dismissed with costs, fixed at $5,000 inclusive of disbursements and GST.