DATE: 20030903
DOCKET: C39788

COURT OF APPEAL FOR ONTARIO

RE:

ROYAL BANK OF CANADA (Plaintiff/Respondent) -and- 131864 ONTARIO LTD., W. GARTH FAIR HOLDINGS LTD., 1153579 ONTARIO INC., W. GARTH FAIR and MICHAEL KELLY (Defendants/Appellants)

AND RE:

W. GARTH FAIR HOLDINGS LTD. and W. GARTH FAIR (Plaintiffs by counterclaim/Appellants) -and- ROYAL BANK OF CANADA, DWIGHT HOIT and DAVE CROSS (Defendants to the counterclaim/Respondents)

BEFORE:

LABROSSE, ABELLA and CRONK JJ.A.

COUNSEL:

Derek A.J. D'Oliveira for the defendants/appellants

B. Dawe for the plaintiff (respondent)

HEARD & ENDORSED:

September 3, 2003

On appeal from the judgment of Justice Katherine E. Swinton of the Superior Court of Justice dated February 21, 2003.

APPEAL BOOK ENDORSEMENT

[1] At the opening of the hearing of this appeal, we denied a motion by the appellant to amend his factum by pleading a ground of appeal that would have changed the fundamental nature of the case.

[2] The ground of appeal sought to be added by the appellant was neither pleaded nor raised before the motion judge.

[3] The detailed reasons of the motion judge reveal no error.

[4] The appeal is dismissed with costs fixed at $7,000.00.