DATE: 20040511

DOCKET: C41002

COURT OF APPEAL FOR ONTARIO

RE:

PAUL GEARING, GEARING FARMS LTD., P.K. DEVELOPMENTS INC. (Plaintiffs/Appellants) – and – THOMAS DUNNE and ARMSTRONG, SCHIRALLI, DUNNE AND SINGER (Defendants/Respondents)

BEFORE:

ABELLA, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Joy Casey

for the appellant

Philip Epstein and Ilana Zylberman

for the respondent

HEARD AND ENDORSED:

May 7, 2004

On appeal from the order of Justice M. A. Scott dated October 22, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] While we have serious reservations that this conduct constitutes a breach of fiduciary duty, we are, in any event, satisfied that the motions judge was correct in refusing to allow the pleadings to be amended based on his alternative finding of laches.

[2] Accordingly, the appeal is dismissed with costs fixed in the total amount of $5,000.