COURT OF APPEAL FOR ONTARIO

DATE: 20040722

DOCKET: C40671

RE: MARTIN KATZMAN (Appellant/Plaintiff) – and – BARRY HOWARD KORZEN and ENDODONTIC CONSULTING SERVICES INC. (Respondents/Defendants)

BEFORE: CATZMAN, GILLESE and LANG JJ.A.

COUNSEL:

Simon J. Adler for the appellant

Tracy L. Wynne for the respondent

HEARD AND ENDORSED: July 20, 2004

On appeal from the order of Justice Andromache Karakatsanis dated August 26, 2003.

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

[1] Except for the plea of fraudulent misrepresentation, which Mr. Adler acknowledges to be untenable, there are sufficient facts pleaded that are capable, if proven, of establishing an absence of good faith. In particular, we have regard to the phrase “knowledge that such omission would mislead” in para. 17 coupled with the factual allegations in paras. 8 and 9 of the statement of claim.

[2] We do not agree with the motions judge that the appellant has no cause of action in the circumstances pleaded. At its highest, the cause of action in negligence is novel, but it is not plain and obvious to us that it cannot succeed and must be permitted to proceed.

[3] The appeal is allowed, the order of the motions judge is set aside and the motion that was before her is dismissed. The appellant is entitled to his costs of the motion, which we fix in the sum of $10,000, and the costs of the appeal, which we fix in the sum of $8,500. Both figures are inclusive of disbursements and G.S.T.