COURT OF APPEAL FOR ONTARIO

DATE: 20050624

DOCKET: C42867

RE: BUSINESS DEVELOPMENT BANK OF CANADA (Plaintiff/Respondent) – and – MICHEL ASSOULINE and EMMANUEL MONGE (Defendants/Appellant)

BEFORE: BORINS, FELDMAN and GILLESE JJ.A.

COUNSEL: Patricia J. Forte for the appellant

J. Paul Bannon for the respondent

HEARD & ENDORSED: June 23, 2005

On appeal from the judgment of Justice A. Donald K. MacKenzie of the Superior Court of Justice dated October 18, 2004.

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

[1] In our opinion, the motion judge reached the correct result. The appellant had an obligation to disclose a defence on the merits. Like the motion judge we find that he failed to do so. The appeal is dismissed with costs on a partial indemnity basis fixed at $3,000 inclusive of disbursements and GST.