DATE: 20051117

DOCKET: C43372

COURT OF APPEAL FOR ONTARIO

RE:

JOHN GOMES AND SCOTT KELLY (Plaintiffs/Respondents in Appeal) v. 626381 ONTARIO LIMITED AND NADIRE ATAS (Defendants/Appellants in Appeal) - AND - 626381 ONTARIO LIMITED AND NADIRE ATAS (Plaintiffs by Counterclaim/Appellants in Appeal) v. JOHN GOMES AND SCOTT KELLY, THE CANADA TRUST COMPANY TRUSTEE FOR SDRSP#524068S, TOM PIRES AND MEGA CORP. (Defendants by Counterclaim/Respondents in Appeal)

BEFORE:

DOHERTY, CRONK and MACFARLAND JJ.A.

COUNSEL:

Patrice A.J. Côté

for 626381 Ontario Limited and Atas

Raymond Stancer

for Gomes et al.

HEARD & ENDORSED:

November 17, 2005

On appeal from the judgment of Justice Romain W.M. Pitt of the Superior Court of Justice dated March 8, 2005.

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

[1] We see no merit in the appeal. The motion judge properly held that the alleged violation of s. 4 of the Mortgages Act offered no defence to the claim for possession of the property and the amount owing on the mortgage. The motion judge was entitled to look to the documents specifically identified in the pleadings in considering the Rule 21.01(b) motion. The mortgage commitment provided the accounting which the appellant had pleaded had not been given. The appellant does not argue that the motion judge erred in holding that there was no legal merit to the claim based on s. 42 of the Mortgages Act.

[2] The pleading as framed was, therefore, properly struck. The appellant did not ask the motion judge for leave to amend the pleading. We see no basis upon which to grant leave to amend so that the appellant can advance entirely new causes of action. The appeal is dismissed.

[3] Costs to the respondent in the amount of $4,000 “all in”.