DATE: 20061002

DOCKET: C45414

COURT OF APPEAL FOR ONTARIO

RE: LAWRENCE A. ROTENBERG (Plaintiff/Respondent in Appeal) – and – PANKAJ MODI (Defendant/Appellant in Appeal)

BEFORE: LABROSSE, ROSENBERG AND MACPHERSON JJ.A.

COUNSEL: Chris Argiropoulos for the appellant Michael Bordin for the respondent

HEARD & ENDORSED: September 29, 2006

On appeal from the order of Justice Alan C.R. Whitten of the Superior Court of Justice, dated April 27, 2006.

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

[1] We agree that Rule 26.01 of the Rules of Civil Procedure is mandatory unless the prejudice cannot be compensated in costs. However, it is only common sense, that given the passage of time and the concurrent opportunity to raise a counterclaim, a natural degree of scepticism arises.

[2] On the facts of this case, we agree with the motion judge that the amendments are essentially hallow verbiage tendered at the 11th hour by a party who has been forced to trial. The claim is not tenable.

[3] The appeal is dismissed with costs fixed at $4,661.51, all inclusive.