DATE: 20061208

DOCKET: C45338

COURT OF APPEAL FOR ONTARIO

RE:

JACQUES PITRE and JEANNETTE PITRE (Plaintiffs (Appellants)) – and – ATLAS COLD STORAGE CANADA LIMITED (Defendant (Respondent))

BEFORE:

WEILER, GOUDGE AND SIMMONS JJ.A.

COUNSEL:

Derek Fazakas

for the appellant

Allyson M. Fischer

for the respondent

HEARD & ENDORSED:

December 8, 2006

On appeal from order of Justice Alan C. R. Whitten of the Superior Court of Justice dated March 30, 2006.

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

[1] While we agree that the appellants failed to plead sufficient facts to support claims for intentional infliction of mental suffering and negligence, in our view, it is not plain and obvious at this stage that the pleadings could not be amended so as to allow these claims to proceed. The motion judge did not address the issue of whether leave to amend should be granted. Although we agree that the foregoing claims were properly struck (along with the derivative claim under the Family Law Act and the dependent claim for punitive damages), in our view, leave to amend should be granted.

[2] Accordingly, we would allow the appeal in part by adding a provision to the motion judge's order allowing the appellants to deliver a fresh statement of claim within 30 days from the date of this order.

[3] On the issue of costs, the respondent offered a right to amend and this appeal was therefore unnecessary. However, the issues presented are simple. Accordingly costs of the appeal are to the respondent fixed at $1000 inclusive of G.S.T. and disbursements.