DATE: 20060117

DOCKET: C41859

COURT OF APPEAL FOR ONTARIO

RE:

CLASSIQUE IMAGES INTERNATIONAL INC. o/a DESIGN HOME ASSOCIATES (Plaintiff/Appellant) – and – ALEXANDER RAVIV, MITCHELL GOLDFARB and POLINEER PLASTICS LTD. (Defendants/Respondents)

BEFORE:

WEILER, LASKIN and ROSENBERG JJ.A.

COUNSEL:

Kevin D. Sherkin

for the appellant

Shelley B. Brown

for the respondent

HEARD & ENDORSED:

January 13, 2006

On appeal from the judgment of Justice Andromache Karakatsanis of the Superior Court of Justice dated April 22, 2004.

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

[1] The issue is whether the trial judge erred in holding that a denial in the statement of defence was not an admission when read with a letter from the respondent’s counsel. In our opinion it was open to the trial judge to come to the conclusion that there was no unambiguous concession. Having regard to the way the case was pleaded in the amended statement of claim, the effect of the denial was to put the plaintiff to the proof of its allegations. Accordingly, the appeal is dismissed with costs to the respondent filed in the amount of $1500.00.