Case Name:

McDougall v. Andre Lanoue Pontiac Buick Inc.

Between

Gerald McDougall, (plaintiff/appellant), and

Andre Lanoue Pontiac Buick Inc. Craig Lanoue,

(defendants/respondents)

[2006] O.J. No. 1515

Docket: C42947

 Ontario Court of Appeal

 Toronto, Ontario

J.I. Laskin, J.L. MacFarland and H.S. LaForme JJ.A.

Heard: April 13, 2006.

 Judgment: April 13, 2006.

 Released: April 19, 2006.

(4 paras.)

Civil procedure -- Appeals -- Appeal by McDougall from a decision denying a motion to amend his statement of claim dismissed -- The motion judge looked at the motion as a motion to add a new cause of action and had found non-compensable prejudice -- There was an evidentiary basis for that finding and it was not unreasonable.

Appeal From:

On appeal from the order of Justice Richard C. Gates of the Superior Court of Justice, dated December 22, 2004 made at Windsor, Ontario.

Counsel:

Raymond Colautti for the appellant

Samuel A. Mossman for the respondent

APPEAL BOOK ENDORSEMENT

The following judgment was delivered by

1     THE COURT (endorsement):-- If this were simply a motion to particularize allegations already in the statement of claim, then the motion was unnecessary. Particulars of the December 14 incident were given on discovery.

2     The motion judge, however, fairly looked at the motion as a motion to add a new cause of action. He found non-compensable prejudice and therefore denied the motion to amend.

3     In our view, there was an evidentiary basis for this finding. Although we might have come to a different conclusion, we cannot say that the motion judge's decision was unreasonable.

4     The appeal is therefore dismissed without costs.

cp/e/qw/qlbxm/qlmrz