COURT OF APPEAL FOR ONTARIO
RE: MACK CANADA INC. (Applicant (Respondent in appeal)) – and – ESSENTIAL CONCRETE LTD. and VESDAR CAPITAL CORPORATION (Respondents (Appellant in appeal)
BEFORE: McMURTRY C.J.O., GOUDGE AND MacPHERSON JJ.A.
COUNSEL: Victor Peters, for the appellant
David E. Fine, for the respondent Mack Canada
HEARD: September 6, 2002
On appeal from the judgment of Justice Sandra Chapnik dated January 11, 2002.
E N D O R S E M E N T
Released Orally: September 6, 2002
1The application judge found that no unconditional contract between Mack and Essential arose in June 2001 such as would create a security interest requiring registration when Essential came into possession of the two trucks.
2Without commenting on the remainder of her reasons for reaching this conclusion, we are of the opinion that her finding that any agreement made at that time between Mack and Essential was truly conditional on the obtaining of financing was one sufficient to sustain her conclusion. In our view, this finding depending as it does on the intention of the parties is one of fact and was open to her on this record. To overturn this finding on appeal we would have to find that she made a palpable and overriding error in reaching this conclusion. This we cannot do.
3Despite Mr. Peters’ able argument, the appeal must be dismissed. Costs are fixed in the amount of $2,500.
“R.R. McMurtry C.J.O.”
“S.T. Goudge J.A.”
“J.C. MacPherson J.A.”