DATE: 20041102

DOCKET: C40150

COURT OF APPEAL FOR ONTARIO

RE: 563689 ONTARIO LIMITED, T/A CHIC PARIS (Plaintiff (Appellant)) – and – TWO SAINT CLAIR HOLDINGS LIMITED and DUNDEE REALTY MANAGEMENT CORPORATION (Defendants (Respondents))

BEFORE: MOLDAVER, SHARPE JJ.A. and KILLEEN J. (ad hoc)

COUNSEL: Avril Hasselfield and Enio Zeppieri For the appellant

Sharon Addison For the respondent

HEARD: October 21, 2004

On appeal from the judgment of Justice James M. Spence of the Superior Court of Justice dated May 8, 2003.

E N D O R S E M E N T

[1] Having reviewed the trial transcript and the relevant exhibits, we are satisfied that it was open to the trial judge to find, as he did, that the tenant’s identity was material and that the parties did not reach a consensus ad idem on that essential issue. The correspondence between the parties in September 2000 is unrelated to that issue. It therefore has no bearing on the issue of identity and the trial judge’s finding in relation to it.

[2] In view of the trial judge’s finding on identity, there is no basis for interfering with his conclusion that the parties did not enter into a binding agreement.

[3] Accordingly, we would dismiss the appeal with costs to the respondent fixed on a partial indemnity basis at $5,000 inclusive of G.S.T. and disbursements.

Signed:_____ “M. J. Moldaver J.A.”

_____ “Robert J. Sharpe J.A.”

_____ “Gordon Killeen J. (ad hoc)