COURT OF APPEAL FOR ONTARIO
RE:
TAMLANN INVESTMENTS LIMITED (Applicant (Respondent)) – and – 1038017 ONTARIO LIMITED, FRANK FIORE, LUCY FIORE, THE EFFORT TRUST COMPANY, TAYLOR LEIBOW INC. and CANADA REVENUE AGENCY (Respondents (Appellants))
BEFORE:
McMURTRY C.J.O., ARMSTRONG and LANG JJ.A.
COUNSEL:
J. Ivan Marini
for the appellants
Waldemar Zimmerman and Edgar-Andre Montigny
for the respondent
HEARD & RELEASED ORALLY:
March 10, 2005
On appeal from the order of Justice W. J. Festeryga of the Superior Court of Justice dated June 15, 2004.
E N D O R S E M E N T
1In our view, the offer presented to the court did not meet the requirements set out in the order of Whitten J. of May 27, 2004. It was not a binding offer without conditions which jeopardized the Tim Horton’s timeline. In addition, it was not an arms length offer in that the purchaser was one of the appellants.
2We therefore can find no palpable or over-riding error on the part of the motion judge. The appeal in respect of the merits is dismissed.
3In respect of the appeal from the order of costs, we are of the view that there is no basis to set aside the exercise of the motion judge’s discretion.
4Accordingly, leave to appeal costs is allowed but the appeal as to costs is dismissed.
5The respondents shall have their costs of this appeal fixed at $4,500 inclusive of Goods and Services Tax and disbursements.
“Roy McMurtry C.J.O.”
“Robert P. Armstrong J.A.”
“Susan E. Lang J.A.”