DATE: 20060501

DOCKET: C44119

COURT OF APPEAL FOR ONTARIO

RE:

DEWSHAF INVESTMENTS INC. (Plaintiff (Respondent)) – and – SILJUB HOSPITALITY INC. (Defendant (Appellant))

BEFORE:

MOLDAVER, GOUDGE and LANG JJ.A.

COUNSEL:

Alnaz I. Jiwa

for the appellant

Simon Schneiderman

for the respondent

HEARD:

April 27, 2006

On appeal from the judgment of Justice Eva Frank of the Superior Court of Justice dated August 11, 2005.

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

[1] We see no error in the motion judge’s conclusion that judgment should issue on the promissory note. This and her refusal to grant a stay of that judgment were supported by the record before her.

[2] The appellant however has tendered fresh evidence on the appeal. Based on that evidence, while we are satisfied that the summary judgment should not be disturbed, we have been persuaded that the judgment should be stayed subject to production of proof by the respondent, on motion by it in this action to a judge of the Superior Court of Justice, in form and terms satisfactory to that judge, that it has complied with its obligations under para. 10 of the Shareholder’s Agreement (dated October 10, 2001) and para. 1 of the Undertaking and Indemnification Agreement between the parties (dated November 2, 2001) to obtain the releases of guarantees referred to in those paragraphs in favour of the appellant.

[3] Success is divided. The parties shall bear their own costs of the appeal.