CITATION: OGT Holdings Ltd. v. Startek Canada Services Ltd., 2010 ONCA 438

DATE: 20100611

DOCKET: C51519

COURT OF APPEAL FOR ONTARIO

Simmons, Epstein and Blair JJ.A.

BETWEEN

OGT Holdings Ltd.

Applicant (Appelalnt)

and

Startek Canada Services Ltd. and Startek USA, Inc.

Respondents (Respondents)

Fred. S. Seller, for the appellant

Wolfgang Kaufmann, for the respondents

Heard: June 11, 2010

On appeal from the judgment of Justice Denis A. Power of the Superior Court of Justice dated December 9, 2009.

APPEAL BOOK ENDORSEMENT

[1] On the record before him, and on the non-contested factual basis on which he was asked to deal with it, it was open to the application judge to conclude that there was a separate “apportionment” as contemplated by s. 4.02 of the lease. It was also open to him to conclude that the appellant had elected to recoup taxes from the respondent on that basis and could not subsequently resile from that election. Accordingly, in the particular circumstances of this case and on the particular provisions of this lease, we see no basis for interfering with the application judge’s decision. The appeal is therefore dismissed.

[2] Costs to the respondent fixed at $7,500 all inclusive as agreed.