T.W. Johnstone Company Ltd. v. Leader Capital Corp., 2011 ONCA 202

CITATION: T.W. Johnstone Company Ltd. v. Leader Capital Corp., 2011 ONCA 202

DATE: 20110314

DOCKET: C52509

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Epstein JJ.A.

BETWEEN

T.W. Johnstone Company Ltd.

Respondent (Plaintiff)

and

Leader Capital Corp. and Leader Energy Corp.

Appellants (Defendants)

Counsel:

Barry Appleton and Kyle Dickson-Smith, for appellants

S. Michael Robertson, for the respondent

Heard: March 11, 2011

On appeal from the judgment of Justice Rady of the Superior Court of Justice dated July 22, 2010.

APPEAL BOOK ENDORSEMENT

[1] The motion judge had the power to vary the consent stay order in light of the changed circumstances: see Rule 59.06.

[2] The motion judge found that the appellants acted in bad faith in the conduct of the arbitration/mediation process. That finding is fully justified. It does not lie in the mouth of the appellants to seek the protection of the procedural provisions of the mediation/arbitration provisions. In any event, as the motion judge held there was functional compliance with the notice requirement in para. 8 of the contract.

[3] As we would not interfere with the motion judge’s findings of bad faith, there are no grounds upon which to interfere with her costs disposition.

[4] Costs to the respondent in the amount of $10,000, inclusive of disbursements and HST.