T.W. Johnstone Company Ltd. v. Leader Capital Corp., 2011 ONCA 202
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
1The motion judge had the power to vary the consent stay order in light of the changed circumstances: see Rule 59.06.
2The 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.
3As 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.
4Costs to the respondent in the amount of $10,000, inclusive of disbursements and HST.