DIVISIONAL COURT FILE NO.: 113/05

DATE: 20070606

ONTARIO

SUPERIOR COURT OF JUSTICE

(Divisional Court)

B E T W E E N:

GMAC LEASECO LIMITED

Plaintiff

(Respondent in Appeal)

• and -

1348259 ONTARIO INC. carrying on business as SEBKAR MOTORS, BERARDO VALENTINI, UNITED AUCTION LTD., 1060038 ONTARIO LTD. carrying on business as MIDTOWN MOTORS LTD. and VASILIOS HONDOZOGLOU

Defendants

(1060038 Ontario Ltd. c/o/b as Midtown Motors Ltd, the Appellant in Appeal)

Mr. D.G. Christie

for the Plaintiff

(Respondent in Appeal)

Mr. D.G. Christie

for the Defendant

(Appellant in Appeal)

-and – )

VISION CHEVROLET GEO OLDSMOBILE )

LTEE, CENTRAL PONTIAC BUICK LTEE )

and DECAIRE CHEVROLET OLDSMOBILE )

LTEE )

Third Parties )

JENNINGS , FERRIER, PERKINS J.J.

ENDORSEMENT AS TO COSTS

[1] By Endorsement of February 15, 2007, we dismissed Midtown’s appeal from the dismissal of its motion for summary judgment. We invited counsel to make written submissions as to costs and we have now had the advantage of those submissions.

[2] In view of the circumstances giving rise to this appeal, counsel have helpfully and fairly agreed that there should be no costs awarded of the motion for leave to appeal and of the appeal itself. On that basis we make no order as to costs of either motion.

[3] There remains to be determined the issue of costs of the motion for summary judgment. Although the motion’s judge invited written submissions with respect to the costs of the appearance before him, we are advised that no such submissions were made and that with the approval of the motion judge, counsel agreed not to address the question of costs until the completion of the appeal to this Court.

[4] Costs of the motion for summary judgment were not requested in the notice of appeal. We would have thought that if counsel wished to pursue costs of that motion, they should return to the motions judge. However, both counsel request that we deal with that issue and on that basis, as a matter of both expediency and economy, we will do so.

[5] In paragraph [46] of his Endorsement, the motions judge made critical comment of the failure of the Respondent, GMAC to file an affidavit of a person whose evidence the motions judge believed would have had a significant bearing on the outcome of the motion for summary judgment. The motions judge implied that the affidavit was not filed for tactical reasons.

[6] Because of that, we accept the submissions of counsel for Midtown that an award of costs to GMAC would be inappropriate. In our opinion, there should be no order for costs of the appearance before the motions judge.

Dated this 6th day of June, 2007

Jennings J.

Ferrier J.

C. Perkins J.