COURT OF APPEAL FOR ONTARIO

DATE: 20000117

DOCKET: C31803

RE: CONFEDERATION LIFE INSURANCE COMPANY (Respondent)

–and– KATHERINE HILL SHOP LIMITED (Appellant)

BEFORE: CATZMAN, LASKIN and ROSENBERG JJ.A.

COUNSEL: Alan J. Lenczner, Q.C., for the appellant

Kenneth W. Crofoot, for the respondent

HEARD: January 13, 2000

On appeal from the judgment of Sachs J., dated February 24, 1999.

E N D O R S E M E N T

[1] There is a dispute between the parties whether an oral

agreement was or was not made between them in the spring of 1997

and whether, assuming that there was such an agreement, the

respondent can be found to be in breach of its terms.

[2] It is the view of Catzman and Laskin JJ.A. that that

dispute constitutes a genuine issue that must be addressed at a

trial and that, only after it is decided that there was such an

agreement and what the terms of that agreement were, can the

legal question be addressed whether the agreement is enforceable

as a matter of law. It is the dissenting view of Rosenberg J.A.

that the oral agreement alleged by the appellant is, at its

highest, an agreement to agree which is, in law, unenforceable.

[3] The appeal is allowed, the partial summary judgment is set

aside and, in its place, an order will go dismissing the

respondent’s motion for summary judgment. The appellant is

entitled to its costs of the motion and of the appeal.

Signed: “M.A. Catzman J.A.”

“John Laskin J.A.”

“M. Rosenberg J.A.”