DATE: 20010511

DOCKET: C35404

COURT OF APPEAL FOR ONTARIO

RE: RTO ASSET MANAGEMENT INC. (Plaintiff/Respondent) –and– BREWERS RETAIL INC. (Defendant/Appellant)

BEFORE: FINLAYSON, CARTHY and CHARRON JJ.A.

COUNSEL: Geoff R. Hall, for the appellant Robert B. Cohen, for the respondent

HEARD: May 8, 2001

RELEASED ORALLY: May 8, 2001

On appeal from the judgment of Justice John C. Wilkins dated November 16, 2000.

E N D O R S E M E N T

[1] While we do not necessarily embrace the analysis of the contract in dispute made by the trial judge, it is our opinion that he arrived at the correct conclusion. Option A was unenforceable. There is no mechanism to ensure that the parties would consummate the maintenance agreement contemplated by the option. Since the maintenance agreement is the reciprocal of the right to purchase the television sets for $1 apiece, the whole of Option A must fail and be severed from the contract as unenforceable.

[2] Accordingly, the appeal is dismissed. In view of the fact that the appellant, pursuant to a stay of this court, has retained the television sets in issue up to the present date, the appellant correctly concedes that the respondent is entitled to have the award below varied to provide for damages to represent a fair rental charge for the television sets from the date of judgment to the date of this hearing. The parties agree that, based on the contract, a figure of $4,696.50 per month would be an appropriate rental fee.

[3] The respondent is entitled to his costs of this appeal which are to include the costs of the motion for a stay brought by the appellant.

Signed: "G.D. Finlayson J.A." "J.J. Carthy J.A." "Louise Charron J.A."