Court of Appeal for Ontario

DATE: 20011026 DOCKET: C36403

RE: JAMES EMERSON COVERDALE, DOREEN ANNE COVERDALE AND JAMES SHARPLES AS TRUSTEES OF THE COVERDALE FAMILY TRUST (Plaintiffs (Respondents)) – and – LASON CANADA COMPANY, LASON, INC. and BANK ONE, MICHIGAN (Defendants (Appellants))

BEFORE: ABELLA, GOUDGE AND SIMMONS JJ.A.

COUNSEL: Howard B. Borlack and Lisa La Horey For the appellant

Kevin McElcheran and Ruth Promislow For the respondent

HEARD: October 22, 2001

On appeal from the judgment of Justice Peter C. Jarvis dated May 2, 2001.

E N D O R S E M E N T

Released Orally October 22, 2001

[1] The central issue on this appeal is whether Mr. Justice Jarvis erred in finding no evidence of a misrepresentation disentitling the respondent from relying on the December 17, 1999 agreement.

[2] In our view, he did not err.

[3] While there may be differing views on the accounting approach appropriate to making the pay-out calculation, it cannot be said that because Michael Coverdale, the Chief Financial Officer of the appellant held one view, the agreement based on his advice is therefore based on a misrepresentation undoing its legal effect. His view was not a secret from the appellant.

[4] Mr. Justice Jarvis properly concluded that the appellant was bound by the December 17, 1999 agreement and there was no genuine issue for trial about its legal effect.

[5] Therefore, despite Mr. Borlack’s able argument, the appeal is dismissed with costs.

"R. S. Abella J.A."

"S. T. Goudge J.A."

"Simmons J.A."