DATE: 20010611 DOCKET: C35421

COURT OF APPEAL FOR ONTARIO

RE:

WORKING VENTURES CANADIAN FUND INC. (Applicant (Respondent in Appeal)) - and - ANGOSS SOFTWARE CORPORATION (Respondent (Appellant))

BEFORE:

MORDEN, ABELLA and MOLDAVER JJ.A.

COUNSEL:

Andrew M. Robinson

For the appellant

Douglas F. Harrison and Adrian C. Lang

For the respondent

HEARD:

May 30, 2001

On appeal from the judgment of Justice Donald R. Cameron dated November 27, 2000.

E N D O R S E M E N T Released Orally May 30, 2001

[1] Assuming that Cameron J. erred in failing to apply an objective test in his assessment of the due diligence issue, we are satisfied that, had he applied an objective test, he would have come to the same conclusion, namely, that the steps taken by Working Ventures were sufficient to enable it to exercise its discretion reasonably.

[2] Having regard to the nature of the transaction and the steps taken by Working Ventures to comply with its due diligence undertaking, we are satisfied that, applying an objective standard, the proper conclusion is that Working Ventures had complied with its contractual obligation. Indeed, it is apparent from Cameron J.'s reasons that he took objective factors into account in upholding the reasonableness of the discretion exercised by Working Ventures. Accordingly, the appeal is dismissed, with costs.