DATE: 20021004
DOCKET: C38051

COURT OF APPEAL FOR ONTARIO

RE: FUTURE IMAGE HOLDING CORPORATION and DASA HOLDINGS INC. (Plaintiffs (Respondents)) - and - LASON INC., BANK ONE, MICHIGAN and LASON CANADA COMPANY (Respondents (Appellants))

BEFORE: ABELLA, MOLDAVER and FELDMAN JJ.A.

COUNSEL: Howard Borlack and Lisa La Horey For the appellants David Kirwin For the respondents

HEARD: SEPTEMBER 30, 2002

RELEASED ORALLY: SEPTEMBER 30, 2002

On appeal from the judgment of Justice John Jennings of the Superior Court of Ontario dated March 12, 2002.

E N D O R S E M E N T

[1] With respect to the motion judge, we think there was a triable issue as to whether Mr. Todd, in his capacity as president of Lason Canada, had a duty to disclose and if so, did disclose the off-balance sheet payments made to various key employees of Lason, the effect of which was to substantially inflate the EBITDA calculation for the relevant time frame. We also think there was a triable issue as to whether Mr. Todd was aware of and participated in the inclusion of tailwind revenues for the stub period at the end of October 1998, the effect of which was also to inflate the EBITDA calculation.

[2] Accordingly the appeal is allowed, the order of Jennings J. is set aside and the motion for summary judgment is dismissed.

[3] The costs of the motion before Jennings J. shall be borne by the parties. With respect to the appeal, costs to the appellant in the total amount of $10,000.

[4] With the concurrence of counsel, paragraphs 2 and 3 of Cronk J.A.'s order of May 30, 2002 shall be extended until October 15, 2002.

Signed: “R. S. Abella J.A.” “M. J. Moldaver J.A.” “K. Feldman J.A.”