Court of Appeal for Ontario

128673 Ontario Ltd. v. DeCicco

Date: 2002-01-31

Counsel: James M. Wortzman and Jonathan Kulathungam, for the appellant.

(C36160)

[1] By the Court: The appellant took the position on closing that it was entitled to specific performance with an abatement equivalent to the damages caused by the alleged breach of the respondents' promise of confidentiality. In our view the motions judge clearly concluded that this alleged promise was collateral to the agreement sought to be specifically enforced. We agree with the motions judge that specific performance with an abatement is not available in these circumstances. Thus we would dismiss the appeal with costs. For completeness, paragraph 23 and the phrase "consequential to its claim for specific performance" in para. 20 are also struck from the statement of claim.

Appeal dismissed.