DATE: 20031208

DOCKET: C40164

COURT OF APPEAL FOR ONTARIO

RE:

EMILE CHOQUETTE and LUCILLE CHOQUETTE (Plaintiffs/Respondents in Appeal) –and– 1434406 ONTARIO INC. and BRUNO BRESSI (Defendants/Appellants in Appeal)

–and– JOSEPH BRESSI and NANCY BRESSI (Added Parties, Responding Parties to Motion/Appellants in Appeal)

BEFORE:

LABROSSE, SHARPE and ARMSTRONG JJ.A.

COUNSEL:

Gloria Balaban

for the appellants

Patrick G. Muise

for the respondents

HEARD AND ENDORSED:

December 8, 2003

On appeal from orders of Justice J. Robert MacKinnon of the Superior Court of Justice dated June 5, 2003 and August 26, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] Minutes of settlement were signed pursuant to which the Bressis were entitled to remain in possession on certain terms. The minutes provided how the funds are to be disbursed. The last item is that any remaining funds are to be paid to the mortgagor company or as it, and Joseph Bressi, direct.

[2] It is implicit from the minutes of settlement that the sale is to be bona fide and for fair market value.

[3] The endorsement of the motions judge specifies that an order is to issue in terms of the minutes of settlement. The order issued in the name of the motions judge does not comply with the minutes of settlement and he refused to amend his order. The minutes of settlement are clear. The appeal is allowed.

[4] The orders of June 5 and August 26, 2003 are set aside and an order is to go in terms of the minutes of settlement.

[5] Costs at $5,000 for all motions and the appeal.