DATE: 20031016

DOCKET: C40019

COURT OF APPEAL FOR ONTARIO

RE:

MICHAEL KING and GOLDEN FLIGHT TRAVEL LTD. (Plaintiffs/Appellants) –and– THE TRAVEL INDUSTRY COUNCIL OF ONTARIO (Defendant/Respondent)

BEFORE:

MOLDAVER, BORINS and SHARPE JJ.A.

COUNSEL:

Michael King

the appellant in person

Trevor Branion

for the respondent

HEARD AND ENDORSED:

October 16, 2003

On appeal from the decision of Justice Nancy M. Mossip of the Superior Court of Justice dated February 28, 2003.

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

[1] The appellant raised a preliminary matter about whether Justice Borins should sit on the appeal. He alleged an appearance of bias because Justice Borins had been a member of two other panels dealing with other aspects of the appellant’s business affairs in which the appellant had not been successful. In our view, the appellant’s concerns are groundless and we see no merit in his application. Accordingly, we ordered the appeal to proceed with the panel as presently constituted.

[2] We see no basis for interfering with the conclusion of the motions judge. In particular, we are satisfied that she was correct in holding that the respondent owed no duty of care to the appellants with respect to the claims of their former customers. While there may be other reasons for concluding that there is no basis for a trial in the matter, we need not canvass them. Standing alone, the duty of care issue is fatal to the appellants’ claim.

[3] Accordingly, the appeal is dismissed, with costs fixed at $3,500.00 inclusive of G.S.T. and disbursements.