DATE: 20031029

DOCKET: C38127

COURT OF APPEAL FOR ONTARIO

RE:

CONCEPT SOURCE MANAGEMENT INC. (Applicant (Appellant)) – and – AFFINITY HEALTH SOLUTIONS INC. and MEDISOLUTION INC. (Respondents (Respondents))

BEFORE:

DOHERTY, GOUDGE AND CRONK JJ.A.

COUNSEL:

Martin Teplitsky

for the appellant

Linda Galessiere

for the respondent

HEARD & ENDORSED:

October 24, 2003

On appeal from Justice Lloyd Brennan of the Superior Court of Justice dated March 19, 2002.

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

[1] After hearing argument it is clear to us that there is a factual dispute as to the scope of the guarantee, and an insufficient factual basis in the record to determine the damages if any that would flow from a breach of that guarantee. These issues could not properly have been determined on an application under Rule 14.

[2] We would therefore allow the appeal, set aside the judgment below in its entirety and direct the trial of an issue on the alleged breach of the guarantee and the resulting damages. We would award costs below to the respondent of $16,000 and, given the appellant’s less than full success on the appeal, costs in this court to the appellant of $6,000 both inclusive of disbursements and G.S.T.