DATE: 20030919

DOCKET: C37495

COURT OF APPEAL FOR ONTARIO

RE:

LORNA B. SUTHERLAND and SUSAN B. DWYER (Applicants (Respondents)) – and – ROBERT W.M. BIRKS, VICBIR HOLDINGS LTD. And VICBIR FAMILY FOUNDATION (Respondents (Appellants))

BEFORE:

FELDMAN, SIMMONS AND GILLESE JJ.A.

COUNSEL:

Vern Krishna, Q.C., Andrew M. Robinson and Kelly A. Charlebois

for the appellant

Ronald G. Slaght, Q.C. and Nina Bombier

for the respondent

HEARD:

May 6, 7, and 8, 2003

RELEASED:

July 14, 2003

S U P P L E M E N T A R Y E N D O R S E M E N T

[1] Following the release of our judgment dated July 14, 2003, the appellants requested that we clarify the effect of our judgment on two aspects of the trial judge’s order for interest.

[2] The first issue relates to interest on the respondents’ share of Vicbir’s RDTOH. Paragraph 1 of the trial judge’s Order included a formula for compensating the respondents for their share of Vicbir’s RDTOH. Our judgment makes a correction to that formula. The question of interest was not raised on appeal. We see no basis for interfering with the trial judge’s Order that the amounts payable under paragraph 1 bear interest at the rate of 6% per annum from and including January 1, 2001.

[3] The second issue relates to interest on the sale price of the shares that Robert Birks is deemed to have sold to Susan Dwyer.

[4] Paragraph 2 of the trial judge’s Order provides that Robert Birks is deemed to have sold certain shares to Susan Dwyer prior to the share redemption ordered in paragraph 1. Accordingly, in accordance with the terms of the trial judge’s Order, interest on Susan Dwyer’s share of the sums payable under paragraph 1 should be calculated on the net amount owing to Susan Dwyer after deducting the sum owing by her to Robert Birks for the reacquired shares.

"K. Feldman J.A."

"Janet Simmons J.A."

_ "E.E. Gillese J.A."