DATE: 20031022

DOCKET: C39199

COURT OF APPEAL FOR ONTARIO

RE: LORRI KUSHNIR (Petitioner/Respondent) Appellant: Paul J. Pape & Associates – and – DAVID K. LOWRY (Respondent)

BEFORE: MCMURTRY C.J.O., SIMMONS and GILLESE JJ.A.

COUNSEL: Harvin D. Pitch for the appellant Paul J. Pape Jeffrey Kaufman and Alexis Kerr for the respondent Lorri Kushnir

HEARD: October 10, 2003

E N D O R S E M E N T

[1] In our view, as a result of a combination of the letter of October 3, 2001 and the voicemail message of October 5, 2001, there was a concluded agreement between Ms. Kushnir and Mr. Pape that Ms. Kushnir would pay Mr. Pape’s account in accordance with the terms of the October 3, 2001 letter. As part of that agreement, Ms. Kushnir gave up her right to have Mr. Pape’s account assessed. We see no reason in the circumstances of this case to override that agreement.

[2] As a result, the order of Laforme J. of November 5, 2002 is set aside and an order shall go ordering the petitioner Lorri Kushnir to pay the appellant the sum of $32,384.87. Costs of the appeal and below are ordered in favour of the appellant, Mr. Pape, fixed in the amounts of $3,500 and $1,000 respectively.

“R.R. McMurtry C.J.O.”

“J.M. Simmons J.A.”

“E.E. Gillese J.A.”