COURT OF APPEAL FOR ONTARIO

DATE: 20031027

DOCKET: C40134

RE: JEROME WILLIAMS (Plaintiff) (Respondent) – and – GOOD CALL PRODUCTIONS LTD. (Defendant) (Appellant)

BEFORE: O’CONNOR A.C.J.O., CATZMAN and WEILER JJ.A.

COUNSEL: Robert P. Marcantonio for the appellant Terrence J. O’Sullivan and Nathaniel Carnegie for the respondent

HEARD: October 21, 2003

RELEASED ORALLY: October 21, 2003

On appeal from the judgment of Justice Janet M. Wilson of the Superior Court of Justice dated May 8, 2003.

E N D O R S E M E N T

[1] Jerome Williams, (“Williams”) an NBA basketball player, brought an action for a declaration that he and Good Call Productions Ltd. entered into a binding and enforceable settlement agreement whereby Good Call agreed to deliver to Williams the final version of a Digital Video Disk (DVD) it had made of one of his basketball games in exchange for payment of an additional $10,000 over and above the $50,000 he had already agreed to pay. Williams then brought a motion for summary judgment that Wilson J. granted. Good Call appeals on the basis that the motion judge erred in holding that there were no genuine issues for trial.

[2] In our opinion, the motion judge did not err in holding that there was no genuine issue for trial. The e-mail sent by counsel for Good Call on November 15, 2002, is clear and unequivocal in its acceptance of Williams’ offer to pay an additional $10,000 for the DVD. Although Williams’ counsel later sought to impose a condition, reasonable in the circumstances, that he view the DVD and that it be acceptable to him, we agree with Wilson J. that does not mean there was no agreement reached on November 15, 2002.

[3] Further, there was no unacceptable conduct on the part of Williams that resulted in economic duress to Good Call. On the issue of repudiation, we agree with the motion judge that if one repudiates an agreement, the innocent party must elect promptly to either enforce the contract, or accept the repudiation and sue for damages. Good Call did not adopt either course and only alleged repudiation at the motion for summary judgment. We would dismiss the appeal and uphold the decision of Wilson J.

[4] Costs to the respondent fixed in the amount of $5,000, inclusive of disbursements and GST.

“Dennis O’Connor A.C.J.O.”

“M.A. Catzman J.A.”

“K. M. Weiler J.A.”