DATE: 20030903 DOCKET: C38854

COURT OF APPEAL FOR ONTARIO

RE:

FIRST CHOICE PETROLEUM INC. (Plaintiff/Respondent) -and- 1186728 ONTARIO LTD., operating as SUNRISE PETROLEUM, LEON BELAHOV and SEAN BEN-MOSHE also known as SHAY BEN-MOSHE (Defendants/Appellants)

BEFORE:

LABROSSE, ABELLA and CRONK JJ.A.

COUNSEL:

Elliot S. Birnboim for the defendants/appellants

Andrew D. Felker for the plaintiff/respondent

HEARD & ENDORSED:

September 3, 2003

On appeal from the judgment of Justice Bruce A. Glass of the Superior Court of Justice dated September 3, 2002.

APPEAL BOOK ENDORSEMENT

[1] The findings of fact by the trial judge which were open to him on the evidence are fatal to the issues raised on the appeal.

[2] The issue of the interest was a question of contract and was properly pleaded as such.

[3] The appeal is dismissed with costs fixed at $5,000.