DATE: 20040203

DOCKET: C38699

COURT OF APPEAL FOR ONTARIO

RE:

KEY DESIGNS LIMITED (Plaintiff (Appellant)) – and – CIRIL ZOVKO, IMPORTANNE MARKETING INC., IMPORTANNE DOO, IMPORTANNE INVESTMENTS DOO, IMPORTANNE GALLERIA (Defendants (Respondents))

BEFORE:

FELDMAN, MACPHERSON and CRONK JJ.A.

COUNSEL:

Lawrence J. Burns

for the appellant

Kenneth W. Movat and Kathryn Lack

for the respondents

HEARD & ENDORSED:

January 30, 2004

On appeal from the judgment of Justice Colin Campbell of the Superior Court of Justice dated July 10, 2002

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

[1] The appellant bases its appeal on the proposition that the trial judge erred in law in his application of the law of fiduciary obligations to a situation where parties are negotiating towards an agreement. In our view, the trial judge properly set out the test for finding a fiduciary duty existed. In his application of the test to the facts as he found them, we can see no palpable or overriding error. He was entitled to conclude, as he did, in paragraph 105 of the reasons that:

In the context of the relationship between Sarcanin on behalf of Key and Zovko, who talked about a syndicate, nothing more, there is nothing that could extend to a fiduciary-like duty or an obligation on the part of Zovko to ensure that Key be entitled to the profits from Ibler Square. The claim for relief under this heading is denied. None of the indicia of a fiduciary duty are present. Key did not repose trust of anything of a confidential nature to Zovko. Key was not vulnerable in the sense referred to in the cases.

[2] We would therefore dismiss the appeal with costs fixed in the amount of $8,000 inclusive of disbursements and G.S.T.

Signed: “K. Feldman J.A.