DATE: 20040114

DOCKET: M30574

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant) – and – PETRO CANADA (respondent)

BEFORE:

MOLDAVER J.A. (In Chambers)

COUNSEL:

Jerry Herlihy and John J. Semenoff

for the appellant

Bryan Buttigieg

for the respondent

HEARD:

January 14, 2004

E N D O R S E M E N T

[1] I have not been persuaded that this is a case in which special leave should be granted. I say that even though I believe that the Justice of the Peace may well have been wrong in refusing to admit into evidence Mr. Suess’ letter of April 7, 2000 and the documents referred to in it as enclosures. I will say no more about the matter other than to note that in deciding whether the enclosures were in fact sent with Mr. Suess’ letter, the Justice of the Peace should have considered the circumstantial evidence in deciding whether the requisite finding could or could not be made.

[2] As for the reasons of Cowan J., I do not read them to mean that if Mr. Seuss’ letter and the enclosures had been received in evidence, he would nonetheless have upheld the non-suit because no one in authority from Petro Canada had adopted the contents of the Rainbow Trout Lethality Test. If however, I have misread his reasons and that is what he did mean, then I would respectfully doubt the correctness of his position.

[3] In the result, the application for special leave to appeal is denied.

Signed: “M. J. Moldaver J.A.”

“January 14, 2004