DATE: 2004-04-26

DOCKET: C40887

COURT OF APPEAL FOR ONTARIO

RE: DIVERSITEL COMMUNICATIONS INC. (Plaintiffs (Respondents)) – and – GLACIER BAY INC. (Defendants (Appellants))

BEFORE: McMURTRY C.J.O., ABELLA and ROSENBERG JJ.A.

COUNSEL: Richard R. Marks for the appellants Paul K. Lepsoe and Peter Henein (student-at-law) for the respondent

HEARD: April 21, 2004

RELEASED ORALLY: April 21, 2004

On appeal from the order of Justice Giovanna Toscano Roccamo of the Superior Court of Justice dated October 6, 2003, made at Ottawa, Ontario.

E N D O R S E M E N T

[1] There was no dispute that the law to be applied in this case is as set out in the Supreme Court of Canada decision in Sail Labrador Ltd. v. Challenge One (The), 1999 708 (SCC), [1999] 1 S.C.R. 265. The motions judge referred to this law and found that time was of the essence in the contract. For the appellants to succeed in this appeal they had to show a palpable and overriding error in her findings. The appellant has not shown any such error.

[2] With respect to the fresh evidence, this is an attempt to produce the kind of evidence that the motions judge did not consider was relevant. An attempt to appeal that ruling was refused. In our view, the evidence, which is subject to different interpretations, does not meet the test for fresh evidence. It is not relevant. It does not take away from the motions judge’s finding that time was of the essence in this contract and therefore that there was a fundamental breach of the contract.

[3] Accordingly the appeal is dismissed with costs.

Signed: "R. Roy McMurtry CJO"

"R.S. Abella J.A."

"M. Rosenberg J.A."