DATE: 20050427

DOCKET: C42231

COURT OF APPEAL FOR ONTARIO

RE:

TORONTO INSTITUTE OF PHARMACEUTICAL TECHNOLOGY (Respondent (Plaintiff/Defendant by Counterclaim) – and – FLEMINGER, INC. (Appellant (Defendant/Plaintiff by Counterclaim))

BEFORE:

FELDMAN, CRONK and JURIANSZ JJ.A.

COUNSEL:

Paul J. Pape

for the appellant Fleminger, Inc.

Jason J. Annibale

for the respondent Toronto Institute of

Pharmaceutical Technology

HEARD & RELEASED ORALLY:

April 15, 2005

On appeal from the order of Justice Romain Pitt of the Superior Court of Justice dated July 9, 2004.

E N D O R S E M E N T

[1] Under the Minutes of Settlement, the Toronto Institute of Pharmaceutical Technology (TIPT) was obliged to provide two quotes to Fleminger, Inc., and Fleminger was obliged to pay half of the lowest “acceptable” price. Some meaning must be given to the word “acceptable”. A cursory review of the cross-examinations of the individuals who submitted the quotes reveals that the quotes were not bona fide. These individuals were not carrying on any legitimate hazardous waste management business. Contrary to the representations contained in the written quotes, they did not have the necessary licences, nor the necessary equipment and facilities. The quotes were shams and cannot be viewed as “acceptable” in accordance with the requirements of the Minutes of Settlement.

[2] Based on the reasons of the motion judge, we are not persuaded that he took these factors into account as determinative of the issue in this case. Rather, he focused on whether the prices disclosed in the quotes were reasonable based on the expert evidence presented and not on whether the quotes were acceptable.

[3] We agree with the appellant’s submission that, as shams, these quotes were unacceptable. As a result, the motion judge erred in law in concluding that there was no basis in law to refuse to enforce the Minutes of Settlement.

[4] The appeal is allowed and the order of the motion judge is amended as follows:

(1) paragraph 1 is set aside;

(2) paragraph 2 is set aside;

(3) in paragraph 3, the word “remaining” is deleted and after the words “TIPT” the following words are to be added: “after deducting costs below payable to Fleminger and fixed at $25,000 inclusive, and costs of the appeal payable to Fleminger and fixed at $15,000 inclusive”.

Signed: “K. Feldman J.A.”

“E.A. Cronk J.A.”

“R.S. Juriansz J.A.”