DATE: 20050707

DOCKET: C43214

COURT OF APPEAL FOR ONTARIO

RE:

WATERLOO‑OXFORD CO‑OPERATIVE INC. (Plaintiff/Appellant) – and – VICTOR J. HAMM (Defendant/Respondent)

BEFORE:

DOHERTY, MACPHERSON and CRONK JJ.A.

COUNSEL:

Steven D. Gadbois

for the appellant

Douglas E. Snider

for the respondent

HEARD & ENDORSED:

July 5, 2005

On appeal from the judgments of Justice Patrick Joseph Flynn of the Superior Court of Justice dated February 8, 2005 and March 4, 2005.

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

[1] In light of the shared position of the parties that the guarantee was not ambiguous, coupled with their opposing interpretations of its meaning, we cannot say that the motion judge’s conclusion that the guarantee lacks sufficient precision to be enforced was in error. The guarantee in issue was remarkably skeletal, especially for a financial institution. It is not surprising that the motion judge concluded that he could not see sufficiently clear terms to render the guarantee enforceable.

[2] The appellant acknowledges that its claim depends entirely on the guarantee. Having held that the guarantee is not enforceable, it follows that the action was properly dismissed.

[3] The appeal is dismissed. Costs to the respondent fixed at $4,000 inclusive of disbursements and GST.