DATE: 20050707

DOCKET: C42717

COURT OF APPEAL FOR ONTARIO

RE:

OZ OPTICS LIMITED (Plaintiff/Appellant) – and – DIMENSIONAL COMMUNICATIONS INC. (Defendant/Respondent)

BEFORE:

MACPHERSON, CRONK and MACFARLAND JJ.A.

COUNSEL:

Stephen Victor Q.C. and David Cutler

for the appellant

Andrew M. Robinson and Kelly A. Charlebois

for the respondent

HEARD & ENDORSED:

July 7, 2005

On appeal from the order of Justice Michael Quigley of the Superior Court of Justice dated November 5, 2004.

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

[1] We agree with the excellent reason of Quigley J. The record of the New Jersey proceedings shows that the issue of unlawful possession was raised and considered in the course of those proceedings and determined in the respondent’s favour. The issue of possession of the booth was a fundamental issue to be determined, and was integral to the determination of the appellant’s set‑off/recoupment claim.

[2] The appeal is dismissed. The respondent is entitled to costs which are fixed at $11,000 inclusive of disbursements and GST.