DATE: 20050217

DOCKET: C42600

COURT OF APPEAL FOR ONTARIO

RE:

CANADIAN PROPERTY HOLDINGS (ONTARIO) INC. (Respondent) – and – McGEE CAPITAL MANAGEMENT LIMITED and 1046011 ONTARIO INC.

BEFORE:

MacPHERSON, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Bruce A. Simpson

for the appellant

Robert Kennedy

for the respondent

HEARD & ENDORSED:

February 15, 2005

On appeal from the judgment of Justice Gerald Day of the Superior Court of Justice dated October 13, 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 motion judge that the lease amending agreement is a duly constituted and executed agreement that stands alone. We do not agree with the appellant’s argument that it had an obligation under the proposed letter dated October 1, 2003 to execute the lease amending agreement regardless whether the landlord waived the condition in its favour. The appeal is dismissed. Costs fixed in the amount of $4,950 inclusive of disbursements and GST to be paid by the appellant to the respondent.