Court of Appeal for Ontario
DATE: 20051118
DOCKET: M32885 (C43269)
RE: NORDX/CDT INC. (Applicant (Respondent in Appeal)) – and – 1564168 ONTARIO INC. (Respondent (Appellant in Appeal) Moving Party)
BEFORE: DOHERTY, CRONK and MACFARLAND JJ.A.
COUNSEL: Ronald E. Carr for the appellant Vaso Maric for the respondent
HEARD & RELEASED ORALLY: November 16, 2005
ENDORSEMENT
[1] We see no error in the decision of LaForme J.A.
[2] The effect of the appellant’s delivery of its notice of appeal was to stay the execution of the trial judgment pending appeal. However, the judgment remains final unless and until it is reversed on appeal.
[3] Accordingly, absent such reversal, the appellant has no interest in the $300,000 deposit at issue and those funds are not available to satisfy any liability for costs which may be imposed on the appellant. There is no dispute that the appellant, a shell company, has no other assets available to satisfy any adverse costs award against it.
[4] Nor do we accept that LaForme J.A. erred in concluding that there appears to be “very little to no merit to the appeal”. It was open to the appellant to negotiate contractual protection in its favour concerning the worth of the indemnity to be transferred to it by the respondent. The appellant failed to do so. Moreover, although the appellant had the benefit of a broadly worded ‘escape clause’ under the Agreement of Purchase and Sale, it elected to waive the benefit of that clause at a time when it knew of the difficulties and anticipated costs associated with the environmental remediation of the site. In these circumstances, there appears to be no basis upon which to recognize an implied duty on the respondent to provide assurance as to the worth of the environmental indemnity.
[5] The motion to review is dismissed.
[6] The appellant is required to post security for costs in accordance with the Order of LaForme J.A. within ten days from today’s date, failing which the appeal shall be dismissed. The respondent is entitled to its costs of this motion fixed in the amount of $2,500, inclusive of disbursements and Goods and Services Tax.
“Doherty J.A.”
“E.A. Cronk J.A.”
“J. MacFarland J.A.”