DATE: 20051214

DOCKET: C42941

COURT OF APPEAL FOR ONTARIO

RE:

GUELPH STORM LTD., JAMES ROONEY, JANEFIELD DEVELOPMENTS INC., THERESA HEELEY, HOGG FUEL & SUPPLY LIMITED and 1136324 ONTARIO INC. (Applicants/Appellants) – and – GUELPH CENTRE PARTNERS INC. (Respondents)

BEFORE:

WEILER, BLAIR and ROULEAU JJ.A.

COUNSEL:

Glenn Hainey and Natalie Mullins

for the appellant

James H. Bennett

for the respondent

HEARD & RELEASED ORALLY:

December 12, 2005

On appeal from the judgment of Justice P. B. Hambly of the Superior Court of Justice dated January 4, 2005.

E N D O R S E M E N T

[1] The appellant seeks to have this Court declare that the application judge erred in not finding that there was an agreement to sell the Guelph Storm in an exchange of correspondence. In support of its submission the appellant alleges that the application judge failed to adopt a contextual approach in considering two letters that it says resulted in the formation of a contract.

[2] Having regard to the factual matrix, it was open to the trial judge to find that the exchange of correspondence did not constitute a binding offer and acceptance. We are not persuaded that in the circumstances the trial judge made any palpable and overriding error in this respect.

[3] A subsidiary issue was whether the trial judge erred in ordering costs to the respondent on a substantial indemnity scale although its contempt application did not succeed. We do not read the application judge’s endorsement as holding that he was only ordering costs of the contempt proceedings but as one in which he combined the two matters before him and made a single order as to costs. The application judge stated that the application for a declaration that there was an agreement of purchase and sale merged with the contempt/enforcement proceedings. Although the application judge made no finding of contempt, he made an order that the appellant was to comply with the earlier order. The application judge was justified in ordering costs on a substantial indemnity scale in favour of the respondent because of the appellant’s prolonged delay and clear attempts to avoid its simple obligations under the Facility Licence Agreement, then the minutes of settlement and finally the judgment. Accordingly the appeal is dismissed.

[4] Costs of the appeal are agreed in the amount of $20,000 all inclusive and are awarded to the respondent.

“K. M. Weiler J.A.”

“R. A. Blair J.A.”

“Paul Rouleau J.A.”