COURT OF APPEAL FOR ONTARIO

DATE: 20050314

DOCKET: C42107

RE:

TAMLANN INVESTMENTS LIMITED (Applicant (Respondent)) – and – 1038017 ONTARIO LIMITED, FRANK FIORE, LUCY FIORE, THE EFFORT TRUST COMPANY, TAYLOR LEIBOW INC. and CANADA REVENUE AGENCY (Respondents (Appellants))

BEFORE:

McMURTRY C.J.O., ARMSTRONG and LANG JJ.A.

COUNSEL:

J. Ivan Marini

for the appellants

Waldemar Zimmerman and Edgar-Andre Montigny

for the respondent

HEARD & RELEASED ORALLY:

March 10, 2005

On appeal from the order of Justice W. J. Festeryga of the Superior Court of Justice dated June 15, 2004.

E N D O R S E M E N T

[1] In our view, the offer presented to the court did not meet the requirements set out in the order of Whitten J. of May 27, 2004. It was not a binding offer without conditions which jeopardized the Tim Horton’s timeline. In addition, it was not an arms length offer in that the purchaser was one of the appellants.

[2] We therefore can find no palpable or over-riding error on the part of the motion judge. The appeal in respect of the merits is dismissed.

[3] In respect of the appeal from the order of costs, we are of the view that there is no basis to set aside the exercise of the motion judge’s discretion.

[4] Accordingly, leave to appeal costs is allowed but the appeal as to costs is dismissed.

[5] The respondents shall have their costs of this appeal fixed at $4,500 inclusive of Goods and Services Tax and disbursements.

“Roy McMurtry C.J.O.”

“Robert P. Armstrong J.A.”

“Susan E. Lang J.A.”