DATE: 20050120

DOCKET: C41415-C41416

COURT OF APPEAL FOR ONTARIO

RE:

THE BANK OF NOVA SCOTIA (Plaintiff/Respondent) v. JOACHIM MAIER (Defendant/Appellant) – and – JOACHIM MAIER (Plaintiff by Counterclaim/Appellant) v. THE BANK OF NOVA SCOTIA and THE ROSE CORPORATION (Defendants by Counterclaim/Respondents) – AND – THE ROSE CORPORATION (Plaintiff/Respondent) v. JOACHIM MAIER (Defendant/Appellant)

BEFORE:

DOHERTY, BORINS and SHARPE JJ.A.

COUNSEL:

Howard Markowitz

for the appellant

John MacDonald and Derek Leschinsky

for the Bank of Nova Scotia

Stephen R. Morrison

for the Rose Corporation

HEARD & ENDORSED:

January 19, 2005

On appeal from the judgment of Justice Pepall of the Superior Court of Justice dated January 23, 2004.

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

[1] On the facts as found by the trial judge, the legal principles relied on by the appellant could not possibly have any application. Those findings cannot be successfully challenged in this court. The appeal is dismissed.

[2] Costs to the respondents on a partial indemnity basis.

[3] Costs to the respondent Bank fixed in the amount of $15,000.00, inclusive of GST and disbursements.

[4] Costs to the respondent Rose Corporation, whose counsel concedes played a secondary role in the preparation of the response, fixed in the amount of $7,500.00, inclusive of disbursements and GST.