DATE: 20060130

DOCKET: C44153

COURT OF APPEAL FOR ONTARIO

RE:

CUSTOM TRIM LTD. (Plaintiff (Appellant)) – and PROGRESSIVE MOULDED PRODUCTS, LTD. (Defendant (Respondent))

PROGRESSIVE MOULDED PRODUCTS, LTD. (Plaintiff by Counterclaim) – and – CUSTOM TRIM LTD., 1224194 ONTARIO INC., and BREED TECHNOLOGIES INC. (Defendants by Counterclaim)

BEFORE:

MOLDAVER, CRONK and LAFORME JJ.A.

COUNSEL:

Debra M. Haak

for the appellant

Roger Bourque

for the respondent

HEARD:

January 27, 2006

On appeal from the order of Justice Paul Perell of the Superior Court of Justice dated August 23, 2005.

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

[1] With respect to the learned motion judge, we are of the view that the impact of the Stipulated Order on the Amended Plan of Reorganization is a matter to be determined at trial because it turns on questions of foreign law.

[2] For this reason, paragraph one of the motion judge’s order cannot stand. The parties agree, correctly in our view, that if paragraph one falls, so too must paragraph two. In all other respects, the order remains the same.

[3] In the result, the appeal is allowed and the order is varied accordingly.

[4] In fairness to the motion judge, we are not at all certain that the issue on appeal was squarely argued before him. The parties will bear their own costs of the appeal.