DATE: 20060711

DOCKET: C41920

COURT OF APPEAL FOR ONTARIO

RE:

HENLEY CAPITAL CORPORATION (Plaintiff/Respondent) – and – CABLE ATLANTIC INC. (Defendant/Appellant)

BEFORE:

LASKIN, BLAIR JJ.A. and THEN J. (ad hoc)

COUNSEL:

Howard B. Borlack and Lisa La Horey

for the appellant

Dana B. Fuller and Erin Miller-Rankin

for the respondent

HEARD & RELEASED ORALLY:

June 29, 2006

On appeal from the judgment of Justice Mary Anne Sanderson of the Superior Court of Justice dated May 5, 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 basis of the written documentation and the evidence before her, we are satisfied that the trial judge did not err in finding an enforceable agreement to pay a success fee. As she held at para. 179 of the reasons, the amount of the success fee was to be $15,000 for each transaction adjusted upward “on normal commercial terms”.

[2] It is not entirely clear how the trial judge arrived at the quantum of damages she awarded. However, in arriving at her decision she took into account such factors as amounts typically paid to investment bankers in similar situations (recognizing that Henley Capital was not to be paid for full investment services), the provision of services and advice over and above those originally requested, time spent and value added. These are factors she was entitled to consider under the rubric of “normal commercial terms.”

[3] Assessing damages in circumstances such as these is not a science and trial judges must do the best they can. In all the circumstances we see no basis for interfering with her award in this case.

[4] The appeal is dismissed with costs in the agreed amount of $40,000 all inclusive.