DATE: 20060228
DOCKET: C42245
COURT OF APPEAL FOR ONTARIO
RE:
OLSEN INDUSTRIES INC. (Plaintiff/Respondent) v. ENERZONE INC. (Defendant/Appellant)
BEFORE:
LABROSSE, BLAIR and ROULEAU JJ.A.
COUNSEL:
Stuart R. Mackay
for the appellant
Wade W. Sarasin
for the respondent
HEARD & ENDORSED:
February 23, 2006
On appeal from the judgment of Justice J. Donnelly of the Superior Court of Justice dated July 12, 2004.
A P P E A L B O O K E N D O R S E M E N T
[1] There was ample evidence to support the trial judge’s findings that Olsen did not receive value or benefit for its payment, that Enerzone failed to perform its contractual obligations to do all things necessary to develop the product and failed to use its best efforts to meet time goals. These breaches were not condoned. There is no palpable and overriding error.
[2] The appeal is dismissed. Costs to the respondent fixed at $5,500.