CITATION: Osprey Gold Corporation v. Sheldon Huxtable Professional Corporation, 2008 ONCA 143

DATE: 20080228

DOCKET: C47156

COURT OF APPEAL FOR ONTARIO

LANG, MACFARLAND and LAFORME JJ.A.

BETWEEN:

OSPREY GOLD CORPORATION

Applicant (Respondent to Appeal)

and

SHELDON HUXTABLE PROFESSIONAL CORPORATION

Respondent (Appellant)

Allan D. Powell for the appellant

S. Cumming for the respondent

Heard: February 26, 2008

On appeal from the judgment of Justice Hoilett of the Superior Court of Justice dated April 18 2007.

APPEAL BOOK ENDORSEMENT

[1] The application judge concluded on overwhelming evidence, including the references in correspondence, that Mr. Sheldon acted as counsel for Osprey Gold. In particular, Mr. Sheldon acted for Osprey Gold when he received the monies from Sun Ventures. Sun paid the monies to Mr. Sheldon’s firm in that capacity and specified that the monies “may be advanced from time to time to or for the benefit of Osprey Gold Corp.”

[2] The appellant argues that there was conflicting evidence necessitating a trial of the issue about whether Mr. Sheldon was in fact acting for Osprey Gold or only for certain of its directors. We do not agree.

[3] At the relevant times, Mr. Sheldon, on his own evidence, believed he was counsel to Osprey Gold and conducted himself in that capacity. While his perception may have subsequently changed, that change is not relevant to his status when he received the monies in trust.

[4] The appellant also questions the application judge’s jurisdiction to order information regarding the trust account. We see no merit to this argument.

[5] Accordingly, the appeal is dismissed. Costs of $4,500 inclusive of disbursements plus GST to the respondent.