Douglas v. Magick Woods Limited, 2009 ONCA 404

CITATION: Douglas v. Magick Woods Limited, 2009 ONCA 404

DATE: 20090513

DOCKET: C49886

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Cronk JJ.A.

BETWEEN:

Nancy Douglas

Plaintiff (Respondent)

and

Magick Woods Limited

Defendant (Appellant)

Counsel:

Ronald Birken for the appellant

Kieran C. Dickson for the respondent

Heard and endorsed: May 13, 2009

On appeal from the judgment of Justice Alan Whitten of the Superior Court of Justice dated October 29, 2008.

APPEAL BOOK ENDORSEMENT

[1] It was open to the motion judge to act on the undisputed submissions of counsel concerning the settlement discussions between counsel. Both counsel agreed that in those discussions, no mention was made of the timing of the $80,000 payment, either by the appellant in making the offer or by the respondent in accepting it.

[2] In these circumstances, we see no error in the motion judge’s finding that the issue of timing of the payment was peripheral to the formation of the contract.

[3] As for the letter of reference, the issue raised on appeal was not raised before the motion judge. It is not open to the appellant, in the circumstances, to argue the point before this court.

[4] Accordingly, the appeal is dismissed. The respondent shall deliver the directions re payment referred to in paragraph 1 of the judgment forthwith and the appellant shall have 7 days after the date of delivery to make the requisite payment, whereupon the stay of garnishment proceedings will be vacated.

[5] Taking into account all of the motions and the appeal, the respondent is entitled to costs in the amount of $3,500 inclusive of G.S.T. and disbursements.