Court File and Parties

CITATION: Middleton v. Aboutown Enterprises Inc., 2009 ONCA 466

DATE: 20090608

DOCKET: C49548

COURT OF APPEAL FOR ONTARIO

Laskin, Moldaver and MacPherson JJ.A.

BETWEEN:

Gordon R. Middleton, Judy Middleton and Bob N. Ramsey

Plaintiffs (Appellants)

and

Aboutown Enterprises Inc., Aboutown Transportation Limited, Aboutown Medical Transfer Inc. and Transcare Medical Transportation Inc.

Defendants (Respondents)

Counsel:

John G. Richardson for the appellants

John H. McNair for the respondents

Heard and endorsed: June 3, 2009

On appeal from the order of Justice Thomas Lederer of the Superior Court of Justice dated September 19, 2008.

APPEAL BOOK ENDORSEMENT

[1] We do not accept the motion judge’s statement that to stand as an acknowledgment, the letter and Release would, “at a minimum, have to demonstrate and confirm the amount of the debt that remained owing”. That said, we agree with his conclusion that the letter and unsigned Release, even when read in light of the share purchase agreement, did not constitute a clear and unequivocal acknowledgement of the debt claimed, with a proposal to satisfy it, as opposed to a mere offer to settle a claim, without acknowledging that $412,500 or indeed any amount remained owing in respect of the promissory note.

[2] In view of that conclusion, we need not address the second issue, namely, whether the letter and unsigned Release were prepared in relation to settlement discussions, such that they should be treated as privileged and thus inadmissible to prove the alleged acknowledgement.

[3] Accordingly, the appeal is dismissed.

[4] Costs to respondent in the amount of $7,500 inclusive of G.S.T. and disbursement.