Court File and Parties

CITATION: 6436145 Canada Limited v. Rockwest Property Inc., 2009 ONCA 496

DATE: 20090618

DOCKET: C49748

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Cronk JJ.A.

BETWEEN

6436145 Canada Limited

Applicant (Respondent in Appeal)

and

Rockwest Property Inc.

Respondent (Appellant in Appeal)

Counsel: Geoff R. Hall, for the appellant Peter Henderson, for the respondent

Heard: May 13, 2009

On appeal from the order of Justice S. Chapnik of the Superior Court of Justice dated October 31, 2008.

APPEAL BOOK ENDORSEMENT

[1] Given the nature of the relief sought in the respondent’s notice of application, it was open to the application judge to determine this application in the face of conflicting evidence, subject to her discretion to order the trial of an issue.

[2] There was clear conflicting documentary and testimonial evidence in this case. Nonetheless, it appears that both parties were content to have the application judge determine the matters in issue on the evidential record as it stood. Neither party required the trial of an issue.

[3] On the whole of this record, there was a clear evidential pathway to the application judge’s findings and we see no basis to interfere with them.

[4] Accordingly, the appeal is dismissed. Costs to the respondent in the amount of $12,310.00, inclusive of GST and disbursements.