Tamlann Investments Limited v. 1038017 Ontario Limited
The offer failed to meet the requirements of Whitten J.'s order because it was conditional and not arm's length (the purchaser was one of the appellants) and thus the motion judge did not commit a palpable and overriding error; therefore the appeal on the merits is dismissed and the costs appeal is dismissed though...
Source-derived case information.
- Citation
- C42107
- Parties
- Respondent: Tamlann Investments Limited; Appellant: 1038017 Ontario Limited; Appellant: Frank Fiore; Appellant: Lucy Fiore; Appellant: The Effort Trust Company; Appellant: Taylor Leibow Inc.; Appellant: Canada Revenue Agency
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 14 March 2005
- Procedural Posture
- Civil Appeal / Appeal From Superior Court Motion Judge Order
- Outcome
- Appeal dismissed; leave to appeal costs allowed but appeal as to costs dismissed; respondents awarded costs of this appeal fixed at $4,500 inclusive of GST and disbursements.
- Legal Topics
- Offer to Court, Binding Offer Requirement, Arm's Length Transaction, Standard of Appellate Review, Discretion on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tamlann Investments Limited
Respondent
1038017 Ontario Limited
Appellant
Frank Fiore
Appellant
Lucy Fiore
Appellant
The Effort Trust Company
Appellant
Taylor Leibow Inc.
Appellant
Canada Revenue Agency
Appellant
Procedural Posture
Civil Appeal / Appeal From Superior Court Motion Judge Order
Legal Issues
- 1 Whether the offer complied with the prior order of Whitten J. (binding, unconditional and arm's length)
- 2 Whether the motion judge committed a palpable and overriding error on the merits
- 3 Whether the motion judge's costs order was properly exercise of discretion
Ratio Decidendi
The offer failed to meet the requirements of Whitten J.'s order because it was conditional and not arm's length (the purchaser was one of the appellants) and thus the motion judge did not commit a palpable and overriding error; therefore the appeal on the merits is dismissed and the costs appeal is dismissed though leave to appeal costs was granted; costs of the appeal were fixed at $4,500 inclusive of GST and disbursements to the respondents.
Court Disposition
Appeal dismissed; leave to appeal costs allowed but appeal as to costs dismissed; respondents awarded costs of this appeal fixed at $4,500 inclusive of GST and disbursements.
Orders
- Appeal dismissed
- Leave to appeal costs allowed
Full Case Text
Judgment text and source record
1 paragraphs
Tamlann Investments Limited v. 1038017 Ontario Limited Collection Decisions of the Court of Appeal Date 2005-03-14 Docket numbers C42107 Judges McMurtry, Roy; Armstrong, Robert Patrick; Lang, Susan Elizabeth Subject Civil Decision Content DATE: 20050314 DOCKET: C42107 COURT OF APPEAL FOR ONTARIO RE: TAMLANN INVESTMENTS LIMITED (Applicant (Respondent)) – and – 1038017 ONTARIO LIMITED, FRANK FIORE, LUCY FIORE, THE EFFORT TRUST COMPANY, TAYLOR LEIBOW INC. and CANADA REVENUE AGENCY (Respondents (Appellants)) BEFORE: McMURTRY C.J.O., ARMSTRONG and LANG JJ.A. COUNSEL: J. Ivan Marini for the appellants Waldemar Zimmerman and Edgar-Andre Montigny for the respondent HEARD & RELEASED ORALLY: March 10, 2005 On appeal from the order of Justice W. J. Festeryga of the Superior Court of Justice dated June 15, 2004. ENDORSEMENT [1] In our view, the offer presented to the court did not meet the requirements set out in the order of Whitten J. of May 27, 2004. It was not a binding offer without conditions which jeopardized the Tim Horton’s timeline. In addition, it was not an arms length offer in that the purchaser was one of the appellants. [2] We therefore can find no palpable or over-riding error on the part of the motion judge. The appeal in respect of the merits is dismissed. [3] In respect of the appeal from the order of costs, we are of the view that there is no basis to set aside the exercise of the motion judge’s discretion. [4] Accordingly, leave to appeal costs is allowed but the appeal as to costs is dismissed. [5] The respondents shall have their costs of this appeal fixed at $4,500 inclusive of Goods and Services Tax and disbursements. “Roy McMurtry C.J.O.” “Robert P. Armstrong J.A.” “Susan E. Lang J.A.”