Diversitel Communications Inc. v. Glacier Bay Inc.

Diversitel Communications Inc. v. Glacier Bay Inc.

The appeal is dismissed because the appellants failed to demonstrate a palpable and overriding error in the motions judge's finding that time was of the essence, and the proffered fresh evidence was irrelevant and did not meet the fresh evidence test; therefore the finding of fundamental breach and the motions judge's order stand.

Citation
C40887
Parties
Plaintiff/respondent: Diversitel Communications Inc.; Defendant/appellant: Glacier Bay Inc.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
26 April 2004
Procedural Posture
Collection / Appeal From Order of the Superior Court of Justice (motion Judge’s Order Dated October 6, 2003); Heard and Decided by Court of Appeal on April 21, 2004
Outcome
Appeal dismissed with costs.
Legal Topics
Time Is of the Essence, Fundamental Breach, Fresh Evidence, Standard of Review — Palpable and Overriding Error
Source Language
English
Civil Contract Time Is of the Essence Fundamental Breach Fresh Evidence Standard of Review — Palpable and Overriding Error

Case Brief

Summary, issues, holding and outcome

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Parties

Diversitel Communications Inc.

Plaintiff/respondent

Glacier Bay Inc.

Defendant/appellant

Procedural Posture

Collection / Appeal From Order of the Superior Court of Justice (motion Judge’s Order Dated October 6, 2003); Heard and Decided by Court of Appeal on April 21, 2004

Legal Issues

  1. 1 Whether the motions judge erred in finding time was of the essence of the contract
  2. 2 Whether the appellants established a palpable and overriding error warranting appellate intervention
  3. 3 Whether the proffered fresh evidence met the legal test for admission and could displace the motions judge's finding

Ratio Decidendi

The appeal is dismissed because the appellants failed to demonstrate a palpable and overriding error in the motions judge's finding that time was of the essence, and the proffered fresh evidence was irrelevant and did not meet the fresh evidence test; therefore the finding of fundamental breach and the motions judge's order stand.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.