





CITATION: T.W. Johnstone Company
          Ltd. v. Leader Capital Corp., 2011 ONCA 202



DATE: 20110314



DOCKET: C52509



COURT OF APPEAL FOR ONTARIO



Doherty, Feldman and Epstein JJ.A.



BETWEEN



T.W. Johnstone Company Ltd.



Respondent (Plaintiff)



and



Leader Capital Corp. and Leader Energy Corp.



Appellants (Defendants)



Barry Appleton and Kyle Dickson-Smith, for appellants



S. Michael Robertson, for the respondent



Heard:  March 11, 2011



On appeal from the judgment of Justice Rady of the Superior
          Court of Justice dated July 22, 2010.



APPEAL BOOK ENDORSEMENT



[1]

The motion judge had the power to vary the consent stay order in light
    of the changed circumstances:  see Rule 59.06.

[2]

The motion judge found that the appellants acted in bad faith in the
    conduct of the arbitration/mediation process.  That finding is fully
    justified.  It does not lie in the mouth of the appellants to seek the
    protection of the procedural provisions of the mediation/arbitration
    provisions.  In any event, as the motion judge held there was functional compliance
    with the notice requirement in para. 8 of the contract.

[3]

As we would not interfere with the motion judges findings of bad faith,
    there are no grounds upon which to interfere with her costs disposition.

[4]

Costs to the respondent in the amount of $10,000, inclusive of
    disbursements and HST.


