Federal Court of Appeal Decisions

Date: 20091112

Docket: A-103-09

Citation: 2009 FCA 327

CORAM:       NADON J.A.

                        PELLETIER J.A.

                        TRUDEL J.A.

BETWEEN:

VALON KONE BRUNETTE LTD. and

BDR MACHINERY LTD.

Appellants

and

REALSEARCH INC. and

DINGWELL’S MACHINERY & SUPPLY LTD.

Respondents

Heard at Toronto, Ontario, on November 12, 2009.

Judgment delivered from the Bench at Toronto, Ontario, on November 12, 2009.

REASONS FOR JUDGMENT OF THE COURT BY:                                            PELLETIER J.A.

Date: 20091112

Docket: A-103-09

Citation: 2009 FCA 327

CORAM:       NADON J.A.

                        PELLETIER J.A.

                        TRUDEL J.A.

BETWEEN:

VALON KONE BRUNETTE LTD. and

BDR MACHINERY LTD.

Appellants

and

REALSEARCH INC. and

DINGWELL’S MACHINERY & SUPPLY LTD.

Respondents

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on November 12, 2009)

PELLETIER J.A._

[1]               We are all of the view that the appellants have not met the burden of showing that the order under appeal is the product of “the clearest case of the misuse of judicial discretion” as was said in L’Hirondelle v. Canada, 2001 FCA 399 at paragraph 4.

[2]               There was evidence to support the judge’s conclusion that Realsearch Inc. had assets available to satisfy the amount of costs claimed.  We are also satisfied that the judge did not take into account any assets owned by Dingwall’s Machinery and Supply Ltd.

[3]               As a result, there is no basis for our intervention.  The appeal should be dismissed with costs.

“J.D. Denis Pelletier”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-103-09

(APPEAL FROM AN AMENDED ORDER OF THE HONOURABLE MR. JUSTICE SIMON NOËL DATED FEBRUARY 16, 2009, DOCKET NO. T-1300-02)

STYLE OF CAUSE:                                                              VALON KONE BRUNETTE LTD. and BDR MACHINERY LTD. v. REALSEARCH INC. and DINGWELL’S MACHINERY & SUPPLY LTD.

PLACE OF HEARING:                                                        Toronto, Ontario

DATE OF HEARING:                                                          November 12, 2009

REASONS FOR JUDGMENT OF THE COURT BY:       (NADON, PELLETIER & TRUDEL JJ.A.)

DELIVERED FROM THE BENCH BY:                            PELLETIER J.A.

APPEARANCES:

SOLICITORS OF RECORD: