COURT OF APPEAL FOR ONTARIO
RE:
EXEL GLOBAL LOGISTICS (CANADA) INC. (Applicant (Respondent in Appeal)) – and – VICENZI BISCOTTI S.P.A. and VICENZI CANADA CORPORATION (Respondents (Appellants in Appeal))
BEFORE:
LABROSSE, LASKIN AND GOUDGE JJ.A.
COUNSEL:
E. Hyer
for the appellant
Lou Brzezinski John Polyzogopoulos
for the respondent
HEARD AND ENDORSED:
March 9, 2004
On appeal from the order of Justice Joan L. Lax of the Superior Court of Justice dated July 23, 2003.
A P P E A L B O O K E N D O R S E M E N T
1Motion withdrawn.
2The funds held in trust were to stand as security pending resolution of the dispute between the parties. In our view the claim of the respondent for payment and the set off claimed by the appellant are so interrelated that if the latter is to proceed, judgment ought not to have been granted on the former. The appeal is allowed and an order is substituted directing a trial both of the respondent’s claim and the appellant’s claim for set off. The monies are to remain in trust pending further court order. Cost of the appeal in the cause fixed at $7,500.