COURT OF APPEAL FOR ONTARIO
RE:
KWANG YIN THAM and YA-LI CHEN (Plaintiffs (Respondents)) – and – JOHN LEE, MARY HUANG and HING LOONG INVESTMENTS LIMITED (Defendants (Appellants)
BEFORE:
FELDMAN, SHARPE AND SIMMONS JJ.A.
COUNSEL:
David Dolson
for the appellants John Lee et al.
Allen Rosen
for the respondents Kwang Yin Tham, et al.
HEARD:
March 16, 2007
On appeal from the judgment of Justice E. Eva Frank of the Superior Court of Justice dated August 10, 2006.
E N D O R S E M E N T
1The only issue pursued by the appellants at the appeal hearing was whether the motion judge erred in failing to order that the issue of the availability of a set-off for capital gains tax and liability for recapture proceed to trial
2We would not give effect to this ground of appeal. At the present time, there is only a potential future liability for capital gains tax and recapture. Accordingly, there are no existing claims capable of giving rise to a set-off. On this basis alone, the appeal must be dismissed. However, we should not be taken as otherwise endorsing all of the findings of the motion judge.
3This order is without prejudice to the appellants bringing a claim or counterclaim in respect of the alleged claims for capital gains tax and recapture, commencing a proceeding to attack the assignment of the promissory notes, or re-instating their request under rule 20.08 for a stay of enforcement of the summary judgment on the basis of any such claims, or other similar relief, if so advised.
4The appeal is therefore dismissed with costs to the respondents fixed at $7500.00 inclusive of disbursements and applicable G.S.T.
"K. Feldman J.A."
"Robert J. Sharpe J.A."
"Janet Simmons J.A."