Court of Appeal for Ontario
Citation: Zesta Engineering Ltd. v. Cloutier, 2007 ONCA 471
Date: 20070626
Docket: C46431
Before: Goudge, Armstrong and Blair JJ.A.
Between:
Zesta Engineering Ltd.
Plaintiff (Respondent)
and
David Cloutier, Michael Jefferies, Hi-Cap Technologies, Guiseppe (Joseph) Durante, Keith Sanger, James White, Kelvin Technologies, Inc., Douglas Christie, 798068 Ontario Limited and Derek Peatling
Defendants (Appellant)
And Between:
David Cloutier, Kelvin Technologies Inc. and Giuseppe (Joseph) Durante
Plaintiffs by counterclaim
and
Zesta Engineering Ltd.
Defendant to the counterclaim
Counsel:
David Harris for the appellant David Cloutier and the defendants
Timothy Pinos for the respondent Zesta Engineering Ltd.
Heard: June 25, 2007
On appeal from the judgment of Justice Barbara Conway of the Superior Court of Justice dated December 7, 2006.
APPEAL BOOK ENDORSEMENT
[1] The majority, Blair J.A. dissenting, are of the view that the appeal must be allowed. The admission relied on by the motion judge does not in our view go so far as to admit that the appellant is liable for the full proceeds of the purchase and paid for by Husky of the machines in question. There appear to be material facts in dispute relating to whether Zesta acquired ownership of the machines ultimately purchased by Husky and as to whether Zesta paid Watlow for the machines in the first place. A resolution of both issues is necessary to establish the quantum of Zesta’s loss and therefore the damages owed by the appellant.
[2] Costs of the motion below and of this appeal reserved to the trial judge.