COURT OF APPEAL FOR ONTARIO
Rosenberg, Gillese and Tulloch JJ.A.
BETWEEN
Can-Home Contracting Inc., carrying on business as Home Insulation
Plaintiff/Respondent
and
Marel Contractors
Defendant/Appellant
Mark Veneziano and Dena N. Varah, for the appellant
Morris Cooper, for the respondent
Heard and released orally: October 22, 2012
On appeal from the judgment of Justice Paul Perell of the Superior Court of Justice, dated February 6, 2012.
ENDORSEMENT
1The only real issue that was raised on this appeal is whether the defence of equitable set-off required that the entire matter should proceed to trial.
2The motions judge distinguished between the types of services provided, which in our view, was a purely factual matter. This was open to the motions judge to so find. Indeed, all the appellant’s internal documents make this distinction.
3The matter of the attic insulation does proceed to trial, as does the equitable set-off claims against it.
4In our view, there is no error in granting partial summary judgment with respect to the spray foam insulation.
5Accordingly, the appeal is dismissed.
6The respondent is entitled to its costs fixed at $5,000.00 inclusive of disbursements and H.S.T.
“M. Rosenberg J.A.”
“E.E. Gillese J.A.”
“M. Tulloch J.A.”