Court of Appeal for Ontario
BEFORE: Laskin, Lauwers and Hourigan JJ.A.
BETWEEN
Arminak & Associates Inc.
Plaintiff (Respondent)
and
Apollo Health and Beauty Care, Apollo Beauty Corp. and Apollo Health Corp.
Defendants (Appellants)
COUNSEL:
Richard Stephenson and Michael Fenrick, for the appellants
James Zibarras and Adam Weissman, for the respondent
Heard and released orally: April 11, 2016
On appeal from the judgment of Justice David L. Corbett of the Superior Court of Justice, dated August 1, 2015.
ENDORSEMENT
1The appellants’ main submission is that the motion judge erred in granting summary judgment in the face of a viable set-off defence. They buttress this submission with the argument that dismissing the set-off defence, yet permitting the counterclaim to proceed was inconsistent.
2We do not accept the appellants’ submission. The motion judge’s order is an exercise of discretion. He exercised that discretion reasonably. He had given the appellants a year to put forward some evidence of their damages claim. They did not do so. At best they were left with a punitive damages claim that the motion judge thought did not appear to be substantial.
3In the light of the record before him, it was open to the motion judge to dismiss the set-off defence while allowing the counterclaim to proceed. Without any evidence of the appellants’ damages, we are not persuaded of any inconsistency in the motion judge’s decision.
4The appeal is therefore dismissed with costs to the respondent in the amount of $13,000 inclusive of disbursements and applicable taxes.
“John Laskin J.A.”
“P. Lauwers J.A.”
“C.W. Hourigan J.A.”