DATE: 20040219

DOCKET: C40723

COURT OF APPEAL FOR ONTARIO

RE:

SPILL TECH ENVIRONMENTAL INC. (Plaintiff (Respondent)) – and – INTERNATIONAL SPILL PRODUCTS INC. (Defendant (Appellant))

BEFORE:

ROSENBERG, MACPHERSON JJ.A. and LANE J. (AD HOC)

COUNSEL:

David Whitten

for the appellant

Brett Harrison

for the respondent

HEARD & ENDORSED:

February 18, 2004

On appeal from the judgment of Justice John C. Wilkins of the Superior Court of Justice dated September 9, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] While we do not agree with the motion judge that there was no basis for, as he put it, “piercing the corporate veil”, we are satisfied that he came to the right result in finding that there was no case for equitable set-off. The transaction involved here was a debt to an entirely different company incurred prior to the merger with the Spill Tech entity. There was therefore no basis for finding that the equitable ground went to the very root of the claim. It was also not shown that the claim was so clearly connected with demand of the appellant in the first action.

[2] As to the stay of execution, given the lack of understanding between this debt and the other claim, we cannot say that the motion judge erred in refusing to grant a stay of execution.

[3] Appeal dismissed with costs fixed at $5,000 inclusive of disbursements and G.S.T.

Signed: “Rosenberg J.A.”