DATE: 20041015

DOCKET: C41764

COURT OF APPEAL FOR ONTARIO

RE: ILANA BALILTY (Plaintiff/Respondent) – and COMMERCIAL ALUMINUM SOLUTIONS INC. (Defendant/Appellant)

BEFORE: SIMMONS, GILLESE JJ.A. and HENNESSY J. (ad hoc)

COUNSEL: Paul Bauerle for the appellant Alistair Riswick for the respondent

HEARD & ENDORSED: October 14, 2004

On appeal from judgment of Justice C. Raymond Harris of the Superior Court of Justice dated April 1, 2004.

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

[1] The motions judge determined that the appellant’s defence was not a valid defence to the respondent’s claim under a promissory note. He based his conclusion on the law that the doctrine of equitable set‑off does not apply to claims under bills of exchange. While a promissory note may not be a bill of exchange for all purposes, the rationale for not allowing the doctrine of equitable set‑off to apply to claims under bills of exchange is applicable to promissory notes. Moreover, the appellant’s counterclaim was dismissed and no appeal is taken from that decision.

[2] We note that the action brought by the appellant against Commercial Aluminum Systems Inc. (“Systems”) is an action against a different party than the respondent. Thus, a successful outcome for the appellant in the action against Systems will not give rise to rights against the respondent. Rule 20.08 is not available to the appellant as a basis for a request for a stay as R. 20.08 is directed at determination of issues in a single action.

[3] Accordingly, the appeal is dismissed and an order shall go directing that the funds being held in escrow by the appellant’s solicitors are to be paid to the respondent.

[4] Costs of the appeal are to the respondent in a partial indemnity basis fixed at $4283.00, inclusive of disbursements and GST.