DATE: 20040309

DOCKET: C40392

COURT OF APPEAL FOR ONTARIO

RE:

EXEL GLOBAL LOGISTICS (CANADA) INC. (Applicant (Respondent in Appeal)) – and – VICENZI BISCOTTI S.P.A. and VICENZI CANADA CORPORATION (Respondents (Appellants in Appeal))

BEFORE:

LABROSSE, LASKIN AND GOUDGE JJ.A.

COUNSEL:

E. Hyer

for the appellant

Lou Brzezinski John Polyzogopoulos

for the respondent

HEARD AND ENDORSED:

March 9, 2004

On appeal from the order of Justice Joan L. Lax of the Superior Court of Justice dated July 23, 2003.

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

[1] Motion withdrawn.

[2] The funds held in trust were to stand as security pending resolution of the dispute between the parties. In our view the claim of the respondent for payment and the set off claimed by the appellant are so interrelated that if the latter is to proceed, judgment ought not to have been granted on the former. The appeal is allowed and an order is substituted directing a trial both of the respondent’s claim and the appellant’s claim for set off. The monies are to remain in trust pending further court order. Cost of the appeal in the cause fixed at $7,500.