CITATION: Tham v. Lee, 2007 ONCA 228

DATE: 20070329

DOCKET: C45919

COURT OF APPEAL FOR ONTARIO

RE:

KWANG YIN THAM and YA-LI CHEN (Plaintiffs (Respondents)) – and – JOHN LEE, MARY HUANG and HING LOONG INVESTMENTS LIMITED (Defendants (Appellants)

BEFORE:

FELDMAN, SHARPE AND SIMMONS JJ.A.

COUNSEL:

David Dolson

for the appellants John Lee et al.

Allen Rosen

for the respondents Kwang Yin Tham, et al.

HEARD:

March 16, 2007

On appeal from the judgment of Justice E. Eva Frank of the Superior Court of Justice dated August 10, 2006.

E N D O R S E M E N T

[1] The only issue pursued by the appellants at the appeal hearing was whether the motion judge erred in failing to order that the issue of the availability of a set-off for capital gains tax and liability for recapture proceed to trial

[2] We would not give effect to this ground of appeal. At the present time, there is only a potential future liability for capital gains tax and recapture. Accordingly, there are no existing claims capable of giving rise to a set-off. On this basis alone, the appeal must be dismissed. However, we should not be taken as otherwise endorsing all of the findings of the motion judge.

[3] This order is without prejudice to the appellants bringing a claim or counterclaim in respect of the alleged claims for capital gains tax and recapture, commencing a proceeding to attack the assignment of the promissory notes, or re-instating their request under rule 20.08 for a stay of enforcement of the summary judgment on the basis of any such claims, or other similar relief, if so advised.

[4] The appeal is therefore dismissed with costs to the respondents fixed at $7500.00 inclusive of disbursements and applicable G.S.T.

"K. Feldman J.A."

"Robert J. Sharpe J.A."

"Janet Simmons J.A."