Court of Appeal for Ontario

Citation: Zesta Engineering Ltd. v. Cloutier, 2007 ONCA 471

Date: 20070626

Docket: C46431

Before: Goudge, Armstrong and Blair JJ.A.

Between:

Zesta Engineering Ltd.

Plaintiff (Respondent)

and

David Cloutier, Michael Jefferies, Hi-Cap Technologies, Guiseppe (Joseph) Durante, Keith Sanger, James White, Kelvin Technologies, Inc., Douglas Christie, 798068 Ontario Limited and Derek Peatling

Defendants (Appellant)

And Between:

David Cloutier, Kelvin Technologies Inc. and Giuseppe (Joseph) Durante

Plaintiffs by counterclaim

and

Zesta Engineering Ltd.

Defendant to the counterclaim

Counsel:

David Harris for the appellant David Cloutier and the defendants

Timothy Pinos for the respondent Zesta Engineering Ltd.

Heard: June 25, 2007

On appeal from the judgment of Justice Barbara Conway of the Superior Court of Justice dated December 7, 2006.

APPEAL BOOK ENDORSEMENT

[1] The majority, Blair J.A. dissenting, are of the view that the appeal must be allowed. The admission relied on by the motion judge does not in our view go so far as to admit that the appellant is liable for the full proceeds of the purchase and paid for by Husky of the machines in question. There appear to be material facts in dispute relating to whether Zesta acquired ownership of the machines ultimately purchased by Husky and as to whether Zesta paid Watlow for the machines in the first place. A resolution of both issues is necessary to establish the quantum of Zesta’s loss and therefore the damages owed by the appellant.

[2] Costs of the motion below and of this appeal reserved to the trial judge.