Court File and Parties

CITATION: Philo Investments (2008) Limited v. ICC Global Acquisitions Limited, 2010 ONCA 159

DATE: 20100304

DOCKET: C50578

COURT OF APPEAL FOR ONTARIO

Laskin, Sharpe and Epstein JJ.A.

BETWEEN

Philo Investments (2008) Limited

Applicant (Respondent)

and

ICC Global Acquisitions Limited and ICC Global Group of Companies Inc.

Respondents (Appellants)

Counsel:

Richard Macklin and Ed Hiutin, for the appellants

John Lo Faso and D. Anthony, for the respondent

Heard and released orally: February 9, 2010

On appeal from the judgment of Justice George Strathy of the Superior Court of Justice, dated May 12, 2009.

ENDORSEMENT

[1] The appellants raise two issues. First they say that there is a factual dispute on whether the option was exercised. That factual dispute they contend disentitles the respondent to judgment on a summary application. We do not accept this argument.

[2] We think it highly unlikely that the respondent intended to exercise the option. He likely just signed the notice as one of the closing documents. However, even if there is a factual dispute on whether the option was exercised, we agree with para. 2 of Justice Strathy’s endorsement that this dispute does not provide a defence to the claim on the debenture. Even the principals of the appellants acknowledge that there is no document to support their position. On our reading of the documents, the debenture creates a stand-alone debt and nothing in the option agreement affects its enforceability.

[3] Second, the appellants say that whether equitable set-off is available raises a triable issue. Again, we disagree. The appellants point to alleged misrepresentations about the profitability of ACT to support their claim. However, we agree with para. 8 of Justice Strathy’s endorsement that these alleged misrepresentations do not go to the root of the respondent’s claim. Finally, we do not consider it would be just to stay judgment on the debenture pending any claim by the appellants.

[4] Accordingly, the appeal is dismissed with costs fixed at $10,000, all inclusive.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“Gloria Epstein J.A.”