CITATION: Clearview Nursery Ltd. (Clearview Nursery & Landscape Supplies) v. Pine Valley Developments Corporation, 2010 ONCA 829

DATE: 20101206

DOCKET: C52258

COURT OF APPEAL FOR ONTARIO

Goudge, Gillese and Lang JJ.A.

BETWEEN

Clearview Nursery Ltd. c.o.b. as Clearview Nursery & Landscape Supplies

Plaintiff (Respondent)

and

Pine Valley Developments Corporation and Rui Pereira

Defendants (Appellants)

AND BETWEEN

Pine Valley Developments Corporation

Plaintiff by Counterclaim

and

Clearview Nursery Ltd. c.o.b. as Clearview Nursery & Landscape Supplies and Ken Marsh

Defendants by Counterclaim

Christos Papadopoulos and Adam Wainstock, for the appellants

Simon Morris, for the respondent

Heard: December 3, 2010

On appeal from the judgment of Justice Sandra Chapnik of the Superior Court of Justice dated May 14, 2010.

APPEAL BOOK ENDORSEMENT

[1] In our view the motion judge correctly found no trial was required for the delivered goods that are the subject of the claim. The appellant acknowledges that it has no evidence that the goods were not delivered to it. Its counterclaim involves other goods that the appellant did pay for and its allegations there have yet to be tried. There is no reason to set aside the judgment for the amount claimed. Nor do we see any basis to reduce the rate of interest agreed to in the commercial arrangement between the parties or to stay the judgment on the claim.

[2] The appeal is dismissed. Costs to the respondent fixed at $7500 all inclusive.