Court of Appeal for Ontario

Citation: D.D. Acquisitions Ltd. v. 2207889 Ontario Inc., 2011 ONCA 357

Date: 20110505

Docket: C52988

Before: Rosenberg, Simmons and Blair JJ.A.

Between

D.D. Acquisitions Ltd.

Plaintiff (Respondent)

and

2207889 Ontario Inc., 2100883 Ontario Inc., formerly known as D.D. 4210 King Ltd. and Robert Eilers

Defendants (Appellants)

Counsel:

Trent Morris, for the defendants/appellants

John D. Campbell, for the plaintiff/respondent

Heard: May 4, 2011

On appeal from the order of Justice Edward P. Belobaba of the Superior Court of Justice dated October 20, 2010.

APPEAL BOOK ENDORSEMENT

[1] The appellant seeks to set aside the partial summary judgment granted by Belobaba J. on a $400,000 promissory note given by the appellant purchaser to the respondent vendor on the closing of a real estate transaction. The parties’ contract gave the purchaser the right to set-off claims for losses and/or damages incurred as a result of certain breaches by the vendor. In this case, the appellant sought on the motion to set-off six discrete claims against the promissory note. Two were conceded and the motion judge permitted them to go to trial and granted summary judgment on the Note for the balance remaining of $391,620.45 (including interest).

[2] The appellant contends that the motion judge erred in failing to give effect to the set-off claims and by failing to stay collection on the claim on the Note pending disposition of the counterclaim, which is to proceed to trial.

[3] We do not agree.

[4] We observe first, that the motion judge was not asked to dismiss any defence claims and that the motion for summary judgment dismissing the counterclaim was not pursued before Belobaba J.

[5] Secondly, we see no basis for interfering with the motion judge’s findings that there were no genuine issues for trial with respect to the discrete claims argued before him for purposes of set-off. He properly declined to deduct those amounts (except the two conceded items) from the amounts owing on the promissory note for purposes of judgement on that claim.

[6] Finally, we are not prepared to interfere with the motion judge’s decision not to stay enforcement of the promissory note judgment pending trial of the counterclaims, which is proceeding on an expedited basis. While the motion judge did not analyse this question in detail, it is a fair inference from his decision that he considered the particular claims being asserted before him by the appellant to be weak, but was not prepared to preclude the appellant from pursuing them by way of counterclaim – particularly, since he was not being asked to dismiss any claims being asserted in the counterclaim. Given that, together with his finding that there were no genuine issues for trial in fact for the specific claims asserted by the appellant, we see no error in the exercise of his discretion not to stay enforcement of the promissory note pending disposition of the counterclaim.

[7] The appeal is therefore dismissed.

[8] The respondent is entitled to its costs of the appeal, fixed in the agreed amount of $15,000 inclusive of all taxes and disbursements.