COURT OF APPEAL FOR ONTARIO

CITATION: Can-Home Contracting Inc. v. Marel Contractors, 2012 ONCA 715

DATE: 20121024

DOCKET: C55140

Rosenberg, Gillese and Tulloch JJ.A.

BETWEEN

Can-Home Contracting Inc., carrying on business as Home Insulation

Plaintiff/Respondent

and

Marel Contractors

Defendant/Appellant

Mark Veneziano and Dena N. Varah, for the appellant

Morris Cooper, for the respondent

Heard and released orally: October 22, 2012

On appeal from the judgment of Justice Paul Perell of the Superior Court of Justice, dated February 6, 2012.

ENDORSEMENT

[1] The only real issue that was raised on this appeal is whether the defence of equitable set-off required that the entire matter should proceed to trial.

[2] The motions judge distinguished between the types of services provided, which in our view, was a purely factual matter. This was open to the motions judge to so find. Indeed, all the appellant’s internal documents make this distinction.

[3] The matter of the attic insulation does proceed to trial, as does the equitable set-off claims against it.

[4] In our view, there is no error in granting partial summary judgment with respect to the spray foam insulation.

[5] Accordingly, the appeal is dismissed.

[6] The respondent is entitled to its costs fixed at $5,000.00 inclusive of disbursements and H.S.T.

“M. Rosenberg J.A.”

“E.E. Gillese J.A.”

“M. Tulloch J.A.”