Court of Appeal for Ontario

Citation: Poss Design Limited v. Beograd Machine & Tools Co. Ltd., 2015 ONCA 74

Date: 20150202

Docket: C58945

Before: Doherty, Juriansz and Huscroft JJ.A.

Between

Poss Design Limited

Plaintiff

and

Beograd Machine & Tools Co. Ltd., SNBV Inc. d/b/a/ Allmeat Solutions, Radovan Nikolic and Slobodan Nikolic Jr.

Defendants

AND BETWEEN

Beograd Machine & Tools Co. Ltd.

Plaintiff by Counterclaim/ Respondent

and

Poss Design Limited, Kenneth Benjamin Gulak and Sylvie Gulak

Defendants to the Counterclaim/ Appellant Poss Design Limited

Counsel:

Paul V. McCallen and Miranda Spence, for the appellant/plaintiff Poss Design Limited

Milton A. Davis and Samantha Breen, for the respondent/plaintiff by counterclaim

Heard: January 16, 2015

On appeal from the judgment of Justice E.M. Morgan of the Superior Court of Justice, dated May 21, 2014.

APPEAL BOOK ENDORSEMENT

[1] We are in agreement with the motion judge’s reasons for finding there was no arguable issue for trial raised by the equitable set off claims. The requisite close connection between the claims was simply not demonstrated on this evidence.

[2] On the question of legal set off, two of the three claims relied on by the appellant clearly sounded in damages flowing from the alleged deficiencies in product delivered by the respondent. They were not claims for a “debt” or for a liquidated amount readily determinable at the time of the claim. The third claim relied on by the appellant in support of its legal set off claim alleges an overpayment on a contract. However, the motion judge found that this claim was a factually complex one. We read the motion judge as holding that this amount claimed was not for a liquidated amount readily ascertainable at the time of the pleading. We think that finding was open on the record and we cannot say that the motion judge overstepped his fact finding powers on the summary judgment motion.

[3] The motion judge properly found there was no case for trial on the legal set off claim.

[4] The motion judge refused to stay his order pending the resolution of the remaining claims. We see no error in the manner in which he exercised his discretion.

[5] The appeal is dismissed.

[6] Costs to the respondent in the amount of $10,000 inclusive of disbursements and relevant taxes.