Court of Appeal for Ontario

CITATION: Arminak & Associates Inc. v. Apollo Health and Beauty Care, 2016 ONCA 278

DATE: 20160418

DOCKET: C61030

BEFORE: Laskin, Lauwers and Hourigan JJ.A.

BETWEEN

Arminak & Associates Inc.

Plaintiff (Respondent)

and

Apollo Health and Beauty Care, Apollo Beauty Corp. and Apollo Health Corp.

Defendants (Appellants)

COUNSEL:

Richard Stephenson and Michael Fenrick, for the appellants

James Zibarras and Adam Weissman, for the respondent

Heard and released orally: April 11, 2016

On appeal from the judgment of Justice David L. Corbett of the Superior Court of Justice, dated August 1, 2015.

ENDORSEMENT

[1] The appellants’ main submission is that the motion judge erred in granting summary judgment in the face of a viable set-off defence. They buttress this submission with the argument that dismissing the set-off defence, yet permitting the counterclaim to proceed was inconsistent.

[2] We do not accept the appellants’ submission. The motion judge’s order is an exercise of discretion. He exercised that discretion reasonably. He had given the appellants a year to put forward some evidence of their damages claim. They did not do so. At best they were left with a punitive damages claim that the motion judge thought did not appear to be substantial.

[3] In the light of the record before him, it was open to the motion judge to dismiss the set-off defence while allowing the counterclaim to proceed. Without any evidence of the appellants’ damages, we are not persuaded of any inconsistency in the motion judge’s decision.

[4] The appeal is therefore dismissed with costs to the respondent in the amount of $13,000 inclusive of disbursements and applicable taxes.

“John Laskin J.A.”

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”