Court File and Parties

Court of Appeal for Ontario Date: 20211022 Docket: C68859

Before: Feldman, Pepall and Tulloch JJ.A.

Between:

Weslease 2018 Operating LP Plaintiff (Respondent)

And:

Eastgate Pharmaceuticals Inc., Proactive Supply Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey, Giancarlo Staffieri and Anna Gluskin Defendants (Appellants)

Counsel: Yonatan Lipetz, for the appellants Proactive Supply Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey and Giancarlo Staffieri David Winer, for the respondent

Heard: October 14, 2021 by video conference

On appeal from the judgment of Justice Grant R. Dow of the Superior Court of Justice, dated November 2, 2020, with reasons reported at 2020 ONSC 6464.

Reasons for Decision

[1] The appellants, Proactive Supply Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey, and Giancarlo Staffieri appeal from the summary judgment granted against them in favour of the respondent, Weslease 2018 Operating LP.

[2] The respondent leased laboratory equipment to the appellants pursuant to a lease and general security agreement. The appellants defaulted in payment. Relying on its security, the respondent commenced proceedings and successfully obtained an order to recover five of seven pieces of equipment. A bailiff subsequently repossessed the five pieces of equipment.

[3] The respondent agreed to sell all seven pieces of equipment to a third party purchaser, who paid $60,000. The sale was conditional on the respondent’s ability to deliver the remaining two pieces still in the appellants’ possession, failing which, the $60,000 was to be refunded.

[4] The respondent subsequently brought a motion for summary judgment for damages against the appellants, and an order for delivery up of the remaining two pieces of equipment. Before the motion judge, the appellants argued that they had entered into a settlement agreement with the respondent which required dismissal of the respondent’s motion.

[5] The motion judge concluded that the parties had not entered into a settlement agreement. He granted the relief requested and ordered that if the appellants failed to deliver the remaining two pieces of equipment, they were to pay the respondent $60,000 on receipt of proof that the respondent had refunded that amount to the third party purchaser.

[6] The appellants advance three grounds of appeal.

[7] First, they submit that the motion judge made a palpable and overriding error in determining that the parties never entered into a settlement agreement.

[8] We disagree.

[9] The documents relied upon by the appellants were conditional on payment of outstanding arrears which never materialized. Neither the written nor the oral evidence before the motion judge supported the finding of a settlement agreement and he correctly dismissed the appellants’ arguments in that regard.

[10] Second, the appellants submit that issues of credibility amounted to genuine issues requiring a trial and hence summary judgment ought not to have been granted. The problem with this argument is that the appellants were unable to identify any issues in the evidentiary record before the motion judge that engaged relevant competing issues of credibility.

[11] Third, the appellants submit that the motion judge failed to adequately assess damages. The appellants failed to proffer any evidence of value that would dictate a different result than that reached by the motion judge. We fail to see any merit in the appellants’ damages argument.

[12] The appeal is dismissed with costs of $10,000 inclusive of disbursements and HST to be paid by the appellants to the respondent.

“K. Feldman J.A.” “S.E. Pepall J.A.” “M. Tulloch J.A.”