Category 5 Imaging and Antoniadis and Clarke Productions, 2012 ONSC 438
CITATION: Category 5 Imaging and Antoniadis and Clarke Productions, 2012 ONSC 438
COURT FILE NO.: 10-17240
DATE: 2012-01-17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CATEGORY 5 IMAGING LTD., Plaintiff
AND:
ANGELO ANTONIADIS and CLARKE PRODUCTIONS (1982) LIMITED, Defendants
AND BETWEEN:
ANGELO ANTONIADIS, Plaintiff by Counterclaim
AND:
CATEGORY 5 IMAGING LTD. and WAYNE NARCISO, Defendants by Counterclaim
BEFORE: The Honourable Mr. Justice D. S. Crane
COUNSEL: Mr. M. Jaeger, Counsel for the Applicant Antoniadis Mr. L. Frapporti, Counsel for the Respondent Category 5 Imaging Ltd. Mr. M. Emery, Counsel for Clarke Productions
HEARD: 22 December, 2011 and reserved for Decision
ENDORSEMENT
CRANE, J.
[1] There are two motions before the court. Clarke Productions delivered a Statement of Defence and Counterclaim to the Statement of Claim of Category 5 in which it seeks payment of three invoices totalling $13,324.50. The invoices represent printing work done by Clarke under subcontract with the plaintiff, Category 5.
[2] The second motion is that of Mr. Antoniadis for summary judgment on a promissory note made by the plaintiff Category 5 payable to the defendant, Antoniadis, providing for payments totalling $144,000 over a period of twelve months. My reasons on this latter motion will be by a separate endorsement.
[3] These reasons respond to the Clarke motion for summary judgment on its counterclaim. On this record, there is no issue that requires a trial. I am satisfied that Clarke Productions provided the work as invoiced, the work was of value to the plaintiff, the plaintiff was paid and that the plaintiff has failed without lawful cause to pay the said invoices of the applicant, Clarke.
[4] Mr. Narciso, the principal in the plaintiff Corporation, has given what I find to be vague and contradicting evidence concerning the largest of the three invoices, that being the Somerville Nurseries invoice of $11,970.
[5] The structure of the Somerville job was as follows: Somerville Nurseries ordered Christmas banners from a corporation known as ZMI. ZMI placed this order with the plaintiff on 21 August, 1009. The plaintiff then provided a purchase order to Clarke dated the 26th August, 2009. Clarke delivered the subject invoice to the plaintiff dated 30 September, 2009 following delivery of the banners on 18 September, 2009. No evidence has been produced from Somerville Nurseries to the effect that the quality of the printing work was not acceptable or that it, for some reason, did not pay the invoice. In particular, there is no evidence from Somerville Nurseries that it received 800 Kris Kringle banners on its order of 400 banners. This is the allegation of Mr. Narciso.
[6] The respondent raises alternative grounds, namely that it is entitled to an equitable set-off and accordingly may hold the sums of $13,324.50 as against its potential damages in the main action claiming the involvement of Clarke Productions with the defendant, Angelo Antoniadis, constituted an unlawful interference with the economic relations of the plaintiff, Category 5. It is evident from the record on these motions that there is much in dispute between Category 5 and Mr. Antoniadis. However, there has been no basis to establish that Clarke Productions should not be paid for the work that it did on sub-contract with the plaintiff in September 2009. I conclude that there is no factual basis to meet the requirements of connectedness for a triable issue of equitable set-off. Reference is made to CIBC World Markets Inc. (CIBC Wood Gundy) v. Burgess, 2009 20342 (ON SC) at paragraphs 25-27.
[7] In the result, the motion is granted. The applicant will have judgment in the sum of $13,324.50 plus prejudgment interest in accordance with the Courts of Justice Act together with its costs of the counter-claim to be fixed after delivery of written submissions.
CRANE, J.
Date: January 17, 2012

