





CITATION:
D.D. Acquisitions
          Ltd. v. 2207889 Ontario Inc., 2011 ONCA 357



DATE: 20110505



DOCKET: C52988



COURT OF APPEAL FOR ONTARIO



Rosenberg, Simmons and Blair JJ.A.



BETWEEN



D.D. Acquisitions Ltd.



Plaintiff (Respondent)



and



2207889
          Ontario Inc., 2100883 Ontario Inc.,

formerly known as D.D. 4210 King Ltd. and Robert
          Eilers



Defendants (Appellants)



Trent Morris, for the defendants/appellants



John D. Campbell, for the plaintiff/respondent



Heard: May 4, 2011



On appeal from the order of Justice Edward P. Belobaba of the
          Superior Court of Justice dated October 20, 2010.



APPEAL BOOK ENDORSEMENT



[1]

The appellant seeks to set aside the partial summary judgment granted by
    Belobaba J. on a $400,000 promissory note given by the appellant purchaser to
    the respondent vendor on the closing of a real estate transaction.  The
    parties contract gave the purchaser the right to set-off claims for losses
    and/or damages incurred as a result of certain breaches by the vendor.  In this
    case, the appellant sought on the motion to set-off six discrete claims against
    the promissory note.  Two were conceded and the motion judge permitted them to
    go to trial and granted summary judgment on the Note for the balance remaining
    of $391,620.45 (including interest).

[2]

The appellant contends that the motion judge erred in failing to give
    effect to the set-off claims and by failing to stay collection on the claim on
    the Note pending disposition of the counterclaim, which is to proceed to trial.

[3]

We do not agree.

[4]

We observe first, that the motion judge was not asked to dismiss any
    defence claims and that the motion for summary judgment dismissing the
    counterclaim was not pursued before Belobaba J.

[5]

Secondly, we see no basis for interfering with the motion judges
    findings that there were no genuine issues for trial with respect to the
    discrete claims argued before him for purposes of set-off.  He properly
    declined to deduct those amounts (except the two conceded items) from the
    amounts owing on the promissory note for purposes of judgement on that claim.

[6]

Finally, we are not prepared to interfere with the motion judges
    decision not to stay enforcement of the promissory note judgment pending trial
    of the counterclaims, which is proceeding on an expedited basis.  While the
    motion judge did not analyse this question in detail, it is a fair inference
    from his decision that he considered the particular claims being asserted
    before him by the appellant to be weak, but was not prepared to preclude the
    appellant from pursuing them by way of counterclaim  particularly, since he
    was not being asked to dismiss any claims being asserted in the counterclaim. 
    Given that, together with his finding that there were no genuine issues for
    trial in fact for the specific claims asserted by the appellant, we see no
    error in the exercise of his discretion not to stay enforcement of the
    promissory note pending disposition of the counterclaim.

[7]

The appeal is therefore dismissed.

[8]

The respondent is entitled to its costs of the appeal, fixed in the
    agreed amount of $15,000 inclusive of all taxes and disbursements.


