



COURT OF APPEAL FOR ONTARIO

CITATION:
Can-Home
    Contracting Inc. v. Marel Contractors, 2012 ONCA 715

DATE: 20121024

DOCKET: C55140

Rosenberg, Gillese and Tulloch JJ.A.

BETWEEN

Can-Home Contracting Inc., carrying on business
    as Home Insulation

Plaintiff/Respondent

and

Marel Contractors

Defendant/Appellant

Mark Veneziano and Dena N. Varah, for the appellant

Morris Cooper, for the respondent

Heard and released orally: October 22, 2012

On appeal from the judgment of Justice Paul Perell of the
    Superior Court of Justice, dated February 6, 2012.

ENDORSEMENT

[1]

The only real issue that was raised on this appeal is whether the
    defence of equitable set-off required that the entire matter should proceed to
    trial.

[2]

The motions judge distinguished between the types of services provided,
    which in our view, was a purely factual matter. This was open to the motions
    judge to so find. Indeed, all the appellants internal documents make this
    distinction.

[3]

The matter of the attic insulation does proceed to trial, as does the
    equitable set-off claims against it.

[4]

In our view, there is no error in granting partial summary judgment with
    respect to the spray foam insulation.

[5]

Accordingly, the appeal is dismissed.

[6]

The respondent is entitled to its costs fixed at $5,000.00 inclusive of
    disbursements and H.S.T.

M. Rosenberg J.A.

E.E. Gillese J.A.

M. Tulloch J.A.


