



COURT OF APPEAL FOR ONTARIO

CITATION: Poss Design Limited v. Beograd Machine
    & Tools Co. Ltd., 2015 ONCA 74

DATE: 20150202

DOCKET: C58945

Doherty, Juriansz and Huscroft JJ.A.

BETWEEN

Poss Design Limited

Plaintiff

and

Beograd
    Machine & Tools Co. Ltd.,

SNBV
    Inc. d/b/a/ Allmeat Solutions,

Radovan
    Nikolic and Slobodan Nikolic Jr.

Defendants

AND BETWEEN

Beograd Machine &
    Tools Co. Ltd.

Plaintiff by
    Counterclaim/

Respondent

and

Poss
    Design Limited, Kenneth Benjamin Gulak

and
    Sylvie Gulak

Defendants to the
    Counterclaim/

Appellant Poss Design
    Limited

Paul V. McCallen and Miranda Spence, for the
    appellant/plaintiff Poss Design Limited

Milton A. Davis and Samantha Breen, for the respondent/plaintiff
    by counterclaim

Heard: January 16, 2015

On appeal from the judgment of Justice E.M. Morgan of the
    Superior Court of Justice, dated May 21, 2014.

APPEAL BOOK ENDORSEMENT

[1]

We are in agreement with the motion judges reasons for finding there
    was no arguable issue for trial raised by the equitable set off claims.  The
    requisite close connection between the claims was simply not demonstrated on
    this evidence.

[2]

On the question of legal set off, two of the three claims relied on by
    the appellant clearly sounded in damages flowing from the alleged deficiencies
    in product delivered by the respondent.  They were not claims for a debt or
    for a liquidated amount readily determinable at the time of the claim.  The
    third claim relied on by the appellant in support of its legal set off claim
    alleges an overpayment on a contract.  However, the motion judge found that
    this claim was a factually complex one.  We read the motion judge as holding
    that this amount claimed was not for a liquidated amount readily ascertainable
    at the time of the pleading.  We think that finding was open on the record and
    we cannot say that the motion judge overstepped his fact finding powers on the
    summary judgment motion.

[3]

The motion judge properly found there was no case for trial on the legal
    set off claim.

[4]

The motion judge refused to stay his order pending the resolution of the
    remaining claims.  We see no error in the manner in which he exercised his
    discretion.

[5]

The appeal is dismissed.

[6]

Costs to the respondent in the amount of $10,000 inclusive of
    disbursements and relevant taxes.


