



COURT OF APPEAL FOR ONTARIO

CITATION: Arora Commercial Corporation v.
    975922 Ontario Inc., 2015 ONCA 146

DATE: 20150305

DOCKET: C58761

Laskin, Rouleau and Huscroft JJ.A.

BETWEEN

Arora Commercial Corporation

Plaintiff (Respondent)

and

975922 Ontario Inc. and
    975922 Ontario Limited both operating as Orangeville Womens Health Club, Susan
    Dyment
and Karen Dyment

Defendants (
Appellants
)

P. Kennedy, for the appellants

George Gligoric, for the respondent

Heard and released orally: February 25, 2015

On appeal from the judgment of Justice James A. Ramsay of
    the Superior Court of Justice, dated April 10, 2014.

ENDORSEMENT

[1]

975922 Ontario Inc., 975922 Ontario Limited and Susan Dyment appeal the
    summary judgment dismissing their counter-claim, and the costs of $32,000
    awarded against them.

[2]

The appellants main ground of appeal is that they were denied
    procedural fairness because they were not given notice that Arora was seeking a
    dismissal of the counter-claim. In this court counsel for Arora candidly
    acknowledged that his notice of motion did not ask that the counter-claim be
    dismissed, and in response to a question from the motion judge, advised the
    court he was not seeking that relief.

[3]

Nonetheless, in this court, the respondent attempts to defend the
    judgment dismissing the counter-claim by pointing out that the appellants
    defence and their counterclaim are mirror images of each other in the sense
    that they rest on the same allegation  the alleged misrepresentation made by
    Aroras lawyer.

[4]

Aroras position has some merit, but we think that the absence of fair
    notice is fatal to upholding the dismissal of the counter-claim.  Had the
    appellants known that their counter-claim was in issue on the motion, the
    evidentiary record may well have been different. For that reason, the judgment
    dismissing the counter-claim cannot stand.

[5]

The appellants also ask that enforcement of the judgment against them be
    stayed pending the disposition of their counter-claim. They are not entitled to
    that relief because of the provisions of the lease in which the appellants
    waive any right to set-off.

[6]

Accordingly, the appeal is allowed and para. 2 of the judgment under
    appeal is set aside. We decline to interfere with the $32,000 in costs ordered
    by the motion judge on the ground that those costs reflected the motion for
    summary judgment on which Arora succeeded. In this court the appellants were
    successful and they are entitled to their costs of the appeal, which we fix in
    the agreed on amount of $10,000 inclusive of disbursements and applicable
    taxes.

John
    Laskin J.A.

Paul
    Rouleau J.A.

Grant
    Huscroft J.A.


