



COURT OF APPEAL FOR ONTARIO

CITATION:
Weslease
    2018 Operating LP v. Eastgate Pharmaceuticals Inc., 2021 ONCA 743

DATE: 20211022

DOCKET: C68859

Feldman, Pepall and Tulloch JJ.A.

BETWEEN

Weslease 2018 Operating LP

Plaintiff (Respondent)

and

Eastgate Pharmaceuticals Inc.,
Proactive Supply
    Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey, Giancarlo Staffieri
and Anna Gluskin

Defendants (Appellants)

Yonatan Lipetz, for the appellants Proactive Supply
    Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey and Giancarlo Staffieri

David Winer, for the respondent

Heard: October 14, 2021 by video conference

On appeal from the judgment of Justice Grant R. Dow of
    the Superior Court of Justice, dated November 2, 2020, with reasons reported at
    2020 ONSC 6464.

REASONS FOR DECISION

[1]

The appellants, Proactive Supply Chain Solutions
    Inc., Salvatore Mancuso, Chris Pearcey, and Giancarlo Staffieri appeal from the
    summary judgment granted against them in favour of the respondent, Weslease
    2018 Operating LP.

[2]

The respondent leased laboratory equipment to
    the appellants pursuant to a lease and general security agreement. The
    appellants defaulted in payment. Relying on its security, the respondent commenced
    proceedings and successfully obtained an order to recover five of seven pieces
    of equipment. A bailiff subsequently repossessed the five pieces of equipment.

[3]

The respondent agreed to sell all seven pieces
    of equipment to a third party purchaser, who paid $60,000. The sale was
    conditional on the respondents ability to deliver the remaining two pieces
    still in the appellants possession, failing which, the $60,000 was to be
    refunded.

[4]

The respondent subsequently brought a motion for
    summary judgment for damages against the appellants, and an order for delivery
    up of the remaining two pieces of equipment. Before the motion judge, the
    appellants argued that they had entered into a settlement agreement with the
    respondent which required dismissal of the respondents motion.

[5]

The motion judge concluded that the parties had
    not entered into a settlement agreement. He granted the relief requested and
    ordered that if the appellants failed to deliver the remaining two pieces of
    equipment, they were to pay the respondent $60,000 on receipt of proof that the
    respondent had refunded that amount to the third party purchaser.

[6]

The appellants advance three grounds of appeal.

[7]

First, they submit that the motion judge made a
    palpable and overriding error in determining that the parties never entered
    into a settlement agreement.

[8]

We disagree.

[9]

The documents relied upon by the appellants were
    conditional on payment of outstanding arrears which never materialized. Neither
    the written nor the oral evidence before the motion judge supported the finding
    of a settlement agreement and he correctly dismissed the appellants arguments
    in that regard.

[10]

Second, the appellants submit that issues of
    credibility amounted to genuine issues requiring a trial and hence summary
    judgment ought not to have been granted. The problem with this argument is that
    the appellants were unable to identify any issues in the evidentiary record
    before the motion judge that engaged relevant competing issues of credibility.

[11]

Third, the appellants submit that the motion
    judge failed to adequately assess damages. The appellants failed to proffer any
    evidence of value that would dictate a different result than that reached by
    the motion judge. We fail to see any merit in the appellants damages argument.


[12]

The appeal is dismissed with costs of $10,000 inclusive of
    disbursements and HST to be paid by the appellants to the respondent.

K. Feldman J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


