



COURT OF APPEAL FOR ONTARIO

CITATION: Arminak & Associates
    Inc. v. Apollo Health and Beauty Care, 2016 ONCA 278

DATE: 20160418

DOCKET: C61030

Laskin, Lauwers and Hourigan JJ.A.

BETWEEN

Arminak & Associates Inc.

Plaintiff (Respondent)

and

Apollo Health and Beauty Care, Apollo Beauty
    Corp. and Apollo Health Corp.

Defendants (Appellants)

Richard Stephenson and Michael Fenrick, for the
    appellants

James Zibarras and Adam Weissman, for the respondent

Heard and released orally: April 11, 2016

On appeal from the judgment of Justice David L. Corbett
    of the Superior Court of Justice, dated August 1, 2015.

ENDORSEMENT

[1]

The appellants main submission is that the motion judge erred in
    granting summary judgment in the face of a viable set-off defence. They
    buttress this submission with the argument that dismissing the set-off defence,
    yet permitting the counterclaim to proceed was inconsistent.

[2]

We do not accept the appellants submission. The motion judges order is
    an exercise of discretion. He exercised that discretion reasonably. He had
    given the appellants a year to put forward some evidence of their damages claim.
    They did not do so. At best they were left with a punitive damages claim that the
    motion judge thought did not appear to be substantial.

[3]

In the light of the record before him, it was open to the motion judge
    to dismiss the set-off defence while allowing the counterclaim to proceed.
    Without any evidence of the appellants damages, we are not persuaded of any
    inconsistency in the motion judges decision.

[4]

The appeal is therefore dismissed with costs to the respondent in the
    amount of $13,000 inclusive of disbursements and applicable taxes.

John Laskin J.A.

P. Lauwers J.A.

C.W. Hourigan J.A.


