Balilty v. Commercial Aluminum Solutions Inc.

Balilty v. Commercial Aluminum Solutions Inc.

The appeal was dismissed because equitable set-off is not available against a claim on a promissory note for the reasons applied to bills of exchange, and because the appellant's separate action against a different party cannot give rise to rights against the respondent nor justify a stay under Rule 20.08; accordingly the funds held in escrow must be paid to the respondent and costs awarded to the respondent.

Citation
C41764
Parties
Plaintiff/respondent: Ilana Balilty; Defendant/appellant: Commercial Aluminum Solutions Inc.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
15 October 2004
Procedural Posture
Civil / Appeal
Outcome
Appeal dismissed
Legal Topics
Promissory Note, Equitable Set Off, Bills of Exchange, Stay of Proceedings, Costs
Source Language
English
Negotiable Instruments Civil Procedure Commercial Law Promissory Note Equitable Set Off Bills of Exchange Stay of Proceedings Costs

Case Brief

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Parties

Ilana Balilty

Plaintiff/respondent

Commercial Aluminum Solutions Inc.

Defendant/appellant

Procedural Posture

Civil / Appeal

Legal Issues

  1. 1 Whether the doctrine of equitable set-off applies to a claim founded on a promissory note
  2. 2 Whether Rule 20.08 of the Rules of Civil Procedure permits a stay or determination based on a separate action against a different party
  3. 3 Whether the appellant's defence and counterclaim were valid in relation to the respondent's claim under the promissory note

Ratio Decidendi

The appeal was dismissed because equitable set-off is not available against a claim on a promissory note for the reasons applied to bills of exchange, and because the appellant's separate action against a different party cannot give rise to rights against the respondent nor justify a stay under Rule 20.08; accordingly the funds held in escrow must be paid to the respondent and costs awarded to the respondent.

Court Disposition

Appeal dismissed

Orders

  • Funds held in escrow by the appellant's solicitors to be paid to the respondent
  • Costs to the respondent on a partial indemnity basis fixed at 4283.00 inclusive of disbursements and GST