1652620 Ontario Inc. v. Cornerstone Builders Ltd.

1652620 Ontario Inc. v. Cornerstone Builders Ltd.

The Court upheld the motion judge’s conclusion that equitable set‑off was not available against a promissory note and that judgment could be entered only for payments then due, but found legal error in failing to provide reasons for refusing a stay and in the motion judge’s procedural handling (keeping alive a finally determined summary judgment and striking pleadings without a strike motion); the appeal was allowed in part, certain struck allegations restored, a stay granted, and costs adjusted.

Citation
2018 ONCA 973
Parties
Respondent (plaintiff): 1652620 Ontario Inc.; Appellant (defendant): Cornerstone Builders Ltd.; Appellant (plaintiff by Counterclaim): Cornerstone Builders Ltd.; Respondent (plaintiff by Counterclaim): Anthony Hanmer; Respondent (plaintiff by Counterclaim): Full Speed Builders Ltd.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
4 December 2018
Procedural Posture
Civil Appeal From Summary Judgment / Court of Appeal Decision on Appeal From Motion Judge's Partial Summary Judgment and Strike‑out Rulings
Outcome
Appeal allowed in part; order below set aside insofar as amended by these reasons; stay of the judgment granted; costs adjusted.
Legal Topics
Promissory Note Enforcement, Equitable Set‑off, Summary Judgment, Strike Out, Stay of Execution, Non‑competition, Fiduciary Duty, Shareholder Agreement
Source Language
English
Contract Equity Civil Procedure Commercial Law Corporate Law Promissory Note Enforcement Equitable Set‑off Summary Judgment +5 more

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Parties

1652620 Ontario Inc.

Respondent (plaintiff)

Cornerstone Builders Ltd.

Appellant (defendant)

Cornerstone Builders Ltd.

Appellant (plaintiff by Counterclaim)

Anthony Hanmer

Respondent (plaintiff by Counterclaim)

Full Speed Builders Ltd.

Respondent (plaintiff by Counterclaim)

Procedural Posture

Civil Appeal From Summary Judgment / Court of Appeal Decision on Appeal From Motion Judge's Partial Summary Judgment and Strike‑out Rulings

Legal Issues

  1. 1 Whether the promissory note creditor could recover amounts due when note was not a demand note and lacked acceleration clause
  2. 2 Whether equitable set‑off is available against a claim on a promissory note (bill of exchange)
  3. 3 Whether the motion judge erred by striking portions of the counterclaim on a summary judgment motion without a strike motion

Ratio Decidendi

The Court upheld the motion judge’s conclusion that equitable set‑off was not available against a promissory note and that judgment could be entered only for payments then due, but found legal error in failing to provide reasons for refusing a stay and in the motion judge’s procedural handling (keeping alive a finally determined summary judgment and striking pleadings without a strike motion); the appeal was allowed in part, certain struck allegations restored, a stay granted, and costs adjusted.

Court Disposition

Appeal allowed in part; order below set aside insofar as amended by these reasons; stay of the judgment granted; costs adjusted.

Orders

  • Order below set aside insofar as amended by these reasons
  • Stay of the judgment granted