COURT OF APPEAL FOR ONTARIO

CITATION: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONCA 878

DATE: 20141205

DOCKET: C58523

Laskin, Blair and Pepall JJ.A.

BETWEEN

Sweda Farms Ltd., Best Choice Eggs Ltd., and Tilia Transport Inc.

Plaintiffs (Appellants)

and

Egg Farmers of Ontario, Harry Pelissero, Burnbrae Farms Limited, Burnbrae Holdings Inc., Maple Lynn Foods Limited, L.H. Gray & Son Limited, William Harding Gray, John Klei, and the Estate of Johannes Klei

Defendants (Respondents)

Donald Good and Christopher Olutola, for the appellants

P. David McCutcheon and Chole Snider, for the respondents

Heard and released orally: December 1, 2014

On appeal from the judgment of Justice David L. Corbett of the Superior Court of Justice, dated February 24, 2014.

ENDORSEMENT

The Fresh Evidence Motion

[1]          In accordance with the order of LaForme J.A. the appellant sought leave to introduce fresh evidence, consisting of the affidavits of Messrs. Lind and Bourdeau, and numerous additional documents.  We dismiss the motion.  As Mr. Good candidly acknowledged, the proposed fresh evidence does not meet the test set out by this court for the admission of fresh evidence on appeal. Moreover, the proposed evidence is not needed to argue the appeal.  Accordingly, it is not in the interests of justice to admit the evidence.

The Main Appeal

[2]          On the main appeal, the appellants’ principal submission is that the granting of summary judgment is premature. In counsel’s words, repeated several times during oral argument, the motion judge had only two percent of the evidence. 

[3]          We do not accept the appellants’ submission.  The motion judge gave thorough and careful reasons for his decision.  He applied both the test for summary judgment set out by this court in Combined Air, and by the Supreme Court of Canada in Hryniak. 

[4]          Burnbrae delivered an affidavit of documents in May 2012.  The summary judgment motion was not argued until 17 months later in October 2013.  If the appellants’ complaint was that Burnbrae had not complied with its disclosure obligations, then the appellants were obliged to take steps to compel production. They did not do so.  Accordingly, they did not meet their obligation to put their best foot forward on the motion. 

[5]          Even though the appellants did not do so however, the motion judge considered the areas of “missing evidence” and concluded for three reasons that this missing evidence was unlikely to assist the appellants. 

1. The so-called missing evidence was largely connected to L.H. Gray not Burnbrae;

2. There was no reason to believe that the egg-grading records sent to Sweda were any different from those Burnbrae sent to other egg producers; and

3. The motion judge was not prepared to infer that the “missing production” from Burnbrae would establish anything material that was not already in evidence.

We see no error in the motion judge’s finding on the alleged missing evidence or his reasons for that finding.

[6]          Finally, as the motion judge observed, the appellants did not even put forward evidence of those aspects of their claim within their own knowledge. 

[7]          Accordingly, the main appeal is dismissed.

Costs

[8]          The appellants seek leave to appeal the motion judge’s costs order.  He fixed costs in an amount that he considered reasonable.  In the light of the way this litigation has been conducted (see para. 15 of the motion judge’s endorsement on costs), we see no error in the exercise of his discretion.  Accordingly, leave to appeal costs is refused.

Conclusion

[9]          The appeal and the two leave motions are dismissed with costs, inclusive of disbursements and applicable taxes, fixed at $85,000.

“John Laskin J.A.”

“R.A. Blair J.A.”

“S.E. Pepall J.A.”