CITATION: Canada Forgings Inc. v. Atomic Energy of Canada Limited, 2013 ONSC 6145
HAMILTON COURT FILE NO.: DC-06-23359
DATE: 2013/10/01
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Canada Forgings Inc.
Plaintiff
– and –
Atomic Energy of Canada Limited and Linamar Holdings Inc.
Defendants
Counsel
Geoff R. Hall, and Melissa Arruda, for the Plaintiff
Roger Gillott, Jay Nathwani, for the Defendant/Moving Party
HEARD: September 18, 2013
THE HONOURABLE MR. JUSTICE H. S. ARRELL
JUDGMENT
Introduction:
[1] The defendant Atomic Energy of Canada Limited moves for leave to appeal to the Divisional Court from the ruling of Matheson J., 2013 ONSC 5347, dismissing the defendant’s motion for summary judgment requesting a dismissal of the plaintiff’s claim.
[2] Rule 62.02 of the Rules of Civil Procedure provides,
“(4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.”
Facts:
[3] This matter has been going on for approximately 7 years. Discoveries have not yet been held. A number of interlocutory motions have occurred which appear to have reduced the causes of action from 7 down to 2. Matheson J. dismissed one further cause of action being the claim for defamation which the plaintiffs are not appealing.
[4] The remaining causes of action deal generally with the issue of duty of fairness involving the tendering process along with a limitation defence.
[5] The facts are not relevant for the purposes of this leave motion.
[6] Matheson J. concluded this was a very complex and complicated matter. I agree. There are volumes of material. The summary judgment motion was scheduled for 2 days and took 6.
[7] Matheson J. concluded his reasons for dismissing the defendants motion as follows:
“CONCLUSION
[85] This is a case that requires a court hearing with viva voce evidence, as I have indicated credibility is a major issue.
[86] In hindsight I should have dismissed the motion for summary judgment at the onset of the motion, for the following reasons:
The sheer volume of the material.
The contradictions of the witnesses in their affidavits and examinations, which will require a judge’s determination after hearing from the various witnesses.
The magnitude of the action.
[87] Therefore the motion for summary judgment shall be dismissed, except the plaintiff’s action for defamation, which I dismiss.”
[8] Matheson J. stated the following at paragraph [21] “I realized that it was not going to be a short summary judgment. By the time that I realized this we were into our fourth day. I felt that it was best to forge on.”
[9] At paragraph [45] and [46] the learned motions judge stated the following:
“[45] I, therefore, find that the tendering period had long since passed and that AECL could negotiate with suppliers, without the need of a bid process. Having stated that, I find that there is a duty to act in a fair way. There are arguable issues to be dealt with. Those issues, dealing with the duty of fairness are:
If CanForge was the lowest bidder, why was there no reason given for not asking them to bid a second time?
Did AECL not disclose all the information so that CanForge would have understood why it was not allowed to bid?
I will deal with the issue of defamation later, but I find that there might be a degree of ill will between the parties.
[46] I find that there are issues that would require viva voce evidence on this point, and thus I would not grant summary judgment to AECL on that point.”
Position of the Parties:
[10] AECL urges me to find that Matheson J. made an error in law in paragraph [45] by stating that AECL had a duty to act fairly once he made a finding of fact that the tendering process had long expired.
[11] The plaintiff argues paragraph [45] was obiter and the real ratio of the decision was found at paragraphs [85] and [86] where the learned judge stated that this was not a suitable case for summary judgment and gave the reasons why.
Analysis:
[12] The rule for leave to appeal makes it clear that leave should not be granted unless the criteria in the rule are met. As stated in Bell Express Vu Limited Partnership v. Morgan 2008 63136 (ON SCDC), [2008] O.J. No. 4758 “…the test is an onerous one”. Clearly the onus is on AECL to persuade me that the criteria in the rule for granting leave have been met.
[13] The rule is conjunctive. Both aspects of Rule 62.02(4) either (a) or (b) must be met. Matters of general importance relate to matters of public importance and matters relevant to the development of the law and the administration of justice, not matters that may be of particular importance relevant only to the litigants.
Greslik v. Ontario Legal Aid Plan 1988 4842 (ON SCDC), [1988] O.J. No. 525 at page 3
Rankin v McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2nd) 569
[14] AECL appears to seek leave under both (a) and (b) of the rule. They state there are conflicting decisions to Matheson J.’s statement that the defendant owed a duty of fairness to the plaintiff after concluding the tendering period had long since passed. It cites the following cases as conflicting decisions:
Ontario v. Ron Engineering & Construction (Eastern) Ltd, [1988] 1 S.C.R. 111
Martel Building Ltd. v. Canada, 2000 SCC 60, [2000] 2 S.C.R. 860
[15] AECL must persuade me that this was the ratio of the decision and the sole reason Matheson J. dismissed its motion. As well it must also persuade me that it is desirable that leave to appeal be granted. I am not persuaded on either criterion.
[16] I am of the view that Matheson J. dismissed the motion for the exact reasons he stated that it was not one suitable for summary judgment and gave very cogent reasons as to why not while following the guidance set out in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, [2011] O.J. No. 5431(C.A.); and George Weston Ltd. v Domtar Inc., 2012 ONSC 5001.
[17] His comments about the duty of fairness and when it applied were not determinative of the issue as he set it out in his decision. As stated in Black’s Law Dictionary (ninth edition) obiter dictum is “A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).”
[18] I conclude Matheson J.’s comments regarding duty of fairness in para. 45 of his judgment fall within the definition of obiter as set out in Black’s Law dictionary. Those comments therefore, whether correct or not, are not determinative of the case and not precedential. I conclude as well that for those reasons it is not desirable in my opinion to grant leave to appeal.
[19] I also conclude the applicant must fail under the second arm of the rule. I do not doubt the correctness of the ratio of the decision of Matheson J. where he concluded this is not an appropriate case for a summary judgment motion. His reasons for coming to that conclusion are clear.
[20] It is also clear from reading his decision as a whole that he concluded he did not have “… a full appreciation of the evidence and issues required to make dispositive findings without a trial.” Which is the test under Combined Air Mechanical Inc., supra. I agree.
[21] I also conclude that the applicant has not persuaded me that there is anything particularly important to the public or the development of the law given my finding as to the ratio of Matheson J.’s decision.
[22] This is a case that has languished and suffered from being “motioned to death” rather than being moved forward in a timely and economical manner for the benefit of the parties. It is time that occurred. This is also a case, given its procedural history, that would benefit from judicial case management and I invite the parties to seek that assistance from this court.
Conclusion:
[23] For the reasons given leave to appeal to the Divisional Court is refused.
[24] The parties agreed costs should follow the cause and should be fixed at $12,500.00 inclusive of disbursements and taxes and I so order.
ARRELL, J.
Released: October 1, 2013
CITATION: Canada Forgings Inc. v. Atomic Energy of Canada Limited, 2013 ONSC 6145
HAMILTON COURT FILE NO.: DC-06-23359
DATE: 2013/10/01
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ARRELL, J.
BETWEEN:
CANADA FORGINGS INC.
Plaintiff
- and –
ATOMIC ENERGY OF CANADA LIMITED AND LINAMAR HOLDINGS INC.
Defendants
REASONS FOR JUDGMENT
Released: October 1, 2013