Court of Appeal for Ontario
Judges: Sharpe, Lauwers and Miller JJ.A.
Between
Mariner Foods Ltd. Plaintiff/Respondent
and
Leo-Progress Enterprises Inc. Appellant/Defendant
Counsel
Shahzad Siddiqui, for the appellant
Assunta Mazzotta, for the respondent
Hearing and Appeal
Heard: December 23, 2016
On appeal from: the order of Justice Stewart of the Superior Court of Justice, dated November 6, 2015.
Appeal Book Endorsement
1The appellant moves to admit fresh evidence that the respondent was under administration in the UK after the date of the statement of claim and in liquidation after the date of the judgment.
2The appellant submits that the fresh evidence demonstrates that the respondent was not entitled to pursue the claim.
3In our view, it is sufficiently clear from the exhibits to an affidavit filed in support of the motion for summary judgment that this was a subrogated claim brought by the respondent's credit insurer. The claim was accordingly not caught by the bankruptcy. Douglas v. Stan Fergusson Fuels Ltd., 2016 ONSC 442.
4The fresh evidence is therefore not capable of affecting the outcome and the application to admit it is dismissed. There is no other ground of appeal and the appeal is therefore dismissed.
5Costs to the respondent fixed at $5,000, inclusive of disbursements and taxes.