Court of Appeal for Ontario

Date: 2017-11-20 Docket: C63170

Judges: Cronk, Pardu and Huscroft JJ.A.

Between

Bassett & Walker International Inc. Appellant

and

Solea International BVBA Respondent

Counsel

Geoff R. Hall and Atrisha Lewis, for the appellant

Timothy J. Law and Assunta Mazzotta, for the respondent

Heard: November 16, 2017

On appeal from: the judgment of Justice Andra Pollak of the Superior Court of Justice, dated December 7, 2016.

Reasons for Decision

[1] This appeal involves a dispute regarding the appellant's purchase of frozen shrimp from the respondent. The respondent, a trader of seafood products, purchased the shrimp from an Ecuadorian supplier for shipment to the appellant, a Toronto-based company, via an Ecuadorian shipping line for delivery to a port in Mexico where the goods were to clear Mexican customs. Some of the documents pertaining to the sale stipulate that Belgian law applies to disputes arising out of the "contract". Others contain no governing law provisions.

[2] The appellant appeals from a summary judgment holding it liable to the respondent for the full unpaid purchase price for the shrimp ($228,604.50 US), plus prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.

[3] The parties appear to have assumed that the contract was governed by domestic Ontario law. No issue as to the law governing the contract was raised before the motion judge. No doubt for that reason, the motion judge proceeded to determine the appellant's liability as if it was governed by the common law of Ontario.

[4] It is unclear as to how the issue of the appellant's alleged liability for the outstanding purchase price for the shrimp could be determined without first ascertaining the proper law of the contract – in particular, whether the International Sale of Goods Act, R.S.O. 1990, c. I.10 and the United Nations Convention on Contracts for the International Sales of Goods, set out in the Schedule to the Act, apply in the circumstances of this case and, if so, to what effect.

[5] We note that Ontario, Belgium, Mexico and Ecuador have all ratified and acceded to the Convention. The Convention applies to contracts of the sale of goods – with certain exemptions – where, as here, the parties have places of business in different contracting states.

[6] Before this court, the parties now acknowledge that the Convention applies to the contract at issue.

[7] The question of the proper law of the contract is thus a threshold issue. The matter not having been raised before or considered by the motion judge, we cannot be certain that her analysis of the issues in contention and her conclusions on those issues might not have been different had the proper law of the contract and its application here been fully argued before her.

[8] In these circumstances, the summary judgment cannot stand.

[9] The appeal is allowed, the summary judgment is set aside and the matter is remitted to the motion judge for a new hearing on the parties' competing summary judgment motions. At that new hearing, the parties may supplement the record, if so advised, to address the question of the proper law of the contract and its application to the facts of this case, in accordance with any directions as may be provided by the motion judge.

[10] As the parties accept, this is not an appropriate case for an award of the costs of the appeal and cross-appeal.

"E.A. Cronk J.A."

"G. Pardu J.A."

"Grant Huscroft J.A."