COURT OF APPEAL FOR ONTARIO

DATE: 20010514

DOCKET: C34411

RE: STANLEY M. GARDEN (Plaintiff/Appellant) –and– APOTEX INC., MINTO YORKVILLE INC., 1149362 ONTARIO LIMITED, SHERFAM INC., BARRY SHERMAN (Defendants/Respondents)

BEFORE: FINLAYSON, CHARRON and ROSENBERG JJ.A.

COUNSEL: Maurice J. Neirinck and Michael G. McQuade, for the appellant

Irving Marks and David Taub, for the respondents

HEARD: May 7, 2001

RELEASED ORALLY: May 7, 2001

On appeal from the order of Justice Katherine E. Swinton dated May 5, 2000.

E N D O R S E M E N T

[1] The plaintiff, Stanley M. Garden (“Garden”), appeals from the order of the Honourable Madam Justice Swinton granting the motion for summary judgment brought by the defendants, Apotex Inc. (“Apotex”), Minto Yorkville Inc. (“Minto”), 1149362 Ontario Limited (“1149362”), Sherfam Inc. (“Sherfam”), and Barry Sherman (“Sherman”).

[2] The action arose out of the purchase by 1149362 of a property located at 4 Prince Arthur Avenue, 30‑54 Avenue Road and 5‑7 Lowther Avenue, in the City of Toronto (the “Property”), and the subsequent sale of the Property to Minto.

[3] On November 23, 1995, Garden entered into an agreement with Sherman, who was acting on behalf of Apotex, which the appellant alleges included both a written agreement as well as other oral terms (the “Agreement”). Under the Agreement, in return for Garden’s release of his rights to or in the Property, Apotex consented to pay for the purchase and development of the Property, and to allow Garden to develop and manage the Property with Apotex financing subject to the discretion of Apotex. According to the appellant, Apotex subsequently purchased the Property but refused to allow Garden to develop it, later selling the Property to Minto. Garden sued the defendants for, inter alia, breach of contract, misrepresentation, deceit, wrongful dismissal, breach of fiduciary duty, conspiracy and intentional interference with economic relations.

[4] The defendants brought a motion for summary judgment and on May 5, 2000, Swinton J. dismissed all of Garden’s claims, except for the claim for wrongful dismissal as against Apotex and as against 1149362.

[5] In our opinion this was not a proper case for resolution by summary judgment motion. This matter involves an assessment of the conflicting evidence of Garden and Sherman. At the heart of the controversy is the question of whether Sherman acted in good faith when he terminated the Agreement in order to pave the way for the subsequent sale of the Property to Minto. Swinton J. conducted an analysis into this critical question, but, in so doing, she was obliged to make findings of fact, weigh conflicting evidence and at least implicitly resolve issues of credibility, none of which are properly done on a motion for summary judgment. This case involved a number of causes of action that could not be resolved without first making the kind of findings that were made by Swinton J., but in doing so, regrettably she performed functions outside the capacity of a motions judge and acted more like a trial judge. The appellant is correct that she presided over a paper trial.

[6] Accordingly, the appeal is allowed and the cross-appeal is dismissed. The order of Swinton J. is set aside and replaced by an order that the motion for summary judgment is dismissed. The appellant is entitled to his costs before Swinton J. on a solicitor-and-client basis pursuant to Rule 20.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Further, the appellant is entitled to his costs of the appeal and cross-appeal in this court on a party-and-party basis.

Signed: “G.D. Finlayson J.A.”

“Louise Charron J.A.”

“M. Rosenberg J.A.”