DATE: 20060920

DOCKET: C45321

COURT OF APPEAL FOR ONTARIO

RE:

364511 ONTARIO LIMITED (Plaintiff/Appellant) – and – DARENA HOLDINGS LIMITED, FIRST PROFESSIONAL MANAGEMENT LIMITED, STEPHEN‑MITCHELL REALTY LIMITED, SUNDIAL HOMES (APPELLWOOD) LIMITED, STANJON DEVELOPMENTS LIMITED, LEO J. GOLDHAR, MITCHELL S. GOLDHAR AND STEPHEN GOLDHAR (Defendants/Respondents)

BEFORE:

GILLESE, JURIANSZ and LAFORME JJ.A.

COUNSEL:

John W. McDonald

for the appellant

James Wortzman

for the respondents

HEARD & RELEASED ORALLY:

September 19, 2006

On appeal from the judgment of Justice Edward P. Belobaba of the Superior Court of Justice dated April 7, 2006.

E N D O R S E M E N T

[1] The appellant sued the defendants in an action. It obtained judgment against one of the defendants for the return of deposit monies. In an attempt to realize on the judgment, among other things, the appellant commenced a second action against all the defendants for payment of the judgment. The defendants in the second action brought a motion to strike. Justice Sills found the cause of action was res judicata and barred by action estoppel in respect of all of the defendants. However, the order of Sills J. was made without prejudice to the appellant’s right to serve and file a fresh amended statement of claim.

[2] The appellant filed and served an amended statement of claim in which it sought judgment for the same deposit monies that were the subject matter of the first action. The respondents successfully moved before Belobaba J. for summary judgment in the second action. In support of their motion, the respondents filed five affidavits. The appellant filed no evidence.

[3] In this appeal, the appellant seeks to overturn the order of Belobaba J. for summary judgment.

[4] We would dismiss the appeal. As the appellant filed no evidence, we see no basis for its contention that the motion judge either failed to consider credibility issues or wrongly resolved them. Moreover, we agree with the motion judge that there was no basis for any further litigation as against the respondents: there simply is no genuine issue for trial. There is no evidence of conversion or other improper conduct by the respondents. Indeed, it is arguable that there is no such allegation given that prior to the motion for summary judgment, the appellant withdrew its allegation of fraudulent conveyance.

[5] The appellant’s obligation on a motion for summary judgment is to put its “best foot forward”. The appellant failed to discharge that obligation. It failed to file any evidence setting out facts to show there was genuine issue for trial; it chose not to cross‑examine the deponents of the affidavits filed by the respondents, thereby leaving that evidence uncontradicted and unchallenged; and, in the six years since it commenced the second action, it undertook no examinations for discovery.

[6] The appellant sought to argue the issue of the propriety of the costs award below. Although the notice of appeal states, as a grounds of appeal, that the motion judge failed to properly consider and assess the costs of the motion, this issue was not addressed in the appellant’s factum. We understand the appellant’s argument to be based on a consideration of the quantum of the costs award in the motion for summary judgment relative to the quantum of costs awarded in other motions in this action and to those awarded at the trial of the first action.

[7] In our view, the appellant has failed to demonstrate any basis for interfering with the costs awarded below and we decline to do so. The motion judge considered all of the relevant case law and factors, including the respondents’ offer to settle.

[8] Accordingly, the appeal is dismissed with costs to the respondents fixed at $7,500, all inclusive.

“E. E. Gillese J.A.”

“R. G. Juriansz J.A.”

“H. S. LaForme J.A.”