Court File and Parties

CITATION: Fairbanx Corporation v. Global Document Solutions Inc., 2007 ONCA 889

DATE: 20071218

DOCKET: C47500 & C47501

COURT OF APPEAL FOR ONTARIO

BORINS, FELDMAN and ARMSTRONG JJ.A.

BETWEEN:

FAIRBANX CORPORATION

Plaintiff/Respondent

and

GLOBAL DOCUMENT SOLUTIONS INC., DOERING & BROWN INC., MARK WELFRED and LISA WELFRED

Defendants/Appellants

Counsel:

Mark Welfred, appearing in person, and on behalf of the appellants

Shawn Tock for the respondent

Heard: December 14, 2007

On appeal from the judgment of Justice William P. Somers of the Superior Court of Justice dated June 22, 2007.

APPEAL BOOK ENDORSEMENT

[1] This is an appeal from two motions for summary judgment under Rule 76 that were heard together. In our view, the motion judge committed two errors. He failed to explain how he was able to award summary judgment given the respondent’s conflicting evidence of the amount that it claimed from the appellant without cross-examination. In addition, he ignored the affidavit in response by Mark Welfred that took issue with the respondent’s accounting. In our view, under Rule 76 it was unfair and unjust to award summary judgment. We would allow the appeal, set aside the judgment and send the case to trial.

[2] The appellants are entitled to their costs of the motions fixed at $3,500 and costs of the appeal fixed at $2,500, both inclusive of disbursements and G.S.T.