Court File and Parties

Citation: R.S.W.H. Vegetable Farmers Inc. v. Bayerische Landesbank Girozentrale, 2010 ONCA 258 Date: 2010-04-08 Docket: C51175 Court of Appeal for Ontario

Before: Gillese, Lang and Rouleau JJ.A.

Between:

R.S.W.H. Vegetable Farmers Inc. and 1427868 Ontario Ltd. Applicants (Appellants)

and

Bayerische Landesbank Girozentrale and Ontario Peninsula Farms Ltd. Respondents (Respondents in Appeal)

Counsel: A. Wilford, for the appellants John S. Kelly, for the respondent Bayerische Landesbank Girozentrale Stuart R. MacKay, for the respondent Ontario Peninsula Farms Ltd.

Heard: April 6, 2010

On appeal from the judgment of Justice Gray of the Superior Court of Justice dated October 13, 2009.

Appeal Book Endorsement

[1] The court found it unnecessary to call on the respondents to the appeal.

[2] Section 1 of the Farm Debt Mediation Act, R.S.C. 1997, c. 21, defines a farmer as “an individual, corporation, cooperative, partnership or other association of persons that is engaged in farming for commercial purposes.”

[3] The application judge found that there was inadequate evidence to satisfy him, on a balance of probabilities, that R.S.W.H. alone, or in conjunction with 1427868 Ontario Ltd., was engaged in farming. This court must defer to that finding absent a palpable and overriding error. We see none. On the contrary, the evidence on the record in relation to this matter is equivocal at best.

[4] We do not accept that the determination on an earlier motion in this proceeding for security for costs renders res judicata the issue of whether R.S.W.H. is a farmer. The motion was directed at resolving the issue of whether security for costs should be ordered. In assessing whether the action was “frivolous and vexatious” for the purposes of s. 56(01) of the Rules of the Court, the motion judge said he was satisfied that R.S.W.H. was a farmer. Understood in context, it will be clear that the question of whether R.S.W.H. was a farmer was not fully argued. We do not view the motion judge as having finally decided the matter of whether R.S.W.H. was a farmer within the meaning of the legislation.

[5] Accordingly, the appeal is dismissed. The cross appellants have elected not to proceed with the cross appeal. We dismiss the cross appeal but do not wish these reasons to be taken as endorsing the reasoning of the application judge in relation to the issue of whether OPF was a good faith purchaser within the meaning of s. 22 of the Act.

[6] Costs are ordered in favour of the Bank fixed at $20,000 and to OPF fixed at $15,000. Both costs figures are inclusive of G.S.T. and disbursements.