Court File and Parties

CITATION: Geodis Wilson Canada Ltd. v. J & B Furniture Inc., 2011 ONCA 678

DATE: 20111031

DOCKET: C53579

COURT OF APPEAL FOR ONTARIO

Blair and Juriansz JJ.A. and Pepall J. (ad hoc)

BETWEEN

Geodis Wilson Canada Ltd.

Plaintiff (Respondent)

and

J & B Furniture Inc.

Defendant (Appellant)

Patrick Di Monte, for the appellant

Christopher Afonso, for the respondent

Heard: October 27, 2011

On appeal from the order of Justice P. Theodore Matlow of the Superior Court of Justice dated March 16, 2011.

APPEAL BOOK ENDORSEMENT

[1] Both parties agree that the motion judge erred in granting a partial award for storage and detention/demurrage charges in an arbitrary amount that appears to have no basis in the record and in sending the balance of the storage/detention/demurrage charges dispute to trial. The appeal is therefore allowed and that portion of the summary judgment is set aside.

[2] The real debate is over what flows from that decision. The appellant submits that the entire matter of the disputed changes should be sent to trial. Geodis Wilson cross-appeals arguing that it should be entitled to summary judgment for the full amount of the disputed charge claimed. We agree with Geodis Wilson.

[3] On the materials before us, the defence raised before the motion judge was that Geodis Wilson was not entitled to claim the disputed charges at all. The reasonableness of the quantum of the claim or the fact that the plaintiff had not proved its invoices are not put in play on the record. The defendant is obliged “to put its best foot forward” on a motion for summary judgment and in our view the appellant has failed to do so here. Once it has been establish that Geodis Wilson was entitled to a lien – as the motion judge found – the disputed charges followed and in the absence of an evidentiary basis as to dispute or to quantum, we see no triable issue with respect to the disputed charges.

[4] The cross-appeal is allowed and Goedis Wilson is entitled to judgment in the full amount claimed for unpaid storage and detention/demurrage charges. We note that the cross-appeal was heard pursuant to s. 6(2) of the Courts of Justice Act.

[5] Costs to Geodis Wilson fixed in the amount of $3000 all inclusive, as agreed.