Court File and Parties

Citation: McNevan v. Agrico Canada Limited, 2011 ONCA 720

Date: 20111130

Docket: C53654

Court of Appeal for Ontario

Before: O’Connor A.C.J.O., LaForme J.A. and Cunningham A.C.J. (ad hoc)

Between

Dave McNevan

Plaintiff (Appellant)

and

Agrico Canada Limited

Defendant (Respondent)

and

Masterfeeds Inc.

Third Party

Counsel:

Donald R. Good, for the plaintiff (appellant)

Tara M. Sweeney, for the defendant (respondent)

Heard and released orally: November 10, 2011

On appeal from the judgment of Justice Toscano Roccamo of the Superior Court of Justice dated April 4, 2011.

Endorsement

[1] On a motion for summary judgment, the motion judge dismissed the appellant’s action. The appellant, a farmer, claimed that the respondent had supplied animal feed that caused death and illness to some of his livestock.

[2] In her reasons, the motion judge said that after the appellant learned of the respondent’s intention to proceed with the summary judgment, he elected to allow the motion to go ahead. The appellant did not seek to adjourn the motion. Thus, the motion proceeded without discoveries and without the appellant filing an expert report. The appellant did not cross-examine the respondent’s affiant.

[3] It is well settled that a respondent to a summary judgment motion has an obligation to put his or her best foot forward and that having done so, a summary judgment motion judge may proceed on the record filed.

[4] The motion judge found correctly, in our view, that the evidence relied upon by the respondent did not raise any issues that required a trial. Her reasons demonstrate that she considered the evidence of both parties and noted that the appellant failed to present evidence that met his evidentiary burden to meet the respondent’s case.

[5] The appellant misapprehends the motion judge’s reasons and findings. The issue was not that the motion judge found that the respondent’s evidence was more credible or convincing than the appellant’s. Rather, it was that on the key issues, the quality of the feed and the cause of the deaths and illnesses of the animals, the respondent presented evidence while the appellant did not. In the end, the motion judge applied the correct legal test and her reasons demonstrate that she fairly considered the appellant’s affidavit evidence. There is no reason to interfere with her decision, particularly where, on this appeal, there is no evidence that her conclusions were unreasonable or that she misapprehended facts.

[6] The appeal must be dismissed. Costs awarded to the respondent in the amount of $8,998.15, inclusive of disbursements and all applicable taxes.

“Dennis O’Connor A.C.J.O.”

“H.S. LaForme J.A.”

“J.D. Cunningham A.C.J.S.C.J.”