COURT OF APPEAL FOR ONTARIO

CITATION: Eagle Professional Resources Inc. v. MacMullin, 2013 ONCA 639

DATE: 20131021

DOCKET: C57054

Cronk, Rouleau and Tulloch JJ.A.

BETWEEN

Eagle Professional Resources Inc.

Appellant (Plaintiff)

and

Matt MacMullin, Shane Reiffenstein, Matthew Emberley and Maplesoft Group

Respondents (Defendants)

James C. Morton, for the appellant

George J. Karayannides and Laura Brazil, for the respondents

Heard and released orally: October 15, 2013

On appeal from the judgment of Justice Robert. F. Goldstein of the Superior Court of Justice, dated April 5, 2013.

ENDORSEMENT

[1] The appellant argues that the motion judge erred in allowing the respondents' summary judgment motion and in dismissing the claim.

[2] In the appellant’s submission, the factual issues raised require a trial to be resolved because there is some conflicting evidence and findings of credibility are needed.

[3] We disagree. This was a straightforward case. The appellant’s statement of claim and material filed in response to the motion consisted of bald allegations and related a few specific incidents that raised suspicion as to the possibility that the respondents had acted in breach of their non-competition and non-solicitation obligations.

[4] The appellant’s bald allegations were denied by each of the individual respondents. Each of the specific incidents raised by the appellant was fully explained by the respondents.

[5] The appellant did not cross-examine the respondents or otherwise challenge the explanations they tendered. However, the failure to cross-examine did not mean that there were live issues for trial, despite the appellant’s suggestion to the contrary.

[6] A party responding to a motion for summary judgment must put his best foot forward. In the absence of any challenge by the appellant to the explanations proffered by the respondents, the motion judge was able to decide the motion for summary judgment without having to make any findings of credibility.

[7] The full appreciation test was met without the need for a trial.

[8] For these reasons, the appeal is dismissed.

[9] Costs of the appeal to the respondents fixed in the amount of $10,000, inclusive of disbursements and taxes.

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”

“M.H. Tulloch J.A.”