COURT OF APPEAL FOR ONTARIO

CITATION: Khabouth v. Nuko Investments Limited, 2013 ONCA 671

DATE: 20131104

DOCKET: C57018

BEFORE: Goudge, Cronk and Pepall

BETWEEN

Charles Khabouth, 1263528 Ontario Limited, 1368701 Ontario Inc. and 1284228 Ontario Inc.

Plaintiffs (Appellants)

and

Nuko Investments Limited

Defendant (Respondent)

COUNSEL:

James A. Wortzman, for the appellants

Sean R. Campbell, for the respondent

Heard and released orally: October 30, 2013

On appeal from the judgment of Justice Beth A. Allen of the Superior Court of Justice, dated April 12, 2013.

ENDORSEMENT

[1] The appellants appeal the March 21, 2013 order of the motion judge in which she granted the respondent’s motion for summary judgment and dismissed the appellants’ claim for rectification. The appellants argue that the motion judge applied the incorrect test for summary judgment, improperly made final determinations of credibility in circumstances where there was credible conflicting and contradictory evidence, and failed to refer to relevant evidence. As a result, the appellants say, the motion judge erred by granting summary judgment.

[2] We would not give effect to these arguments.

[3] In our view, on this record, the motion judge was positioned to have a full appreciation of the evidence and issues required to make dispositive findings.

[4] The appellants argue that the motion judge misconceived her role on a summary judgment motion and misapplied the applicable test for summary judgment as set out in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1.

[5] We disagree. While, unfortunately, the motion judge did sometimes use language indicative of the test applicable at trial for proof of a rectification claim, her reasons confirm that, in the end, she correctly directed herself to whether the record before her raised a genuine issue requiring a trial: see, especially, para. 37 of her reasons. It was the answer to this question that ultimately led the motion judge to grant summary judgment.

[6] Importantly, this was not simply a credibility case, which may have required a trial. In responding to the summary judgment motion, the appellants were required to put their best foot forward. The documentary record before the motion judge confirmed that, taking the appellants’ case at its highest, the requirements for rectification could not be met. See Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club, 2002 SCC 19, [2002] 1 S.C.R. 678. This was dispositive of the summary judgment motion.

[7] Accordingly, for the reasons given, the appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed in the amount of $12,000, inclusive of disbursements and all applicable taxes.

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”