Court of Appeal for Ontario

Citation: Wells Fargo Bank, N.A. v. Best Theratronics Ltd., 2014 ONCA 409 Date: 2014-05-20 Docket: C57783

Before: Doherty, Epstein and Benotto JJ.A.

Between:

Wells Fargo Bank, N.A. Plaintiff (Respondent)

and

Best Theratronics Ltd. Defendant (Appellant)

and

Best Medical International, Inc. and Huestis Machine Corporation Applicants (Appellants)

and

Wells Fargo Bank, N.A. Respondent (Respondent)

Counsel: Eli S. Lederman and David Quayat, for the appellants A. Irvin Schein and M. Maurer, for the respondent

Heard and orally released: May 14, 2014

On appeal from the judgment of Justice Pattillo of the Superior Court of Justice, dated September 12, 2013.

Endorsement

[1] This was an appropriate case for summary judgment.

[2] The motion judge was entitled to accept and act on the evidence of the respondent’s expert as to the proper interpretation of the commercial reasonableness standard in the Uniform Commercial Code. The expert was qualified to give the opinion he gave. His opinion did not, in our view, fly in the face of the language of the Uniform Commercial Code, and in particular s. 8.9(a)-607(c). His opinion was consistent with that language: see the motion judge’s reasons at para. 38.

[3] It may be that the language in question was open to another interpretation. However, the appellants chose not to put any expert evidence forward on the motion. The motion judge was entitled to take that fact into account, both in weighing the evidence tendered by the respondent and in considering whether the case was an appropriate case for summary judgment. He did exactly that.

[4] We see no merit to the points made about the expert’s alleged bias and the impact that it should have on his evidence. The motion judge was able to consider the points made about the expert’s alleged bias for what they were worth. Not surprisingly he concluded that there was “no credibility issue” (para. 37) with respect to the expert’s evidence.

[5] In light of our determination that the motion judge properly granted summary judgment on the basis of the material put forward by the respondent, we need not consider his reasons as they relate to the cause of action estoppel issue. The appellants correctly, in our view, accepted that if they did not succeed on the first point, it did not matter whether they succeeded on the second point.

[6] The appeal is dismissed.

[7] On agreement, the respondent will receive costs in the amount of $15,000, inclusive of disbursements and relevant taxes.

“Doherty J.A.”

“Gloria Epstein J.A.”

“M.L. Benotto J.A.”