COURT OF APPEAL FOR ONTARIO

CITATION: Struik v. Dixie Lee Food Systems Ltd., 2014 ONCA 433

DATE: 20140529

DOCKET: C57825

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

Maria Struik

Plaintiff (Respondent)

and

Dixie Lee Food Systems Ltd., Dixie Lee of Canada Inc., Dixie Lee Capital Corporation, and Joseph Murano

Defendants (Appellants)

Counsel:

Raman Dhillon, for the defendants (appellants)

Robert J. Reynolds, for the plaintiff (respondent)

Heard and orally released: May 23, 2014

On appeal from the judgment of Justice Varpio of the Superior Court of Justice, dated September 30, 2013.

ENDORSEMENT

[1] There were essentially two issues on the motion for partial summary judgment which gives rise to this appeal. One issue was referred to as the “guarantee” issue and the other as the “priority” issue. The motion judge decided both in favour of the respondent.

[2] Counsel for the appellant points to two findings of fact that she says were necessary to the resolution of the two issues outlined above. Counsel argues that neither finding was appropriately made within the confines of a Rule 20 motion.

[3] We disagree.

[4] On the first factual finding – the timing of the appellant’s transfer of certain franchises – the trial judge found that the transfer occurred in January 2012 as represented in the documents effecting the transfer. In making that finding, the motion judge considered and rejected the appellant’s bald assertion that the transfer had in fact been made years earlier: see paras. 31-33.

[5] In our view, a finding of fact based on unambiguous documents, most of which were authored by the appellant or on his behalf, is an appropriate exercise of the motion judge’s powers under Rule 20, especially in the absence of any explanation for the obvious conflict between those documents and the appellant’s current version of events. We note that the appellant declined the motion judge’s invitation to adjourn the motion so that he could file material said to exist that would support his position on this point.

[6] The second finding of fact – that Systems and Capital were related companies, thus making both liable on the guarantee provision in the settlement agreement, was based on uncontradicted and overwhelming evidence: see paras. 34-35. We see no reason to interfere with this finding.

[7] In our view, the findings made by the motion judge were properly made on a Rule 20 motion and his determination on the motion for partial summary judgment cannot be disturbed on appeal.

[8] The motion judge also dismissed a cross-motion brought by the appellant in which the appellant argued that the settlement agreement, when properly interpreted, did not permit the respondent, upon a breach of the agreement by the appellant, to both exercise her right to take an assignment of certain other franchises and obtain a court order requiring continued payment of the amounts proscribed under the settlement agreement.

[9] In dismissing the cross-motion, the motion judge read and interpreted the agreement according to its terms and in the context of the events as described in the material before him. We see no error in his determination that he could properly engage in this interpretative exercise on a summary judgment motion. We also agree with his interpretation of the remedial provisions in the settlement agreement. Even if “commercial unreasonableness” could somehow provide a basis for interpreting an agreement in a manner that contradicted the plain meaning of the agreement, we see nothing commercially unreasonable in a party bargaining for multiple remedies upon the default by the other party to the agreement.

[10] The appellant also challenges the costs order made by the motion judge. Leave to appeal is necessary. We see no reason to grant leave to appeal on the costs question. Nothing in those reasons raises issues which, in our view, need to be addressed by this court.

[11] The appeal is dismissed.

[12] Costs to respondent granted in the amount of $12,500, inclusive of relevant taxes and disbursements.

“Doherty J.A.”

“Janet Simmons J.A.”

“M. Tulloch J.A.”