Court of Appeal for Ontario

Docket: C61380

Judges: Sharpe, Lauwers and Miller JJ.A.

Between

Mariner Foods Ltd. Plaintiff/Respondent

and

Leo-Progress Enterprises Inc. Appellant/Defendant

Counsel

Shahzad Siddiqui, for the appellant

Assunta Mazzotta, for the respondent

Hearing and Appeal

Heard: December 23, 2016

On appeal from: the order of Justice Stewart of the Superior Court of Justice, dated November 6, 2015.

Appeal Book Endorsement

[1] The appellant moves to admit fresh evidence that the respondent was under administration in the UK after the date of the statement of claim and in liquidation after the date of the judgment.

[2] The appellant submits that the fresh evidence demonstrates that the respondent was not entitled to pursue the claim.

[3] In our view, it is sufficiently clear from the exhibits to an affidavit filed in support of the motion for summary judgment that this was a subrogated claim brought by the respondent's credit insurer. The claim was accordingly not caught by the bankruptcy. Douglas v. Stan Fergusson Fuels Ltd., 2016 ONSC 442.

[4] The fresh evidence is therefore not capable of affecting the outcome and the application to admit it is dismissed. There is no other ground of appeal and the appeal is therefore dismissed.

[5] Costs to the respondent fixed at $5,000, inclusive of disbursements and taxes.