Court of Appeal for Ontario

Date: 2018-03-20 Docket: C64310

Panel: MacFarland, Huscroft and Nordheimer JJ.A.

Between

S.N.S. Industrial Products Limited Plaintiff/Defendant by counterclaim (Appellant)

and

Omron Canada Inc. Defendant/Plaintiff by counterclaim (Respondent)

Counsel

John W. McDonald, for the appellant

Robert E. Kwinter & Nicole Henderson, for the respondent

Heard and released orally: March 19, 2018

On appeal from: the order of Justice David Broad of the Superior Court of Justice, dated September 14, 2017 with reasons reported at 2017 ONSC 4746.

Reasons for Decision

[1] The plaintiff appeals from the summary judgement granted by the motion judge that dismissed the plaintiff's action, gave judgment on the counterclaim, and awarded costs.

[2] The background facts can be stated briefly. The appellant was a distributor of the respondent's products. The respondent terminated the distribution agreement. At the time of termination, the appellant owed the respondent approximately $430,000 for product it had purchased.

[3] First, the appellant seeks to adduce fresh evidence that relates principally to the amount it owed to the respondent, which is the subject of the counterclaim. We would not admit the fresh evidence. It does not meet the test set out in R. v. Palmer, [1980] 1 S.C.R. 759. In particular, there is no explanation as to why this information could not have been put before the motion judge.

[4] In terms of the appeal itself, the motion judge concluded that the respondent had properly terminated the distribution agreement. There is no basis to interfere with that finding. It accords with the express terms of the agreement especially the termination for cause provision. After being told by the respondent that the distribution agreement would be terminated 60 days later, the appellant not only failed to honour customers' orders but it also circulated a letter to customers in which it disparaged the respondent. The respondent then immediately terminated the distribution agreement. The respondent's action in that regard was entirely justified. The fact that the motion judge, in reaching that conclusion, referred to an "anticipatory breach" of the agreement was an error in expression. It does not warrant this court interfering with his conclusion that the distribution agreement was properly terminated when that conclusion is founded on the evidence.

[5] The motion judge also properly concluded that there was no evidence to support the appellant's allegations of misuse of confidential information or of interference with contractual relations. The appellant's submission that other evidence might have been obtained if discoveries had been held completely misunderstands the principles surrounding summary judgment motions. All parties are required to put their best case forward and cannot avoid an adverse result by suggesting that if more opportunity is given, other information would be forthcoming.

[6] Finally, the motion judge correctly observed that the appellant had not challenged the counterclaim in any way.

[7] There was no genuine issue for trial in this case. The motion judge was correct in awarding the summary judgment that he did.

Conclusion

[8] The appeal is dismissed. Costs are awarded to the respondent fixed in the amount of $16,304.34 inclusive of disbursements and HST.

"J. MacFarland J.A."

"Grant Huscroft J.A."

"I.V.B. Nordheimer J.A."