Court of Appeal for Ontario

Date: 2019-04-25 Docket: C65734

Judges: Doherty, Paciocco and Zarnett JJ.A.

Between

Gro-Bark (Ontario) Ltd., Intact Insurance Company and Aviva Canada Incorporated Plaintiffs (Appellants)

and

Eacom Timber Corporation Defendant (Respondent)

Counsel

Matthew Wells and Janice Kim, for the appellants

Dana Eichler and Andrew Yolles, for the respondent

Heard and released orally: April 16, 2019

On appeal from: the judgment of Justice M. D. Parayeski of the Superior Court of Justice, dated April 25, 2018.

Reasons for Decision

[1] In our view, this appeal must be allowed. The issue raised on the summary judgment motion turned on the interpretation of para. 20 of the Licence Agreement between Gro-Bark and Eacom.

[2] The motion judge found in favour of the respondent's interpretation and granted summary judgment on that basis. Unfortunately, his reasons provide little insight into the process that led to that conclusion. He said, at para. 8:

I adopt and rely upon the analysis and statements of law contained in paragraphs 24 to 36 inclusive of the defendant's factum. These paragraphs, in my view, satisfactorily answer the arguments raised by the plaintiffs.

[3] With respect, the motion judge did not engage in the contractual interpretative exercise required by the issue raised on the motion. His reference to the "analysis and statements of law" contained in the respondent's factum, standing alone, cannot be equated to an actual application of the principles of contractual interpretation to the circumstances as they existed in the particular case.

[4] The trial judge's "adoption" of the relevant parts of the respondent's factum may or may not have been intended by the motion judge as a reference to the findings of fact urged by the respondent in those parts of its factum. Even if it was intended as an adoption of those facts, there is nothing in the reasons that explains what evidence the motion judge considered, or how his consideration of that evidence led him to come to the same opinion with respect to the facts as the respondent had urged. In short, there is simply no explanation for why the motion judge arrived at the conclusion he did.

[5] Nor is this one of those cases in which the basis for the trial judge's adoption of the facts as urged by the respondent can be seen as self-evident from the record. A review of the evidence in this record does not necessarily suggest that the findings urged by the respondent would necessarily be made. The evidence was far from one-way and was far from crystal clear. To the extent that the evidence could support the necessary factual findings required to grant judgment on the r. 20 motion, that evidence had to be carefully examined and the motion judge had to articulate the basis upon which he arrived at the findings he did. Neither happened here. Consequently, the appeal must be allowed.

[6] The appeal is allowed. The decision below is set aside and the matter should proceed. Nothing said here is intended to comment one way or the other on any subsequent summary judgment motion that may be brought in respect of this issue.

[7] The parties are agreed on costs. The appellants are entitled to costs on the motion of $10,000, inclusive of disbursements and relevant taxes, and the appellants are entitled to $10,000 as costs on the appeal, also inclusive of disbursements and relevant taxes.

"Doherty J.A."

"D.M. Paciocco J.A."

"B. Zarnett J.A."