Court File and Parties

COURT FILE NO.: CV-10-15748

MOTION HEARD: 20130404

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IFC International Freight Consultants Ltd., Plaintiff

AND:

United Business Corporation, Load Solutions Inc., and Sharda Transportation Ltd., Defendants

BEFORE: Master Lou Ann M. Pope

COUNSEL: Kenneth R. Peel, for the Plaintiff

Yuvraj Chhina, for the Defendant, Load Solutions Inc.

HEARD: April 4, 2013

REASONS FOR endorsement

[1] The plaintiff claims that in August 2010 it arranged for shipment of frozen clam chowder and alfredo sauce for H.J. Heinz Canada Ltd. (“Heinz”), in which the goods were to be transported by truck from Rochelle, Illinois, U.S.A. to Trenton Cold Storage in Trenton, Ontario, Canada. However, the goods never arrived in Trenton. The plaintiff claims that it paid Heinz $58,248.18 U.S. for the shipment and therefore it brings this proceeding in the form of a subrogated action. The plaintiff claims that the defendants were negligent in the delivery of the goods in question.

[2] The plaintiff moves for summary judgment under Rule 20 against the defendant, Load Solutions Inc. (“Load”), or alternatively, to strike out the statement of defence of Load due to Load’s failure to comply with the rules regarding affidavit of documents, response to request to admit and production of evidence of insurance.

BACKGROUND

[3] This action was commenced on December 23, 2010, pursuant to the simplified procedure rules in Rule 76. The claim is for payment of the sum of $60,000.

[4] All defendants defended the action with Load and Sharda Transportation Inc. (“Sharda”) delivering statements of defence, and United Business Corporation (“UBC”) delivering a statement of defence and crossclaim against Load and Sharda.

[5] The plaintiff, IFC International Freight Consultants Ltd. (“IFC”) is an Ontario corporation which carries on business in Wheatley, Ontario as well as in the province of Ontario as a transportation brokerage. Simply put, if someone wishes to have a product moved, they would contact IFC, and in turn IFC would act as broker and make the necessary arrangements to move the product from point A to point B. That was precisely what happened in this action where Heinz contacted IFC to move the frozen product.

[6] UBC is an Illinois corporation which carries on business in the United States of America and Canada as a transportation company.

[7] Load and Sharda are both Ontario corporations operating as transportation companies throughout Ontario. Load operates out of Cambridge, Ontario and Sharda operates out of Brampton, Ontario. Sharda owns and operates a single truck driven by Bushan Sharda.

[8] A mediation session was conducted. No examinations for discovery have been held; however, there had been communication between counsel regarding scheduling of same.

[9] Load changed lawyers in January 2012 to Mr. Chhina, its current lawyer. The plaintiff also changed lawyers in late July 2012 to its current lawyer, Mr. Peel.

[10] On November 2, 2012, the plaintiff served a draft affidavit of documents along with copies of the Schedule A documents and a request to admit. Subsequently on November 9, 2012, the plaintiff served the affidavit of documents as sworn by Robert J. Hornick. Mr. Hornick is a director and president of the plaintiff. At that time Mr. Peel also requested affidavits of documents and production of documents from the defendants, as well as production of any insurance policy under which an insurer may be liable to satisfy all or part of a judgment.

[11] Load eventually delivered its affidavit of documents and production of documents, albeit, after being served with this motion. One of the documents produced was a certificate of insurance.

[12] Load also delivered a draft response to the plaintiff’s request to admit. This response involves one of the issues on this motion which will be addressed later in this decision.

FACTS

[13] The plaintiff contracted with Heinz to arrange for the transport of frozen product to be picked up at Americold Logistics facility in Rochelle, Illinois on August 6, 2010, for delivery to Trenton Cold Storage in Trenton, Ontario on August 12, 2010.

[14] IFC states that on August 6, 2010, it entered into a contract of carriage for UBC to pick up the frozen load from the Americold facility in Rochelle, Illinois and to deliver it to Trenton Cold Storage in Trenton, Ontario. In its statement of defence, UBC denies entering into any such contract with IFC or having any knowledge or information concerning the alleged contract.

[15] On several documents produced by IFC, the carrier is shown as UBC with IFC’s dispatch number was 247680. There are email communications between IFC and UBC in early August 2010 in which “Bill” at IFC dispatch requested from “Dave” at UBC their company letterhead which was ultimately provided by UBC, according to IFC. It appears that UBC also provided IFC with its Certificate issued by the U.S. Department of Transportation which authorized it to engage in transportation as a common carrier of property by motor vehicle in interstate or foreign commerce. IFC states that UBC also produced to IFC copies of its Certificate of Liability Insurance for the relevant period and Internal Revenue Service Form W-9 Request for Taxpayer Identification Number and Certification.

[16] IFC alleges that after contracting with UBC, UBC arranged for the load to be transported by Load and, thereafter, Load contracted with Sharda which provided a driver for Load to transport the product. Again, in its statement of defence, UBC denies making any such arrangements with Load.

[17] However, in its statement of defence Sharda states that on September 6, 2010 (presumably the month is in error and ought to have stated “August”), it was instructed by Load to travel to the Americold facility in Rochelle, Illinois to pick up goods identified with the Americold Straight Bill of Lading #3334847. Sharda further states that it was instructed by Load to deliver the goods to Load’s facility in Puslinch, Ontario and that another driver for Load would be delivering the goods to its final destination. Sharda admits to receiving the goods in Rochelle, Illinois on August 6, 2010 (September stated in error), and delivering the goods to Load’s facility in Puslinch, Ontario.

[18] Sharda further states that on August 9, 2010 (September stated in error), Load instructed the driver to transport the goods to a cross-dock facility in St. Laurent, Quebec, operated by an entity known as Trinet. Sharda was also advised that he would receive payment for the transportation services from Trinet and that these funds were to be delivered to Load. The Sharda driver goes on to state that he received the goods on August 9, 2010 (September stated in error) at Load’s facility in Puslinch, Ontario and on August 10, 2010 (September stated in error), he delivered the goods to the receiver at Trinet in St. Laurent, Quebec in the same order and condition as received from Load.

[19] After the delivery was completed, Sharda states that the receiver at Trinet signed the Americold Straight Bill of Lading #3334847 to acknowledge that the goods were received in the same order and condition as described on the bill of lading. Sharda further states that after the delivery was completed, he received funds from Trinet for payment of the transportation services and that the same day he returned to Puslinch, Ontario and delivered the said funds to Load.

[20] In its statement of defence Load states that after UBC contracted with IFC for transportation of the goods, UBC then arranged for the goods to be transported by Load. Load admits that it then contracted with Sharda to provide a driver for Load to transport the goods to Trenton, Ontario. Load also admits that it picked up the goods on August 6, 2010, and transported them from the United States of America to Canada on August 7, 2010, across the Bluewater Bridge into Sarnia. However, Load denies that the goods were cross-docked in St. Laurent, Quebec and that Sharda was paid for the transportation services. This is in direct conflict with Sharda’s evidence set out above.

[21] Load’s statement of defence merely sets out the admissions and denials of allegations of fact contained in the statement of claim, as well as those allegations for which it has no knowledge. However, Load fails to set out its version of the facts different from that pleaded in the statement of claim or the other defendants’ statements of defence. This is in contravention of rule 25.07(3) which states:

Where a party intends to prove a version of the facts different from that pleaded by the opposite party, a denial of the version so pleaded is not sufficient, but the party shall plead the party’s own version of the facts in the defence.

REQUEST TO ADMIT

[22] Load seeks leave to withdraw the admissions that arguably it is deemed to have made by failing to deliver a response to the plaintiff’s request to admit within the prescribed time set out in the Rules.

[23] The plaintiff served its request to admit on all defendants on November 2, 2012. Both UBC and Sharda delivered responses within the prescribed time; however, Load did not. During the 20-day interval after serving its request to admit, the plaintiff served its affidavit of documents, produced copies of the Schedule A documents, and requested same from the defendants. Plaintiff’s counsel also requested from the defendants production of a copy of any relevant insurance policy.

[24] On December 11, 2012, assistant to Mr. Chhina, counsel for Load, advised Mr. Peel that Mr. Chhina was out of the country since the beginning of December returning January 10, 2013.[^1] Load’s evidence is that Mr. Chhina’s articling student drafted the response; however, due to her untimely departure from Mr. Chhina’s office, the response was inadvertently not delivered to the plaintiff. Mr. Chhina’s assistant faxed Mr. Peel Load’s response to request to admit. The date on the response is November 23, 2012, which is one day beyond the 20-day timeline for delivery of a response.

[25] Load’s draft response sets out the following:

1. Admits the truth of the facts- N/A

2. Admit the authenticity of documents numbers- N/A

3. Denies the truth of facts numbers- 1-35

4. Denies the authenticity of documents numbers- 1-25

5. Refuses to admit the truth of the facts numbers for the following reasons- N/A

[26] Load’s evidence is that when Mr. Chhina returned to his office, he gave an undertaking to Mr. Peel to speak with his client and to advise whether a more elaborate response to request to admit would be provided. Load’s evidence is that Mr. Chhina had that discussion with his client and it was decided that the original response was adequate and therefore no further response would be provided.

[27] In the circumstances, I find that Load’s response to the request to admit, which was delivered to the plaintiff one day later than the requisite time under rule 51.03(1), is an irregularity not a nullity as described in rule 2.01(1). As such, service of the response is hereby validated as if it were served within the 20-day requisite period. Further, I find that the late delivery does not constitute deemed admissions by Load as set out in rule 51.03(2); therefore there is no basis to grant Load’s request to withdraw any deemed admissions.

SUMMARY JUDGMENT

[28] In relying on the decision of Justice Karakatsanis in New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC 1037, Justice Hackland in Connerty v. Coles, 2012 ONSC 5218 at para. 9, reiterated that the onus is on the parties and the shifting burden of proof in summary judgment motions is as follows:

Rule 20.01(3) provides that a defendant who seeks summary dismissal must “move with supporting affidavit material or other evidence.” The defendant bears the evidentiary burden of showing that there is no genuine issue requiring a trial. The defendant must prove this and cannot rely on mere allegations or the pleadings. It is only after the moving party has discharged its evidentiary burden of proving that there is no genuine issue which requires a trial for its resolution, that the burden shifts to the responding party to prove that its claim or defence has a real chance of success. Pursuant to Rule 20.02(2), a responding party “may not rest solely on the allegations or denial in the party’s pleadings but must set out in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial.” In other words, consistent with existing jurisprudence, each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. The court is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.

[29] Justice Hackland went on to state that:

The question of whether the evidence available to the court on a summary judgment motion allows for a “full appreciation” of the matter is highly fact dependant and varies on a case by case basis. As the Court of Appeal observed in Combined Air, [2011] O.J. NO. 5451, at para. 39:

Although both the summary judgment motion and a full trial are processes by which actions may be adjudicated in the “interest of justice”, the procedural fairness of each of these two processes depends on the nature of the issues posed and the evidence led by the parties. In some cases, it is safe to determine the matter on a motion for summary judgment because the motion record is sufficient to ensure that a just result can be achieved without the need for a full trial. In other cases, the record will not be adequate for this purpose, nor can it be made so regardless of the specific tools that are now available to the motion judge. In such cases, a just result can only be achieved through the trial process. This pivotal determination must be made on a case-by-case basis.

[30] Justice Hackland further noted that the Court also offered this caution in relation to the “best foot forward” concept, at para. 57:

However, we add an important caveat to the “best foot forward” principle in cases where a motion for summary judgment is brought early in the litigation process. It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.

[31] In the present case, the plaintiff moved for summary judgment. The applicable rule is 20.01(1) which provides that a plaintiff who seeks summary judgment must move with supporting affidavit material or other evidence on all or part of the claim.

[32] I pause at this point to recognize that counsel for Load did not object to this motion being heard by a master. However, consideration of the jurisdiction of a master hearing a summary judgment motion is necessary. I refer to the thorough summary on this point by Master MacLeod in Mehdi-Pour v. Minto Developments Inc., 2010 ONSC 5414 (upheld on appeal to Divisional Court 2011 ONSC 3571, [2011] O.J. No. 2845). In that action, the defendants brought a summary judgment motion and it was argued before the master that the motion ought to be adjourned to a judge as the motion would require a decision on a point of law such that it exceeded the jurisdiction of the master.

[33] Regarding the jurisdiction of a master on a point of law as referenced in rule 20.04(4), Master MacLeod articulated at para. 13:

Motions under Rule 20 are within the jurisdiction of a master as well as a judge. There is however a restriction on the master hearing the motion. If the master determines that the “only issue is a genuine question of law” and it appears appropriate to decide the question on the motion, rule 20.04(4) requires that the master adjourn the question to be decided by a judge. This requirement does not deprive the master of jurisdiction of hear the motion in the first place.

It is only after determining that the case can be distilled to genuine question of law that the master is precluded from deciding the question. It is open to a master to determine that there is no genuine question of law in the same way that the master can determine there is no genuine question of fact. It is also open to the master to dismiss the motion because there is no genuine question of law if it appears resolution of the question requires a trial.

The permission given to a judge to decide a genuine question of law on a motion does not limit the power of masters to apply settled legal principles of the facts of the case or to read and construe provisions of contracts, statutes or other legal documents. Even if the law is in dispute, the master could decide the motion by simply giving the responding party the benefit of the most favourable approach. For example, in the case at bar, if there is conflicting case law concerning the test for causation then the plaintiffs could be given the benefit of the line of cases most favourable to their case. In any event applying the law of causation to a set of disputed facts does not fall within Rule 20.04(4) since it is not a situation in which the “only issue is a genuine question of law”. (See Harlon Canada Inc. v. Lang Investment Corp. 2010 ONSC 5264 (Div. Ct.); Neighbourhoods of Cornell v. 1440105 Ontario Inc. (2006), 40 C.P.C. (6th) 117 (Ont. Master).)

NATURE OF THE CLAIM

[34] The plaintiff moves under rule 20.01(1) for summary judgment against Load on all the claims in the statement of claim. The plaintiff claims that it incurred a monetary loss of $60,000 for the lost shipment of product by the defendants who were negligent in performing the contract of carriage while the load being transported was in the custody, possession and control of the defendants, as bailee for value. The plaintiff further states that it paid Heinz, the owner of the product, the said sum. The plaintiff claims that it gave the defendants notice in writing of the plaintiff’s claim on September 14, 2010.

[35] In my view, for this action to succeed, the plaintiffs must prove at least the following facts:

a. The plaintiff contracted with Heinz to arrange for transportation of Heinz’s good;

b. The plaintiff contracted with UBC to arrange for transportation of the subject goods;

c. UBC contracted with Load to pick up the goods from Americold Logistics facility in Rochelle, Illinois and transport them for delivery to Trenton Cold Storage in Trenton, Ontario;

d. Load picked up the goods from Americold and it continued to be in possession of the goods at all times;

e. Load did not deliver the goods to Trenton Ontario as specified;

f. The plaintiff paid for the lost goods to the owner, Heinz.

LOAD’S POSITION

[36] Load argues that its defence is prejudiced because it did not have the ability to examine the plaintiff and or the co-defendants. Further, it argues that a timetable did not exist for the exchange of documents, nor has a pre-trial or trial date been scheduled.

[37] Load also submits that its deemed admissions raise triable issues as the majority of the documents listed in the plaintiff’s request to admit were not known or in the possession of Load. Given my decision set out above that service of Load’s response to request to admit was validated, there is no issue regarding deemed admissions by Load.

LAW REGARDING CARGO MOVEMENT

[38] The plaintiff states that the applicable law in relation to this cargo movement that originated in Illinois, U.S.A. and moved into Ontario under the subject bill of lading is both American and Canadian law. The laws of both jurisdictions impose responsibility on the plaintiff as the party that arranged the transportation and also imposes common law liability on any carrier or party in possession of the cargo for any loss.

[39] The plaintiff further submits that the laws of both jurisdictions impose vicarious liability on the originating carrier for loss occurring on the lines of a connecting carrier, and the defence of privity was removed by imposing the same liability on a delivering carrier.

[40] The plaintiff cites statements of the law from the text, Motor Carrier Cargo Claims by John S. McNeil, Thomson Carswell, (5 ed.) at pp. 23, 266-7. McNeil states that the effect of provincial legislation has been to bind the carrier to a degree of liability that is expressed, in the statutorily imposed contract, in the following terms (taken from the Ontario prescribed Conditions of Carriage under the Highway Traffic Act, R.S.O. 1990, C. H.8, as amended):

1. Liability of Carrier

The carrier of the goods described in this contract is liable for any loss of or damage to goods accepted by the carrier or the carrier’s agent except as provided in this Schedule.

5. Exceptions from Liability

The carrier shall not be liable for loss, damage or delay to any of the goods described in the contract of carriage caused by an act of God, the queen’s or public enemies, riots, strikes, a defect or inherent vice in the goods, an act or default of the consignor, owner or consignee, authority of law, quarantine or difference in weights of grain, seed or other commodities caused by natural shrinkage.

[41] Load does not dispute the law as referenced by the plaintiff.

ANALYSIS AND CONCLUSION

[42] Regarding the elements of proof set out above, the plaintiff has placed sufficient evidence before the court to substantiate that it contracted with Heinz to arrange for transportation of Heinz’s goods from Rochelle, Illinois to Trenton, Ontario. I reference numerous documents contained in the plaintiff’s supplementary motion record which are the Schedule A documents contained in the plaintiff’s affidavit of documents, including documents at tabs 1, 2 and 24. The documents at tab 24 are the invoice from Heinz to the plaintiff for the “load lost in transit” in the sum of $58,248.18 USD and the plaintiff’s cheque to Heinz in payment of the invoice.

[43] I am further satisfied that the plaintiff has placed sufficient evidence before the court to satisfy its onus of proving that it contracted with UBC to arrange for transportation of the subject goods. The documents at tab 1 of the plaintiff’s supplementary motion record contain the plaintiff’s international dispatch print screen history. It sets out that UBC is the carrier and with particular attention to “Dave” at UBC. The reference to “Dave” coincides with several of the same references to “Dave” in the string of emails at tab 2, the latest of which was an email from Americold to Heinz, copied to the plaintiff, which confirms UBC as the carrier and a conversation with “Dave” at UBC. There is also evidence contained at tab 3 of a string of emails between Dave at UBC and the plaintiff wherein the plaintiff requested a copy of UBC’s letterhead. The emails are followed by a copy of UBC’s Fax letterhead, UBC’s Certificate from the U.S. Department of Transportation authorizing it to engage in transportation as a common carrier, UBC’s Certificate of insurance for the relevant period, and the Department of the Treasury, U.S.A. Internal Revenue Service Form W-9 dated October 16, 2009, purportedly executed by a representative of UBC. This form contains UBC’s employer identification number.

[44] Further convincing evidence of a contract between the plaintiff and UBC is the plaintiff’s document as tab 5 which sets out its dispatch number and bill of lading number 247680, the carrier as UBC with reference to attention “Dave” at UBC, pickup and delivery dates and locations and, lastly, the form states at the bottom: “IMPORTANT---CARRIER MUST CONFIRM ACCEPTANCE OF THIS DISPATCH.” The following document at tab 6 appears to be UBC’s confirmation. It is entitled UBC Load Confirmation & Rate Agreement dated August 6, 2010, and it sets out that the carrier is Load with the plaintiff’s bill of lading number 247680.

[45] There is also Americold’s Straight Bill of Lading at tab 7 which shows the carrier as UBC with contact “Dave”, for shipment of clam chowder and alfredo sauce to Heinz in Trenton, Ontario.

[46] It is important to note that many of the above referenced documents were produced by the plaintiff but they are documents purportedly generated by UBC. This is significant because UBC denies in its statement of defence that it contracted with the plaintiff.

[47] In my view, the plaintiff has adduced sufficient and convincing evidence of a contract between the plaintiff and UBC whereby UBC agreed to act as the carrier of the said goods for pickup from Americold Logistics facility in Rochelle, Illinois and transport them for delivery to Trenton Cold Storage in Trenton, Ontario.

[48] I am further satisfied that the plaintiff has placed sufficient evidence before the court to substantiate that UBC contracted with Load to deliver the said goods. UBC’s Load Confirmation & Rate Agreement, at tab 6, sets out that the carrier was Load. Load admits in its statement of defence that the plaintiff contracted with UBC and that UBC in turn contracted with Load to transport the goods. Furthermore, Load admits that it contracted with Sharda to provide a driver.

[49] I pause at this point to note that Load’s response to the plaintiff’s request to admit contains blanket denials of the truth of the facts and authenticity of the enumerated documents. It is clear that the denials are in direct conflict with Load’s admissions contained in its statement of defence. Although it is in the discretion of a trial judge to determine the reliability of a response to a request to admit, it is within the court’s discretion on a motion for summary judgment to consider the evidence and the pleadings that are before the court.

[50] For those reasons, it is my view that there is sufficient evidence to substantiate that UBC contracted with Load to deliver the said goods.

[51] Returning to the facts that the plaintiff must prove, I am satisfied that the plaintiff has placed evidence before the court to substantiate that Load picked up the goods from Americold and continued to be in possession of the goods at all times. As stated above, Load admitted in its statement of defence that it, by means of the Sharda driver, picked up the goods August 6, 2010, and transported them from the United States to Canada on August 7, 2010, across the Bluewater Bridge into Sarnia, Ontario. Further, Americold’s Bill of Lading at tab 8, contains what appears to be Sharda’s stamp, bar code and border crossing details. There is also evidence of Trinet’s Bill of Lading which sets out that Load was the consignee and a statement that the shipment was received in St. Laurent, Quebec in good order on August 10, 2010. Further evidence is the Sharda driver’s daily logs, at tab 10.

[52] I am further satisfied that the plaintiff has placed evidence before the court to substantiate that Load failed to deliver the goods to Trenton Ontario as specified. In reviewing all of the evidence, it is clear that up to the point when UBC issued its Load Confirmation & Rate Agreement on August 6, 2010, all the documents specify that delivery was to be to Trenton, Ontario. However, UBC’s Load Confirmation form states that the “shipper” was Americold Rochelle IL”, the carrier was Load, and the goods were to be cross-docked to consignee “Cross Dock Systems” in Mississauga, Ontario. A second copy of UBC’s Load Confirmation form dated the same day shows a change of consignee to “Will Follow--- Montreal QC”, followed by handwriting which includes a reference to “St. Laurent”. On the other hand, Americold’s Straight Bill of Lading dated August 6, 2010, the same date as UBC’s Load Confirmation form, clearly states that UBC is the carrier and the goods were to be shipped to Trenton, Ontario. As well, a further copy of Americold’s Bill of Lading which contains the Sharda stamp and border crossing details, is also clear that the goods were to be shipped to Trenton, Ontario.

[53] There is sufficient evidence that the goods were not delivered to Heinz in Trenton, Ontario. The Trinet Bill of Lading states that the goods were delivered to Trinet in St. Laurent, Quebec and the Sharda’s daily log evidences the delivery to St. Laurent. The plaintiff advised UBC’s insurer of its claim on August 11, 2010, on the basis that the goods have not been found or delivered pursuant to its dispatch number 247680. Of course, UBC denies that it contracted with the plaintiff to deliver the goods; however, Load admitted to contracting with UBC and to picking up and transporting the goods. This motion is for summary judgment against Load as the carrier of the goods, not UBC.

[54] Therefore, it is reasonable to conclude from these documents that the defendants were aware that the goods were to be delivered to Heinz in Trenton, Ontario and the problems that arose regarding cross-docking at other locations emanated from UBC and communicated to Load.

[55] Lastly, there is sufficient evidence before the court to substantiate that the plaintiff paid for the lost goods to the owner, Heinz. There is evidence of Heinz’s invoice to the plaintiff, the plaintiff’s cheque in payment to Heinz, and the letter from Heinz dated January 24, 2012, which states that their claim against the plaintiff was paid in full in November 2011 and that Heinz no longer has an interest in the claim.

[56] Load has the onus to put its best foot forward as the responding party to this motion.

[57] In my view, Load has not done so. Firstly, the evidence adduced by Load is two affidavits of Mr. Chhina’s articling student sworn February 21, 2013 and March 8, 2013. Although not stated in her affidavit, it is obvious that the articling student did not work for Mr. Chhina while the majority of the work was completed on this file from the time Load’s statement of defence was dated on February 11, 2011; therefore, her knowledge of this matter is limited to reading the file and based on information she learned from Mr. Chhina.

[58] Further, the articling student states that she verily believes that Load always intended to defend the claim on its merits and to have timely addressed the issues to move the matter forward (Affidavit of Jyoti Chaudhry, para. 6, sworn March 8, 2013). Ms. Chaudhry fails to state the source of that information. In my view, in putting its best foot forward, Load should have placed evidence before the court from the principal of Load to attest to the facts and reasons why Load was not responsible to the plaintiff. Given the significant effect the disposition of this motion could have on Load, in my view, it was incumbent on Load to place its best evidence before the court. It failed to do so.

[59] Furthermore, Load failed to put any evidence before the court to explain the reason why UBC’s Load Confirmation form, in which Load is shown as the carrier, makes reference to the goods being cross-docked in Mississauga, Ontario. Moreover, Load failed to explain the reference to cross-docking in Montreal, Quebec and St. Laurent, Quebec as set out in UBC’s Load Confirmation form. These documents were produced by Load as documents 4 and 5 in its own affidavit of documents. Load also failed to explain why the goods were ultimately delivered to Trinet in St. Laurent, Quebec. (Document 6 to Load’s affidavit of documents.) Given that UBC delivered a crossclaim against Load, and further, given the nature of this motion for summary judgement against Load only, it was critical that Load put its best food forward by explaining the apparent discrepancies in these documents.

[60] There are facts in dispute in this action based on the pleadings. Notably, counsel for Load made submissions at the hearing of this motion that Load followed UBC’s instructions to deliver the goods to St. Laurent, Quebec; however, Load did not plead this fact in its statement of defence nor did Load deliver a crossclaim against UBC. In fact, Load pleaded in its statement of defence that it contracted with Sharda to provide a driver to transport the goods to Trenton, Ontario (statement of defence of Load, paragraph 1, admission to paragraph 8 of the statement of claim). In my view, this admission is fatal to Load’s defence.

[61] Further, the legislation is clear that the carrier of goods is liable for any loss of or damage to goods accepted by the carrier or the carrier’s agent (Highway Traffic Act, Ontario Regulation 643/05, Carriage of Goods, Schedule 1, section 2).

[62] Load submits that there is a genuine issue regarding the plaintiff’s standing to bring this action when they were not the original owner of the cargo. As set out above, I am satisfied on the evidence that the plaintiff has placed evidence before the court that substantiates that the plaintiff contracted with Heinz, the plaintiff paid Heinz’s invoice for the lost goods and that Heinz has no further interest in the plaintiff’s claim. These facts, in my view, permit the plaintiff to be subrogated to the rights of Heinz.

[63] Load further contends that there is a genuine issue requiring a trial regarding privity of contract as the plaintiff had no contract with Load. As stated earlier in these reasons, Load did not dispute the law as set out by the plaintiff regarding carriage of goods. Load also failed to make any submissions or to explain why Load, as the carrier, ought not to be held liable in the face of the applicable law that holds the carrier liable for lost or damaged goods accepted by the carrier or its agent. I repeat that Load admitted in its statement of defence that it contracted with Sharda to provide a driver and that the goods were picked up in Illinois and were to be delivered to Trenton, Ontario.

[64] Load also submits that there is a genuine issue requiring a trial regarding the liability of the parties. As stated above, UBC delivered a crossclaim against Load; however, Load did not deliver a crossclaim against either of the other defendants. As such, UBC raised the issue of liability; Load did not. Further, Load made no allegations against UBC in its statement of defence regarding UBC’s instructions to Load as to the location where the goods were to be delivered. Recognizing that UBC raised the issue of liability, on a motion for summary judgment, it is within the court’s discretion to decide based on the evidence submitted by the parties whether there is a genuine issue requiring a trial. The test is not whether there is an issue requiring a trial, but a “genuine” issue.

[65] Lastly, Load argues that this motion was brought early in the action when examinations for discovery had not been conducted such that Load’s position is seriously prejudiced. I note however that affidavits of documents of all the parties, except Load, had been exchanged prior to the plaintiff bringing this motion. Load delivered its affidavit of documents subsequent to being served with this motion. The plaintiff was within its right under rule 20.01(1) to bring this motion when it did. There is no prohibition to bringing a summary judgment motion before discoveries are held. The only pre-requisite to bringing such a motion is that the defendant must have delivered a statement of defence or served a notice of motion. On a summary judgment motion, the court is required to consider the evidence submitted by the parties to determine whether there is no genuine issue requiring a trial with respect to the claim in this case (rule 20.04(1)(2)). In some cases, it is possible that a court might conclude that there is a genuine issue of fact requiring a trial and that conducting examinations for discovery are required on the particular fact or facts in dispute. However, in cases where the court is satisfied based on the evidence and the record before the court that there is no genuine issue requiring a trial, the court may grant summary judgment.

[66] For the reasons set out above, Load has failed to put its best foot forward and to adduce sufficient evidence to satisfy the court that there is a genuine issue requiring a trial as required by rule 20.02(2). Further, in my view, there is no genuine issue of law requiring a trial. Load did not dispute the law as put forth by the plaintiff, nor did it make any arguments on the law. There is no need to assess credibility.

[67] It is my view that the plaintiff has met the onus of satisfying the court that it will succeed at trial in proving all the elements of proof based on the evidence filed for this motion. Therefore, I am granting the plaintiff’s motion for summary judgment against Load.

DISPOSITION AND COSTS

[68] There will be an order for summary judgment against the defendant, Load Solutions Inc.

[69] The plaintiff is entitled to costs of the motion and of the action against Load.

[70] The plaintiff filed a Costs Outline regarding the costs of this motion. However, counsel requested that they be permitted to make costs submissions in writing after this decision is rendered. Therefore, the plaintiff shall have 15 days from the date this decision is released to serve and file with the trial coordinator’s office, attention Dawn Caron, a bill of costs for the costs of this action and short submissions on costs of no more than two pages double spaced. Thereafter, Load shall have 15 days from the date it was served with the plaintiff’s costs submissions to serve and file at the same office its submissions on costs of no more than two pages double spaced.

Original signed by “Master Lou Ann Pope”

Master Lou Ann M. Pope

Case Management Master

Date: September 10, 2013

[^1]: The assistant’s letter is dated November 11, 2012; however, the month was likely in error and ought to have read “December” because it was faxed on December 11 and the fax cover sheet is dated “December”. Further, the date on the response to request to admit is dated November 23, 2012. As such, it does not make sense that the response dated November 23 was delivered on November 11.