ONTARIO
SUPERIOR COURT OF JUSTICE
2015 ONSC 7035
COURT FILE NO.: CV-12-110604-00 and CV-12-110604-A1
DATE: 20151113
BETWEEN:
R & G Draper Farms (Keswick) Ltd.
Plaintiff/Defendant by Counterclaim
– and –
Nature’s Finest Produce Ltd., Kejay Farms, Kejay Investments Inc., Jason Raymond Stallaert, Keving Cornelius Stallaert, Campbell Soup Company and Campbell Soup Company Canada
Defendants/Plaintiffs by Counterclaim
Morris Manning, Q.C. and Theresa R. Simone for the Plaintiff/Defendant by Counterclaim
Raymond G. Colautti and Anita Landry, for the Defendants/Plaintiff by Counterclaim
AND BETWEEN:
R & G Draper Farms (Keswick) Ltd.
Plaintiff/Defendant by Counterclaim
– and –
2077583 Ontario Ltd., 1318910 Ontario Ltd., Daniel Ubald Bigras, 1099039 Ontario Ltd., 2123979 Ontario Ltd., C.H, Robinson, A.C. Schmieding Produce Co. Inc. and Nicole Shannon Marie Verhey-Stallaert
Third Parties
Morris Manning, Q.C. and Theresa R. Simone, for the Plaintiff/Defendant by Counterclaim
HEARD: September 22, 2015
REASONS FOR DECISION
EDWARDS j.:
Overview
[1] Summary judgment is intended, as the name suggests, to provide a party with a means to obtain a summary form of judgment without all of the forensic machinery that is attendant with a full blown trial. Summary judgment is intended to provide a means to obtain justice in a summary and speedy fashion. The time, effort and costs attendant with the issues that this court has had to deal with on the summary judgment motion before it do not reflect the post Hryniak approach to civil litigation.
[2] On July 16, 2015, I rendered my decision with respect to the plaintiff’s motion for summary judgment. The unsuccessful defendants on that motion for summary judgment now move pursuant to rules 52.10 and 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (hereinafter the Rules), to have this court receive further evidence that was not before the court during the hearing of the original motion for summary judgment.
The Facts
[3] Settlement negotiation between the parties began in April 2013. The evidence before me on the original motion for summary judgment, as it relates to the question of whether there was a settlement, included three emails and two cheques. The first cheque is dated April 12, 2011, bore cheque number 002883 and was in the amount of $7,219.28. The second cheque was also dated April 12, 2011, bore cheque number 011991 and was in the amount of $13,626.40. Both cheques were payable to R & G Draper Farms (“Draper”).
[4] As I noted in my reasons, I was not provided with any evidence as to when the cheques were actually negotiated and deposited by Draper. The evidence that the defendants now seek to place before the court is when the cheques were negotiated. In that regard, the defendants place before the court, bank statements of the defendants which reflect when the cheques were negotiated. In that regard, the bank statements reflect both cheques were cashed on April 18, 2011.
[5] During the course of argument of the original motion for summary judgment, I raised with counsel, a concern that I had relating to when the cheques were cashed. At no time during the course of the dialogue that I had with defence counsel was there any suggestion that the defendants wanted an adjournment so they could place before the court, evidence that clearly would have been available to establish when the cheques were cashed.
[6] There is nothing in the new evidence that is placed before the court that suggests at any time between when the settlement negotiations began in April 2011 through and until when these proceedings began that the defendants ever sought to have the cheques and/or the money returned to the defendants.
[7] The settlement negotiations began with an overture by the defendants to the plaintiff by way of an email, dated April 12, 2011, proposing a reduction in the amount owed to the plaintiff to an acknowledged amount of $189,603 with payments to be made monthly in the amount of $20,000. This email referred to the fact that two cheques would be sent to the plaintiff. Those are the cheques that are now the subject matter of this motion to receive fresh evidence.
[8] The bank statements now reflect the fact that the plaintiff cashed the cheques on April 18. On April 19, the plaintiff’s representative proposed that the monthly payments should be $40,000 and not $20,000. There was no response to the email of April 19 and, despite the fact that the defendants would have known that the plaintiff had cashed the cheques, no effort was made by the defendants to obtain the money back from the plaintiff. Even if it had not been possible for the defendants to place stop payments on the cheques, it would have been an easy task for the defendants to have emailed, written or in some way demanded through legal process the $20,845.68 which had been taken out of the defendant’s bank accounts when the plaintiff cashed the cheques.
Position of the Defendants
[9] The position of the defendants on this motion to receive fresh evidence is based on a misguided understanding of what occurred between the parties the day after the defendants had proposed terms of settlement that included fixing the defendants’ debt in the amount of $189,603 with payments to be made on a monthly basis in a fixed amount of $20,000. The defendants argue that what occurred on the day after the defendants email proposing terms of settlement was:
That the plaintiff then called the defendants the very next day on April 19, 2011, after cashing the cheques to reject the offer to settle and try to get more money.
(Defendant’s factum, paragraph 23)
[10] In fact, what occurred on April 19, 2011, was an email from the plaintiff’s representative indicating that the plaintiff was expecting $40,000 per month and not $20,000 as proposed in the defendant’s email of April 18.
[11] The defendants argue that the evidence now sought to be filed goes to the material points in issue on the motion for summary judgment, and that court should consider the following factors:
(a) There was no opportunity for the defendants to put a stop payment on the subject cheques;
(b) The issue of the purported settlement was advanced by the plaintiff as one of eleven other issues before the court on the summary judgment motion;
(c) The Royal Bank statements were not included in any of the sixteen volumes of motion materials filed by either party;
(d) The date the cheques were cashed by the plaintiff was not the subject in any of the affidavits filed by either party;
(e) The date the cheques were cashed was not brought up at cross-examinations by either party;
(f) Had the defendants know the date the cheques were cashed would be the basis for deciding the motion for summary judgment, they would have included the Royal Bank statements to prove the date on which the cheques were cashed;
(g) Had the Royal Bank statements been before the court to confirm the date when the cheuqes were cashed, this evidence would likely have had a material effect on the outcome of the decision, given the importance the defendants suggest this court attached to the date; and,
(h) It would be unfair, unjust and highly prejudicial for the court to not accept the Royal Bank statements as evidence.
Position of the Plaintiff
[12] The plaintiff takes the position that the Royal Bank statements which the defendants seek to place before the Court was evidence that the defendants could have put into its motion materials, but chose not to. As such, it is argued the defendants do not meet the test for fresh evidence or for reconsideration.
[13] The plaintiff further argues that whether the cheques were cashed prior to the plaintiff’s email of April 19, 2011, does not change the result because the defendants never asked the plaintiff for the return of the monies paid. In that regard, plaintiff’s counsel refers to paragraph 29 of my original Reasons, where I stated:
… I am satisfied that the fact that the defendants did not put a stop-payment on the two cheques totaling $20,845.68 was more than a good faith attempt on the part of the defendants to continue negotiations. Rather, I am satisfied that the defendants fully intended that those cheques would be cashed by the plaintiff as evidence that there was a binding settlement between the parties. The fact that Taylor did not respond to Ohri’s email of April 19, 2011 in any way, shape or form, in my view demonstrates that the defendants intended to be bound by the proposed counter-offer of $40,000.00 per month when it allowed the cheques to be cashed.
The Law
[14] There is little caselaw that deals with the type of fact situation confronted by the defendants’ motion to adduce further evidence on a summary judgment motion after the motion has already been determined. It might be suggested that the simple answer to such a motion can be found in the often cited requirement that both sides are expected to put “their best foot forward” on a motion for summary judgment and that the court can assume that all of the necessary evidence to decide the summary judgment motion has been put before the court by the parties. This is particularly so where the parties are represented by counsel.
[15] The defendants rely on rule 52.10 of the Rules, which provides that where, through accident, mistake or other cause, a party fails to prove some fact or document material to the parties case, the judge may proceed with the trial subject to proof of the fact or documents afterwards, and at such time and on such terms as the judge directs. This rule, on its face, deals with how the court is to proceed after a trial where one party seeks to admit evidence after a trial where no formal order has yet been issued. This rule, in my view, gives some guidance to the court in terms of how fresh evidence on a motion for summary judgment might be received.
[16] The defendants also rely on rule 59.06 of the Rules, which states,
An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.
[17] The defendants argue that, in this case, rule 59.06 would apply because there was an error made, in that the court did not appreciate that the cheques were cashed before the offer was rejected and as such, there was no opportunity for the defendants to stop payment. In that regard, the defendants argue that the court made numerous findings of intention on the part of the defendants “by allowing” the cheques to be cashed as follows:
(a) The only conclusion that this court can reach with respect to the cheques paid to the plaintiff is if they were paid in contemplation of the terms of settlement set forth in the email of April 12, 2011 from Taylor to Ohri (paragraph 15 of the original Reasons);
(b) By finding that these defendants fully intended that the cheques would be cashed by the plaintiff as evidence that there was a binding settlement between the parties (paragraph 29 of the original Reasons);
(c) By finding that the fact that Taylor did not respond to Ohri’s email of April 19, 2011, in any way, shape or form demonstrates that these defendants intended to be bound by the proposed counteroffer of $40,000 per month, when it allowed the cheques to be cashed (paragraph 29 of the original Reasons); and,
(d) By finding that when the defendants did not put a stop payment on the aforesaid cheques and allowed them to be negotiated/cashed by the plaintiff, this reinforced his conclusion that there was, in fact, an agreement reached, not only with respect to the principle amount, but also the terms of payment (paragraph 33 of the original Reasons).
[18] The answer to the suggestion that my original order contained an error arising from an accidental slip or omission based on a misguided finding with respect to the timing of the negotiation of the cheques, can be found in the fundamental statement of fact that at no time between April 18, 2011 and thereafter, was there any effort or demand made by the defendants for repayment of the $20,845.68.
[19] The test to introduce fresh evidence on an appeal incorporates much of the test applied where a party seeks to reopen a trial after judgment has been announced, but before it is entered. On an appeal, what has been referred to as the Palmer test requires the party seeking to adduce fresh evidence must show:
(a) the evidence could not, through due diligence, have been adduced at trial;
(b) the evidence is relevant, in that it bears on a decisive or potentially decisive issue;
(c) the evidence is credible; and,
(d) the evidence, if believed and taken with the other evidence, could be expected to effect the result.
[20] On a motion seeking to reopen a trial after judgment has been announced, but before it is entered, the parties seeking to adduce that evidence must show:
(a) that the evidence he or she seeks to adduce is such that if it had been presented at trial, would probably have changed the result; and,
(b) the party must prove that the evidence could not have been obtained by reasonable diligence before the trial.
[21] Recently, the Supreme Court of Canada in R. v. (A.J.). 2011 SCC 17, at paragraph 7, refers to the criteria for admissibility of fresh evidence established in R. v. Palmer [1979] 1 S.C.R. 759, and had occasion to comment on the due diligence test as follows at paragraph 8:
The appellant essentially concedes that he cannot meet the due diligence criteria, as this evidence obviously could have been adduced at trial. He submits, however, that this factor should not be determinative. Trial counsel explained in an affidavit that he did not consider retaining any kind of expert to examine the photos of the mark on his client’s finger, as it seemed to him that “the mark was a minor generic scratch” which in fact appeared inconsistent with the complainant’s testimony. Further, the Crown did not contemplate calling expert evidence about the mark. I agree that the due diligence criteria should not trump the other Palmer criteria, particularly in circumstances such as here, where trial counsel’s strategy was not unreasonable given the nature of the anticipated Crown evidence.
[22] It is apparent from the decision of the Supreme Court of Canada in R. v. A. that the due diligence requirement to adduce fresh evidence will not trump the other Palmer criteria, particularly where there could be a miscarriage of justice. This is particularly so in a criminal context.
[23] The due diligence requirement for the admission of fresh evidence in a civil proceeding where the issue between the parties is usually money versus the potential incarceration of an accused in a criminal proceeding is, however, very different.
[24] The due diligence requirement in a civil action is fundamental so as to ensure there is finality with the trial judge’s, or in this case, the motion judge’s decision. A trial, and for that matter, a motion for summary judgment, is not a “dress rehearsal” as Spies J. stated in Lo v. Ho [2010] O.J. No. 1055, at paragraph 40:
… counsel cannot and should not assume that the court will be receptive to reopening a trial to hear evidence that they decided not to call or mistakenly forgot to lead. There are no exceptional circumstances or any concerns that dismissing the motion will result in a miscarriage of justice that would warrant relaxing the “due diligence requirement” in this case. To the contrary, if counsel could obtain an order reopening a trial in these circumstances, in my view, that would amount to abuse of the court’s process.
[25] On the facts of the motion before me, there can be absolutely no doubt that the timing of when the cheques were cashed was something that was well within the possession, power or control of the defendants to place evidence before the court on that issue. The actual cheque, both front and back, could have been filed as an exhibit, or as occurred on this motion, the bank statements reflecting when they were cashed, could equally have been part of the defendant’s motion materials. The defendants chose, for whatever reason, not to put that evidence before the court, perhaps because they did not see it as a material issue.
[26] In my view, the due diligence requirement of the Palmer test remains an important part of the context within which fresh evidence will be received by the court, whether it be at trial or on a motion for summary judgment. There must be finality to the court’s judgments within the context of civil litigation. This, in my view, is particularly so on a motion for summary judgment, where the court for years has assumed that the parties have placed before the court, all relevant evidence, and that they have put their best foot forward.
[27] Even if I were to relax the due diligence requirement for the receipt of the fresh evidence, sought to be adduced by the defendants, in my view, it would have made no difference to the ultimate result. As I have already noted, once the plaintiff had responded to the defendant’s email of April 18 with a suggestion of an increased monthly payment of $40,000, no response was forthcoming from the defendants, either repudiating this revised term of settlement or a demand that the $20,845.68 be returned. While my original Reasons may have referred to the absence of any stop payment on the cheques, the same analysis in my view holds true with respect to the fact that the defendants failed to demand the $20,845.68 be repaid by the plaintiff.
[28] The defendants’ motion to adduce fresh evidence is therefore dismissed. The parties have agreed on costs and the defendants shall pay to the plaintiff, costs fixed in the agreed upon amount of $2,500, inclusive of HST.
[29] In addition to the defendants’ motion seeking to adduce fresh evidence, this court was called upon to determine whether or not the court’s finding of a settlement was determinative of the defendants counterclaim.
[30] When the motion was originally heard on June 17, 2015, I engaged counsel in discussion as to how best to deal with all of the various motions that were before me. I suggested to counsel, that dealing with the question of whether or not there was a settlement could ultimately assist the parties with respect to the outcome concerning the remaining motions, including the viability of the defendants’ counterclaim. It was conceded by counsel for the defendants during the course of those discussions that if I decided the question of settlement in favour of the plaintiffs that this likely would pose significant difficulties for the defendants with respect to their counterclaim. I remain of the view that having now found in favour of the plaintiff on the question of whether there was a settlement of the debt owed by the defendant to the plaintiff that the most likely outcome with respect to the defendants’ counterclaim would be that the counterclaim is subsumed within that settlement.
[31] While I may be of that view, at this stage of the proceedings, it would, in my opinion, be unfair not to allow the defendants to proceed with their counterclaim, while at the same time allowing the plaintiffs to take the position that the determination of the settlement incorporated implicit terms that there would be a mutual release of all potential claims between the parties as they existed as of mid-April 2011.
[32] The order therefore that shall issue, which flows from my determination at the motion for summary judgment is simply an order requiring the defendants, Nature’s Finest, Kejay Farms and Kejay Investments Inc., to pay to the plaintiff, the sum of $168,757.32.
[33] If there are any other administrative issues that flow from my order as it relates to pre-judgment interest, costs or anything else, the parties may make arrangements through my assistant for a conference call.
[34] While I am not seized of this matter, I am prepared to case manage this case and/or to conduct a pretrial in an effort to bring this protracted litigation to an end.
Mr. Justice M.L. Edwards
Released: November 13, 2015
2015 ONSC 7035
COURT FILE NO.: CV-12-110604-00 and CV-12-110604-A1
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R & G Draper Farms (Keswick) Ltd.
Plaintiff/Defendant by Counterclaim
– and –
Nature’s Finest Produce Ltd., Kejay Farms, Kejay Investments Inc., Jason Raymond Stallaert, Keving Cornelius Stallaert, Campbell Soup Company and Campbell Soup Company Canada
Defendants/Plaintiffs by Counterclaim
AND BETWEEN:
R & G Draper Farms (Keswick) Ltd.
Plaintiff/Defendant by Counterclaim
– and –
2077583 Ontario Ltd., 1318910 Ontario Ltd., Daniel Ubald Bigras, 1099039 Ontario Ltd., 2123979 Ontario Ltd., C.H, Robinson, A.C. Schmieding Produce Co. Inc. and Nicole Shannon Marie Verhey-Stallaert
Third Parties
REASONS FOR DECISION
Edwards J.
Released: November 13, 2015