Court File and Parties

COURT FILE NO.: CV-15-527848 DATE: 20161207 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Solea International BVBA, Plaintiff AND: Bassett & Walker International Inc., Defendant

BEFORE: Pollak J.

COUNSEL: Assunta Mazzotta and Timothy Law, for the Plaintiff Atrisha Lewis, for the Defendant

HEARD: July 27, 2016 with written submissions on September 14, 2016

Endorsement

[ 1 ] The Plaintiff, Solea International BVBA (“Solea”), claims payment from the Defendant, Bassett & Walker International Inc. (“BWI”) for a shipment of shrimp it sold to BWI. Solea brings this motion for summary judgment for payment of the sale price. Both parties agree and request that the Court decide Solea’s Claim by way of this motion for summary judgment. The counterclaim of BWI was withdrawn with consent of the parties at the hearing of the motion.

[ 2 ] Solea submits that the agreement of the parties provides that it was responsible for the container of shrimp until it cleared "the rail at the port of destination" on June 13, 2014, and then BWI was responsible for payment of the shipment and assumed all risk of loss after that time.

[ 3 ] BWI’s disputes that it is liable for payment because the shrimp could not clear Mexican customs. It argues that Solea did not give Mexican authorities the proper import documents – a valid health certificate as it was contractually bound to do. Solea, however, counters that there is no evidence that BWI tried to import the container into Mexico or that it was a deficiency in the health certificate which prohibited importation. Rather, Solea submits that the evidence is that the reason the container could not be imported was because of BWI’s own actions. Further, Solea argues that BWI advised it when the shrimp arrived at the port that payment for the shrimp would be made. The defence, it is alleged, was “made up” after this action was commenced.

[ 4 ] The parties did not make any submissions on the test that must be met in a motion for summary judgment, as they both requested the Court to deal with the resolution of this action on this motion for summary judgment. Notwithstanding the parties’ agreement, I will go through the analysis that is required by the Supreme Court of Canada.

[ 5 ] In the Hryniak v. Mauldin, et al 2014 SCC 7, [2014] S.C.R. 87 case, the Supreme Court of Canada gave us a roadmap of the approach to follow on a Motion for Summary Judgment. At paragraph 66 of the decision, the court states:

"On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).

If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness…

[ 6 ] In this action, there are issues in dispute. The evidence is, largely, uncontradictory.

[ 7 ] Applying the roadmap which I referred to above, on the basis of the evidentiary record alone, are there genuine issues that require a trial? I must also ask myself if the evidentiary record in front of me provides me with the evidence I need to "fairly and justly adjudicate the dispute."

[ 8 ] In my view, the answer is yes. It does not appear that there are genuine issues requiring a trial. The evidentiary record on this motion does not, in my view, establish the need for a trial.

[ 9 ] At the conclusion of the motion for summary judgment, I asked both counsel which party was legally responsible for any alleged Ecuadorean government error with respect to an alleged deficient health certificate. After the motion for summary judgment, counsel for BWI requested that she be permitted to make additional written submissions in this regard to the Court. As Solea agreed to this request and asked for an opportunity to make its own additional submissions, the Court accommodated the parties with respect to this request.

[ 10 ] The additional submissions of the parties with respect to the question the Court posed served to provide the Court with a focused summary of the positions of both parties on the merits of the motion for summary judgment.

[ 11 ] The Court agrees with the submissions of Solea that there is no evidence that there was a deficiency in the health certificate provided by the Ecuadorean government or consequently, that Solea failed to provide a timely or effective health certificate.

[ 12 ] Most importantly on this motion, there is no evidence that the reason BWI could not import the shrimp into Mexico is that Solea failed to provide a proper health certificate. The evidence supports the submission of Solea that the term “CFI” meant that the risk belonged to the buyer and that the responsibility for including the proper import documents was on BWI. As well, the email evidence of BWI shows that the reason for refusal to accept the shrimp was that BWI could not pay the fees at the port to release the containers. These fees were not paid by BWI.

[ 13 ] As well, BWI’s Skype conversations and emails do not raise the issue of any alleged defective health certificate.

[ 14 ] Further, BWI commenced an action for damages against its employee who was responsible for obtaining the proper import documentation.

[ 15 ] The claims of BWI that Solea promised to provide a “health certificate”, which is inconsistent with the terms of the agreement, was not proven further by the evidence on this motion. The issue of the deficiency of the health certificate is irrelevant because there is no proof that that is what caused damage to BWI and gave BWI a legal reason to refuse payment for the shipment of shrimp.

[ 16 ] There is, in my view, no evidence to support a valid defence of BWI to Solea’s Claim. Solea is therefore entitled to recover its proceeds of the sale.

[ 17 ] Solea requests pre and post judgment interest, but no submissions were made on this request.

[ 18 ] The motion for summary judgment is granted. The amount of $228,604.50 (U.S.) is awarded to Solea to be paid by BWI.

[ 19 ] Solea is entitled to prejudgment interest on such amount from July 17, 2014 to the date of judgment, as requested by Solea, as well as post-judgment interest to the date of payment at the statutory rate pursuant to the Courts of Justice Act.

Costs

[ 20 ] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Plaintiff’s submissions are to be delivered by 12:00 p.m. on December 20, 2016, and the Defendant’s submissions are to be delivered by 12:00 p.m. on December 30, 2016. Any reply submissions are to be delivered by 12:00 p.m. on January 9, 2017.

Pollak J.

Date: December 7, 2016