



COURT OF APPEAL FOR ONTARIO

CITATION: Bassett & Walker International Inc. v. Soleau
    International BVBA, 2017 ONCA 886

DATE: 20171120

DOCKET: C63170

Cronk, Pardu and Huscroft JJ.A.

BETWEEN

Bassett & Walker International Inc.

Appellant

and

Solea International BVBA

Respondent

Geoff R. Hall and Atrisha Lewis, for the appellant

Timothy J. Law and Assunta Mazzotta, for the respondent

Heard: November 16, 2017

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated December 7, 2016.

REASONS FOR DECISION

[1]

This appeal involves a dispute regarding the appellants purchase of
    frozen shrimp from the respondent.  The respondent, a trader of seafood
    products, purchased the shrimp from an Ecuadorian supplier for shipment to the
    appellant, a Toronto-based company, via an Ecuadorian shipping line for
    delivery to a port in Mexico where the goods were to clear Mexican customs. 
    Some of the documents pertaining to the sale stipulate that Belgian law applies
    to disputes arising out of the contract.  Others contain no governing law
    provisions.

[2]

The appellant appeals from a summary judgment holding it liable to the
    respondent for the full unpaid purchase price for the shrimp ($228,604.50 US),
    plus prejudgment interest in accordance with the
Courts of Justice Act
,
    R.S.O.1990, c. C. 43.

[3]

The parties appear to have assumed that the contract was governed by
    domestic Ontario law. No issue as to the law governing the contract was raised
    before the motion judge. No doubt for that reason, the motion judge proceeded
    to determine the appellants liability as if it was governed by the common law
    of Ontario.

[4]

It is unclear as to how the issue of the appellants alleged liability
    for the outstanding purchase price for the shrimp could be determined without
    first ascertaining the proper law of the contract  in particular, whether the
International
    Sale of Goods Act
, R.S.O. 1990, c. I.10 and the United Nations Convention
    on Contracts for the International Sales of Goods, set out in the Schedule to
    the Act, apply in the circumstances of this case and, if so, to what effect.

[5]

We note that Ontario, Belgium, Mexico and Ecuador have all ratified and
    acceded to the Convention.  The Convention applies to contracts of the sale of
    goods  with certain exemptions  where, as here, the parties have places of
    business in different contracting states.

[6]

Before this court, the parties now acknowledge that the Convention
    applies to the contract at issue.

[7]

The question of the proper law of the contract is thus a threshold issue. 
    The matter not having been raised before or considered by the motion judge, we
    cannot be certain that her analysis of the issues in contention and her
    conclusions on those issues might not have been different had the proper law of
    the contract and its application here been fully argued before her.

[8]

In these circumstances, the summary judgment cannot stand.

[9]

The appeal is allowed, the summary judgment is set aside and the matter
    is remitted to the motion judge for a new hearing on the parties competing
    summary judgment motions.  At that new hearing, the parties may supplement the
    record, if so advised, to address the question of the proper law of the
    contract and its application to the facts of this case, in accordance with any
    directions as may be provided by the motion judge.

[10]

As
    the parties accept, this is not an appropriate case for an award of the costs
    of the appeal and cross-appeal.

E.A. Cronk J.A.

G. Pardu J.A.

Grant Huscroft J.A.


