



COURT OF APPEAL FOR ONTARIO

CITATION: Broadgrain Commodities Inc. v. Continental Casualty
    Company (CNA Canada), 2018 ONCA 438

DATE: 20180510

DOCKET: C64253

Doherty and Pepall JJ.A. and Gray J. (
ad hoc
)

BETWEEN

Broadgrain Commodities Inc.

Plaintiff

(Appellant)

and

Continental
    Casualty Company

carrying on business as CNA
    Canada

Defendant

(Respondent)

Rui Fernandes, James Manson, and Sean Lawler, for the
    appellant

Marc Isaacs and Hilary Weise, for the respondent

Heard: April 27, 2018

On appeal from the judgment of Justice Patrick J. Monahan
    of the Superior Court of Justice, dated August 3, 2017, with reasons reported
    at 2017 ONSC 4721.

REASONS FOR DECISION

[1]

The appellant, Broadgrain Commodities Inc., sold 26 containers of sesame
    seeds to Beidahuang Grain Group Co. Ltd. (Beidahuang).  They were to be shipped
    CIF (cost, insurance, freight) from Tin Can Island in Nigeria to Xingang in China.

[2]

Under the contract between the appellant and Beidahuang:

·

title to the goods passed to Beidahuang on its payment to the
    appellant;

·

the risk of loss or damage to the goods passed to Beidahuang when
    the goods were stuffed and sealed for transport;

·

the appellant was to purchase insurance on behalf of Beidahuang
    to insure against Beidahuangs risk of loss or damage to the goods during
    transit; and

·

Beidahuang granted the appellant a security interest in the
    goods.

[3]

The goods were loaded on board the transport vessel on October 15, 2014. 
    Beidahuang paid the appellant for the goods on December 12, 2014.  The goods
    arrived in China on December 17, 2014.  The goods had been damaged during
    transit, but the timing of the damage could not be determined.  The cargo was
    unfit for human consumption and was sold for salvage.  Beidahuang kept the
    salvage proceeds.

[4]

The goods were insured by the respondent, Continental Casualty Company
    carrying on business as CNA Canada, under a policy of marine insurance in
    favour of the appellant.  The appellant sought compensation from the respondent
    under the insurance policy, but the respondent denied coverage.  The appellant
    then sued the respondent, who subsequently brought a motion for summary
    judgment.

[5]

The motion judge granted summary judgment dismissing the appellants
    action.  He reasoned that the appellant had an insurable interest in the
    shipped goods.  However, he concluded that the appellant did not sustain any
    loss as it was paid in full by Beidahuang.  In doing so, he considered the
    appellants bald assertion, with no supporting documentation or detail, that
    the appellant was short-paid on subsequent shipments to Beidahuang, to be
    inadequate.  As such, there was no genuine issue requiring a trial.

[6]

The appellant appeals from that dismissal and also seeks to admit fresh
    evidence.  The respondent cross-appeals the motion judges finding that the appellant
    had an insurable interest.

[7]

The motion judge was alive to the principles governing summary judgment
    motions that were described in
Hryniak v. Maudlin
, 2014 SCC 7, [2014]
    1 S.C.R. 87.  On a summary judgment motion the parties are expected to put
    their best foot forward and the court will assume that all necessary evidence
    has been tendered.  See
Chernet v. RBC General Insurance Company
, 2017
    ONCA 337, 11 M.V.R. (7th) 1, at para. 12; and
Airex Inc. v. Ben Air System
    Inc
.
, 2017 ONCA 390, 48 C.B.R. (6th) 200, at para. 17.  A motion
    judge is entitled to presume that the evidentiary record is complete and there
    will be nothing further if the issue were to go to trial:
Dawson v.
    Rexcraft Storage & Warehouse Inc
.
, 111 O.A.C. 201, at para. 17;
Sweda Farms Ltd. v. Egg Farmers of Ontario
, 2014 ONSC 1200, at paras. 27,
    33-34, affd 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No.
    97; and
Tim Ludwig Professional Corporation v. BDO Canada LLP
, 2017
    ONCA 392 at para. 54.  A motion judge is not required to resort to the summary
    judgment enhanced powers to remedy a partys evidentiary shortcomings.

[8]

It is of assistance to put the appellants lack of evidence of loss in
    context.

[9]

The appellant pleaded that the shipments were damaged by contact with
    water, resulting in a loss of $550,081.38 USD to the appellant.  The
    appellants affidavit of documents and examination for discovery were silent on
    any evidence of loss.  The issue of a loss based on subsequent short-payments
    by Beidahuang was first raised in an affidavit filed in response to the
    respondents summary judgment motion.  The affidavit was sworn by the
    appellants representative, Taimy Cruz.  As mentioned, the motion judge found
    that she baldly asserted that the appellant was short-paid on subsequent
    shipments to Beidahuang.  As stated by the Supreme Court in
Guarantee Co.
    of North America v. Gordon Capital Corp
.
, [1999] 3 S.C.R. 423, at
    para. 31: [A] self-serving affidavit is not sufficient in itself to create a
    triable issue in the absence of detailed facts and supporting evidence (citations
    omitted).

[10]

Here,
    no evidence of any kind was filed in support of the purported short-payments:
    no dates, no amounts, no invoices, no credit statements, nothing.  Nor was
    there any explanation given for the absence of any supporting details or
    documentation. Despite having the opportunity to provide details and
    documentation of this alleged loss, including an undertaking given on Ms.
    Cruzs cross-examination, none was forthcoming.  Nor was the respondent advised
    of these alleged offsetting payments until the litigation was commenced.

[11]

The
    appellant argues that the expert evidence upon which it relies provides that it
    is common practice for buyers and sellers who frequently transact with one
    another to agree to offset claim monies against future transactions.  However,
    expert opinion of any practice in the industry to short-pay on subsequent
    shipments cannot serve to remedy the appellants failure to provide any
    evidence of loss, be it that of the appellant or that of Beidahuang.

[12]

There
    was no palpable and overriding error, and deference is owed to the motion
    judges conclusion that the appellant was paid in full and that there was no
    credible evidence to the contrary.

[13]

For
    these reasons, we would dismiss the appeal.

[14]

Given
    this disposition, it is unnecessary to address the cross-appeal of the
    respondent.  In oral submissions, the respondent conceded that resolution of
    the first issue in its favour rendered the subject matter of the cross-appeal
    moot.  Furthermore, the argument before this court was advanced on a different
    basis than the argument before the motion judge.  The motion judge addressed
    whether the appellant had an insurable interest in the goods notwithstanding
    the transfer of the risk of loss.  Before us, the issue devolved into a
    question of whether the appellant had standing to pursue a loss incurred by Beidahuang.
     Quite apart from the fact that the loss is not so characterized in the
    appellants statement of claim, it would be inappropriate to decide an issue on
    a basis raised for the first time before this court.

[15]

The
    motion to admit fresh evidence also must fail.  The second McGregor affidavit,
    which the appellant seeks to admit, was available at the time of the motion but
    was not filed.  More importantly, it would not have affected the outcome.

[16]

For
    these reasons, the appeal and the motion to admit fresh evidence are dismissed,
    and the cross-appeal is dismissed as being moot.  The appellant is to pay the
    respondent $38,000 in costs of the appeal on a partial indemnity scale inclusive
    of disbursements and applicable taxes.

Doherty J.A.

S.E. Pepall J.A.

D.K. Gray J. (ad hoc)


