





CITATION:
Geodis Wilson Canada Ltd. v. J & B Furniture
          Inc., 2011 ONCA 678



DATE: 20111031



DOCKET: C53579



COURT OF APPEAL FOR ONTARIO



Blair and Juriansz JJ.A. and Pepall J. (
ad hoc
)



BETWEEN



Geodis Wilson Canada Ltd.



Plaintiff (Respondent)



and



J & B Furniture Inc.



Defendant (Appellant)



Patrick Di Monte, for the appellant



Christopher Afonso, for the respondent



Heard:
October 27, 2011



On appeal from the order of Justice P. Theodore Matlow of the
          Superior Court of Justice dated March 16, 2011.



APPEAL BOOK ENDORSEMENT



[1]

Both parties agree that the motion judge erred in granting a partial
    award for storage and detention/demurrage charges in an arbitrary amount that
    appears to have no basis in the record and in sending the balance of the
    storage/detention/demurrage charges dispute to trial.  The appeal is therefore
    allowed and that portion of the summary judgment is set aside.

[2]

The real debate is over what flows from that decision.  The appellant
    submits that the entire matter of the disputed changes should be sent to
    trial.  Geodis Wilson cross-appeals arguing that it should be entitled to
    summary judgment for the full amount of the disputed charge claimed.  We agree
    with Geodis Wilson.

[3]

On the materials before us, the defence raised before the motion judge
    was that Geodis Wilson was not entitled to claim the disputed charges at all. 
    The reasonableness of the quantum of the claim or the fact that the plaintiff
    had not proved its invoices are not put in play on the record.  The defendant is
    obliged to put its best foot forward on a motion for summary judgment and in
    our view the appellant has failed to do so here.  Once it has been establish
    that Geodis Wilson was entitled to a lien  as the motion judge found  the
    disputed charges followed and in the absence of an evidentiary basis as to
    dispute or to quantum, we see no triable issue with respect to the disputed
    charges.

[4]

The cross-appeal is allowed and Goedis Wilson is entitled to judgment in
    the full amount claimed for unpaid storage and detention/demurrage charges.  We
    note that the cross-appeal was heard pursuant to s. 6(2) of the
Courts of
    Justice Act
.

[5]

Costs to Geodis Wilson fixed in the amount of $3000 all inclusive, as
    agreed.


