



COURT OF APPEAL FOR ONTARIO

CITATION:  Struik v. Dixie Lee Food Systems Ltd., 2014 ONCA
    433

DATE:  20140529

DOCKET: C57825

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

Maria Struik

Plaintiff (Respondent)

and

Dixie Lee Food Systems Ltd., Dixie Lee of Canada Inc., Dixie Lee Capital
    Corporation, and Joseph Murano


Defendants (Appellants)

Raman Dhillon, for the defendants (appellants)

Robert J. Reynolds, for the plaintiff (respondent)

Heard and orally released:  May 23, 2014

On appeal from the judgment of Justice Varpio of the
    Superior Court of Justice, dated September 30, 2013.

ENDORSEMENT

[1]

There were essentially two issues on the motion for partial summary
    judgment which gives rise to this appeal.  One issue was referred to as the
    guarantee issue and the other as the priority issue.  The motion judge
    decided both in favour of the respondent.

[2]

Counsel for the appellant points to two findings of fact that she says
    were necessary to the resolution of the two issues outlined above.  Counsel
    argues that neither finding was appropriately made within the confines of a
    Rule 20 motion.

[3]

We disagree.

[4]

On the first factual finding  the timing of the appellants transfer of
    certain franchises  the trial judge found that the transfer occurred in
    January 2012 as represented in the documents effecting the transfer.  In making
    that finding, the motion judge considered and rejected the appellants bald
    assertion that the transfer had in fact been made years earlier:  see paras.
    31-33.

[5]

In our view, a finding of fact based on unambiguous documents, most of
    which were authored by the appellant or on his behalf, is an appropriate
    exercise of the motion judges powers under Rule 20, especially in the absence
    of any explanation for the obvious conflict between those documents and the
    appellants current version of events.  We note that the appellant declined the
    motion judges invitation to adjourn the motion so that he could file material
    said to exist that would support his position on this point.

[6]

The second finding of fact  that Systems and Capital were related
    companies, thus making both liable on the guarantee provision in the settlement
    agreement, was based on uncontradicted and overwhelming evidence: see paras.
    34-35.  We see no reason to interfere with this finding.

[7]

In our view, the findings made by the motion judge were properly made on
    a Rule 20 motion and his determination on the motion for partial summary
    judgment cannot be disturbed on appeal.

[8]

The motion judge also dismissed a cross-motion brought by the appellant
    in which the appellant argued that the settlement agreement, when properly
    interpreted, did not permit the respondent, upon a breach of the agreement by
    the appellant, to both exercise her right to take an assignment of certain
    other franchises and obtain a court order requiring continued payment of the
    amounts proscribed under the settlement agreement.

[9]

In dismissing the cross-motion, the motion judge read and interpreted
    the agreement according to its terms and in the context of the events as
    described in the material before him.  We see no error in his determination
    that he could properly engage in this interpretative exercise on a summary
    judgment motion.  We also agree with his interpretation of the remedial
    provisions in the settlement agreement.  Even if commercial unreasonableness
    could somehow provide a basis for interpreting an agreement in a manner that
    contradicted the plain meaning of the agreement, we see nothing commercially
    unreasonable in a party bargaining for multiple remedies upon the default by
    the other party to the agreement.

[10]

The
    appellant also challenges the costs order made by the motion judge.  Leave to
    appeal is necessary.  We see no reason to grant leave to appeal on the costs
    question.  Nothing in those reasons raises issues which, in our view, need to
    be addressed by this court.

[11]

The
    appeal is dismissed.

[12]

Costs
    to respondent granted in the amount of $12,500, inclusive of relevant taxes and
    disbursements.

Doherty J.A.

Janet Simmons J.A.

M. Tulloch J.A.


