



COURT OF APPEAL FOR ONTARIO

CITATION: Eagle Professional Resources
    Inc. v. MacMullin, 2013 ONCA 639

DATE: 20131021

DOCKET: C57054

Cronk, Rouleau and Tulloch JJ.A.

BETWEEN

Eagle Professional Resources Inc.

Appellant (Plaintiff)

and

Matt MacMullin, Shane Reiffenstein, Matthew
    Emberley and Maplesoft Group

Respondents (Defendants)

James C. Morton, for the
    appellant

George J. Karayannides and
    Laura Brazil, for the respondents

Heard and released
    orally: October 15, 2013

On appeal from the judgment of Justice Robert. F.
    Goldstein of the Superior Court of Justice, dated April 5, 2013.

ENDORSEMENT

[1]

The appellant argues that the motion judge erred in allowing the
    respondents' summary judgment motion and in dismissing the claim.

[2]

In the appellants submission, the factual issues raised require a trial
    to be resolved because there is some conflicting evidence and findings of
    credibility are needed.

[3]

We disagree. This was a straightforward case. The appellants statement
    of claim and material filed in response to the motion consisted of bald
    allegations and related a few specific incidents that raised suspicion as to
    the possibility that the respondents had acted in breach of their non-competition
    and non-solicitation obligations.

[4]

The appellants bald allegations were denied by each of the individual
    respondents. Each of the specific incidents raised by the appellant was fully
    explained by the respondents.

[5]

The appellant did not cross-examine the respondents or otherwise
    challenge the explanations they tendered. However, the failure to cross-examine
    did not mean that there were live issues for trial, despite the appellants
    suggestion to the contrary.

[6]

A party responding to a motion for summary judgment must put his best
    foot forward. In the absence of any challenge by the appellant to the
    explanations proffered by the respondents, the motion judge was able to decide
    the motion for summary judgment without having to make any findings of
    credibility.

[7]

The full appreciation test was met without the need for a trial.

[8]

For these reasons, the appeal is dismissed.

[9]

Costs of the appeal to the respondents fixed in the amount of $10,000,
    inclusive of disbursements and taxes.

E.A.
    Cronk J.A.

Paul
    Rouleau J.A.

M.H. Tulloch J.A.


