



COURT OF APPEAL FOR ONTARIO

CITATION: Mariner Foods Ltd. v. Leo-Progress Enterprises
    Inc., 2017 ONCA 7 DATE: 20170105

DOCKET: C61380

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

Mariner Foods Ltd.

Plaintiff/Respondent

and

Leo-Progress Enterprises Inc.

Appellant/Defendant

Shahzad Siddiqui, for the appellant

Assunta Mazzotta, for the respondent

Heard: December 23, 2016

On appeal from the order of Justice Stewart of the Superior
    Court of Justice, dated November 6, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The appellant moves to admit fresh evidence that the respondent was
    under administration in the UK after the date of the statement of claim and in
    liquidation after the date of the judgment.

[2]

The appellant submits that the fresh evidence demonstrates that the
    respondent was not entitled to pursue the claim.

[3]

In our view, it is sufficiently clear from the exhibits to an affidavit
    filed in support of the motion for summary judgment that this was a subrogated
    claim brought by the respondents credit insurer. The claim was accordingly not
    caught by the bankruptcy.
Douglas v. Stan Fergusson Fuels Ltd.
, 2016
    ONSC 442.

[4]

The fresh evidence is therefore not capable of affecting the outcome and
    the application to admit it is dismissed. There is no other ground of appeal
    and the appeal is therefore dismissed.

[5]

Costs to the respondent fixed at $5,000, inclusive of disbursements and
    taxes.


