



COURT OF APPEAL FOR ONTARIO

CITATION: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014
    ONCA 878

DATE: 20141205

DOCKET: C58523

Laskin, Blair and Pepall JJ.A.

BETWEEN

Sweda Farms Ltd., Best Choice Eggs Ltd., and
    Tilia Transport Inc.

Plaintiffs (Appellants)

and

Egg Farmers of Ontario, Harry Pelissero,
Burnbrae Farms Limited, Burnbrae Holdings Inc., Maple Lynn
    Foods Limited
, L.H. Gray & Son Limited, William Harding Gray, John Klei,
    and the Estate of Johannes Klei

Defendants (
Respondents
)

Donald Good and Christopher Olutola, for the appellants

P. David McCutcheon and Chole Snider, for the
    respondents

Heard and released orally: December 1, 2014

On appeal from the judgment of Justice David L. Corbett
    of the Superior Court of Justice, dated February 24, 2014.

ENDORSEMENT

The Fresh Evidence Motion

[1]

In accordance with the order of LaForme J.A. the appellant sought leave
    to introduce fresh evidence, consisting of the affidavits of Messrs. Lind and Bourdeau,
    and numerous additional documents.  We dismiss the motion.  As Mr. Good
    candidly acknowledged, the proposed fresh evidence does not meet the test set
    out by this court for the admission of fresh evidence on appeal. Moreover, the
    proposed evidence is not needed to argue the appeal.  Accordingly, it is not in
    the interests of justice to admit the evidence.

The Main Appeal

[2]

On the main appeal, the appellants principal submission is that the
    granting of summary judgment is premature. In counsels words, repeated several
    times during oral argument, the motion judge had only two percent of the
    evidence.

[3]

We do not accept the appellants submission.  The motion judge gave
    thorough and careful reasons for his decision.  He applied both the test for
    summary judgment set out by this court in
Combined Air
, and by the
    Supreme Court of Canada in
Hryniak
.

[4]

Burnbrae delivered an affidavit of documents in May 2012.  The summary
    judgment motion was not argued until 17 months later in October 2013.  If the
    appellants complaint was that Burnbrae had not complied with its disclosure
    obligations, then the appellants were obliged to take steps to compel
    production. They did not do so.  Accordingly, they did not meet their
    obligation to put their best foot forward on the motion.

[5]

Even though the appellants did not do so however, the motion judge
    considered the areas of missing evidence and concluded for three reasons that
    this missing evidence was unlikely to assist the appellants.

1. The so-called missing evidence was largely connected to L.H. Gray
    not Burnbrae;

2. There was no reason to believe that the egg-grading records sent to
    Sweda were any different from those Burnbrae sent to other egg producers; and

3. The motion judge was not prepared to infer that the missing
    production from Burnbrae would establish anything material that was not
    already in evidence.

We see no error in the motion judges finding on the
    alleged missing evidence or his reasons for that finding.

[6]

Finally, as the motion judge observed, the appellants did not even put
    forward evidence of those aspects of their claim within their own knowledge.

[7]

Accordingly, the main appeal is dismissed.

Costs

[8]

The appellants seek leave to appeal the motion judges costs order.  He
    fixed costs in an amount that he considered reasonable.  In the light of the
    way this litigation has been conducted (see para. 15 of the motion judges
    endorsement on costs), we see no error in the exercise of his discretion. 
    Accordingly, leave to appeal costs is refused.

Conclusion

[9]

The appeal and the two leave motions are dismissed with costs, inclusive
    of disbursements and applicable taxes, fixed at $85,000.

John Laskin J.A.

R.A. Blair J.A.

S.E. Pepall J.A.


