



COURT OF APPEAL FOR ONTARIO

CITATION: Fritz Marketing Inc. v. Metz, 2015 ONCA 410

DATE: 20150609

DOCKET: C59617

Feldman, Hourigan and Pardu JJ.A.

BETWEEN

Fritz Marketing Inc.

Respondent (Plaintiff)

and

Joseph Henry Metz
, Elmira
    Bag & Burlap Ltd.,
Ontario Bag Company Ltd.
and GX Packaging Canada Ltd.

Appellants (Defendants)

Wade W. Sarasin, for the appellants

James R. Smith, for the respondent

Heard: June 3, 2015

On appeal from the judgment of Justice Price of the Superior
    Court of Justice, dated October 10, 2014, and amended October 24, 2014.

ENDORSEMENT

[1]

The appellant, Joseph Henry Metz, appeals from the order of Price J.
    granting summary judgment against him personally for amounts owing on invoices
    for bags supplied by the respondent to Mr. Metzs two companies, Elmira Bag
    & Burlap Ltd. and GX Packaging Canada Ltd.  He submits that the motion
    judge erred by making findings of fact that determined liability based only on
    the motion record, which included cross-examinations on the affidavits filed,
    and without resorting to the powers under Rule 20 to order the trial of an
    issue or to hold a mini-trial on genuine issues for trial.

[2]

He submits that there were two genuine issues that required a trial: 1)
    whether the appellant had agreed to be personally liable for the debts of the
    companies; and 2) whether he had agreed that the monies that were paid in
    respect of the new purchases made on behalf of two of the companies, Elmira Bag
    & Burlap Ltd. and GX Packaging Canada Ltd, were to be credited first to the
    old debt of another of the companies, Ontario Bag Company Ltd. Although he
    disputed any direct connection with Ontario Bag, he acknowledged his connection
    on cross-examination.

[3]

In our view, the motion judge made no error either in the procedure he
    followed or in his conclusions based on the record.

[4]

His reasons refer to the evidence that amply supports his conclusions
    that the appellant agreed to be personally liable for the past and future debts
    of his companies in order to allow him to order and receive more bag inventory
    from the respondent.  Further, the record, which includes extensive documents
    as well as affidavits and cross-examination on them, is clear that the
    appellant knew and understood that the outstanding Ontario Bag Company Ltd.
    debt was being paid down before the new invoices.

[5]

We agree with the motion judges conclusion that there was no need to
    order the hearing of any further evidence on the issues.

[6]

The appellant submits that the motion judges decision did not dispose
    of the counterclaim for damages for defective bags. Although the motion judge
    did not make final orders dismissing both the appellants counterclaims and the
    respondents claims against Elmira Bag & Burlap Ltd. and GX Packaging
    Canada Ltd on the invoices, it is clear from his reasons that he made those
    findings and that his intention was that the summary judgment order would
    determine and deal with all issues raised by the parties. His conclusion that
    there was no sustainable set-off for defective bags was unassailable.  If an
    amendment to the order is needed, the respondent can obtain it in the Superior
    Court.

[7]

The appeal is therefore dismissed, with costs fixed in the agreed amount
    of $19,000, inclusive of disbursements and HST.

K. Feldman J.A.

C. W. Hourigan J.A.

G. Pardu J.A.


