



COURT OF APPEAL FOR ONTARIO

CITATION: Wells Fargo Bank, N.A. v. Best Theratronics Ltd.,
    2014 ONCA 409

DATE: 20140520

DOCKET: C57783

Doherty, Epstein and Benotto JJ.A.

BETWEEN

Wells Fargo Bank, N.A.

Plaintiff (Respondent)

and

Best Theratronics Ltd.

Defendant (Appellant)

and

Best Medical
    International, Inc. and Huestis Machine Corporation

Applicants (Appellants)

and

Wells Fargo Bank, N.A.

Respondent (Respondent)

Eli S. Lederman and David Quayat, for the appellants

A. Irvin Schein and M. Maurer, for the respondent

Heard and orally released: May 14, 2014

On appeal from the judgment of Justice Pattillo of the Superior
    Court of Justice, dated September 12, 2013.

ENDORSEMENT

[1]

This was an appropriate case for summary judgment.

[2]

The motion judge was entitled to accept and act on the evidence of the
    respondents expert as to the proper interpretation of the commercial
    reasonableness standard in the
Uniform Commercial Code
.  The expert
    was qualified to give the opinion he gave.  His opinion did not, in our view,
    fly in the face of the language of the
Uniform Commercial Code
, and in
    particular s. 8.9(a)-607(c).  His opinion was consistent with that language: 
    see the motion judges reasons at para. 38.

[3]

It may be that the language in question was open to another
    interpretation.  However, the appellants chose not to put any expert evidence
    forward on the motion.  The motion judge was entitled to take that fact into
    account, both in weighing the evidence tendered by the respondent and in
    considering whether the case was an appropriate case for summary judgment.  He
    did exactly that.

[4]

We see no merit to the points made about the experts alleged bias and
    the impact that it should have on his evidence.  The motion judge was able to
    consider the points made about the experts alleged bias for what they were
    worth.  Not surprisingly he concluded that there was no credibility issue
    (para. 37) with respect to the experts evidence.

[5]

In light of our determination that the motion judge properly granted
    summary judgment on the basis of the material put forward by the respondent, we
    need not consider his reasons as they relate to the cause of action
estoppel
issue
.  The appellants correctly, in our
    view, accepted that if they did not succeed on the first point, it did not
    matter whether they succeeded on the second point.

[6]

The appeal is dismissed.

[7]

On agreement, the respondent will receive costs in the amount of
    $15,000, inclusive of disbursements and relevant taxes.

Doherty J.A.

Gloria Epstein J.A.

M.L. Benotto J.A.




