



COURT OF APPEAL FOR ONTARIO

CITATION: Gro-Bark (Ontario) Ltd. v. Eacom Timber
    Corporation, 2019 ONCA 341

DATE: 20190425

DOCKET: C65734

Doherty, Paciocco and Zarnett JJ.A.

BETWEEN

Gro-Bark (Ontario) Ltd., Intact Insurance Company
    and Aviva Canada Incorporated

Plaintiffs (Appellants)

and

Eacom Timber Corporation

Defendant (Respondent)

Matthew Wells and Janice Kim, for the appellants

Dana Eichler and Andrew Yolles, for the respondent

Heard and released orally: April 16, 2019

On appeal from the judgment of Justice M. D. Parayeski of
    the Superior Court of Justice, dated April 25, 2018.

REASONS FOR DECISION


[1]

In our view, this appeal must be allowed. The issue raised on the summary
    judgment motion turned on the interpretation of para. 20 of the Licence
    Agreement between Gro-Bark and Eacom.

[2]

The motion judge found in favour of the respondents interpretation and
    granted summary judgment on that basis. Unfortunately, his reasons provide
    little insight into the process that led to that conclusion. He said, at para.
    8:

I adopt and rely upon the analysis and statements of law
    contained in paragraphs 24 to 36 inclusive of the defendants factum. These
    paragraphs, in my view, satisfactorily answer the arguments raised by the
    plaintiffs.

[3]

With respect, the motion judge did not engage in the contractual
    interpretative exercise required by the issue raised on the motion. His
    reference to the analysis and statements of law contained in the respondents
    factum, standing alone, cannot be equated to an actual application of the
    principles of contractual interpretation to the circumstances as they existed
    in the particular case.

[4]

The trial judges adoption of the relevant parts of the respondents
    factum may or may not have been intended by the motion judge as a reference to
    the findings of fact urged by the respondent in those parts of its factum. Even
    if it was intended as an adoption of those facts, there is nothing in the
    reasons that explains what evidence the motion judge considered, or how his
    consideration of that evidence led him to come to the same opinion with respect
    to the facts as the respondent had urged. In short, there is simply no
    explanation for why the motion judge arrived at the conclusion he did.

[5]

Nor is this one of those cases in which the basis for the trial judges
    adoption of the facts as urged by the respondent can be seen as self-evident
    from the record. A review of the evidence in this record does not necessarily
    suggest that the findings urged by the respondent would necessarily be made.
    The evidence was far from one-way and was far from crystal clear. To the extent
    that the evidence could support the necessary factual findings required to
    grant judgment on the r. 20 motion, that evidence had to be carefully examined
    and the motion judge had to articulate the basis upon which he arrived at the
    findings he did. Neither happened here. Consequently, the appeal must be
    allowed.

[6]

The appeal is allowed. The decision below is set aside and the matter
    should proceed. Nothing said here is intended to comment one way or the other
    on any subsequent summary judgment motion that may be brought in respect of
    this issue.

[7]

The parties are agreed on costs. The appellants are entitled to costs on
    the motion of $10,000, inclusive of disbursements and relevant taxes, and the
    appellants are entitled to $10,000 as costs on the appeal, also inclusive of
    disbursements and relevant taxes.

Doherty J.A.

D.M. Paciocco J.A.

B. Zarnett J.A.


