Fairbanx Corporation v. Global Document Solutions Inc.
The Court allowed the appeal, set aside the summary judgment and remitted the matter to trial because the motion judge granted summary judgment despite conflicting evidence on the claimed amount without cross-examination and ignored the appellant's responsive affidavit, rendering the summary disposition unfair under...
Source-derived case information.
- Citation
- 2007 ONCA 889
- Parties
- Plaintiff/respondent: Fairbanx Corporation; Defendant/appellant: Global Document Solutions Inc.; Defendant/appellant: Doering & Brown Inc.; Defendant/appellant: Mark Welfred; Defendant/appellant: Lisa Welfred
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 18 December 2007
- Procedural Posture
- Collection / Appeal From Summary Judgment Motions Under Rule 76 (court of Appeal)
- Outcome
- Appeal allowed; summary judgment set aside; action remitted to trial; costs awarded to appellants
- Legal Topics
- Rule 76, Summary Judgment, Costs, Conflicting Affidavit Evidence, Cross Examination, Setting Aside Judgment, Remittal to Trial
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fairbanx Corporation
Plaintiff/respondent
Global Document Solutions Inc.
Defendant/appellant
Doering & Brown Inc.
Defendant/appellant
Mark Welfred
Defendant/appellant
Lisa Welfred
Defendant/appellant
Procedural Posture
Collection / Appeal From Summary Judgment Motions Under Rule 76 (court of Appeal)
Legal Issues
- 1 Whether the motion judge could lawfully grant summary judgment in the face of conflicting evidence without cross-examination
- 2 Whether the motion judge erred by ignoring the appellant's responsive affidavit challenging the respondent's accounting
- 3 Whether the summary judgment was fair and just under Rule 76
Ratio Decidendi
The Court allowed the appeal, set aside the summary judgment and remitted the matter to trial because the motion judge granted summary judgment despite conflicting evidence on the claimed amount without cross-examination and ignored the appellant's responsive affidavit, rendering the summary disposition unfair under Rule 76.
Court Disposition
Appeal allowed; summary judgment set aside; action remitted to trial; costs awarded to appellants
Orders
- Summary judgment set aside
- Action remitted to trial
Full Case Text
Judgment text and source record
1 paragraphs
Fairbanx Corporation v. Global Document Solutions Inc. Collection Decisions of the Court of Appeal Date 2007-12-18 Neutral citation 2007 ONCA 889 Docket numbers C47500, C47501 Judges Borins, Stephen; Feldman, Kathryn N.; Armstrong, Robert Patrick Subject Civil Decision Content CITATION: Fairbanx Corporation v. Global Document Solutions Inc., 2007 ONCA 889 DATE: 20071218 DOCKET: C47500 & C47501 COURT OF APPEAL FOR ONTARIO BORINS, FELDMAN and ARMSTRONG JJ.A. BETWEEN: FAIRBANX CORPORATION Plaintiff/Respondent and GLOBAL DOCUMENT SOLUTIONS INC., DOERING & BROWN INC., MARK WELFRED and LISA WELFRED Defendants/Appellants Mark Welfred, appearing in person, and on behalf of the appellants Shawn Tock for the respondent Heard: December 14, 2007 On appeal from the judgment of Justice William P. Somers of the Superior Court of Justice dated June 22, 2007. APPEAL BOOK ENDORSEMENT [1] This is an appeal from two motions for summary judgment under Rule 76 that were heard together. In our view, the motion judge committed two errors. He failed to explain how he was able to award summary judgment given the respondent’s conflicting evidence of the amount that it claimed from the appellant without cross-examination. In addition, he ignored the affidavit in response by Mark Welfred that took issue with the respondent’s accounting. In our view, under Rule 76 it was unfair and unjust to award summary judgment. We would allow the appeal, set aside the judgment and send the case to trial. [2] The appellants are entitled to their costs of the motions fixed at $3,500 and costs of the appeal fixed at $2,500, both inclusive of disbursements and G.S.T.