Emu Polishes Inc. v. Spenco Medical Corp.
The trial judge validly declined to grant summary judgment because he could not, on the whole of the evidence, find the facts necessary to decide the identified issues and the affidavits raised credibility and weighing issues; the appellant failed to demonstrate any reviewable error, so the appeal is dismissed.
Source-derived case information.
- Citation
- 2005 FCA 130
- Parties
- Appellant: Emu Polishes Inc.; Respondent: Spenco Medical Corporation
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 12 April 2005
- Procedural Posture
- Appeal From Federal Court Order on Summary Judgment Motion / Federal Court of Appeal Judgment (oral Reasons)
- Outcome
- Appeal dismissed with costs.
- Legal Topics
- Summary Judgment, Genuine Issue for Trial, Evidentiary Credibility, Discretion to Refuse Summary Disposition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emu Polishes Inc.
Appellant
Spenco Medical Corporation
Respondent
Procedural Posture
Appeal From Federal Court Order on Summary Judgment Motion / Federal Court of Appeal Judgment (oral Reasons)
Legal Issues
- 1 Whether the trial judge erred in refusing to grant summary judgment under Rule 216(3) of the Federal Courts Rules
- 2 Whether the judge could on the whole of the evidence find the facts necessary to dispose of the identified genuine issues
- 3 Whether issues of credibility and the need to weigh evidence justified declining summary judgment
Ratio Decidendi
The trial judge validly declined to grant summary judgment because he could not, on the whole of the evidence, find the facts necessary to decide the identified issues and the affidavits raised credibility and weighing issues; the appellant failed to demonstrate any reviewable error, so the appeal is dismissed.
Court Disposition
Appeal dismissed with costs.
Orders
- Appeal dismissed with costs in any event of the cause.
Full Case Text
Judgment text and source record
1 paragraphs
Emu Polishes Inc. v. Spenco Medical Corp. Court (s) Database Federal Court of Appeal Decisions Date 2005-04-12 Neutral citation 2005 FCA 130 File numbers A-378-04 Decision Content Date: 20050412 Docket: A-378-04 Citation: 2005 FCA 130 CORAM: NOËL J.A. SEXTON J.A. MALONE J.A. BETWEEN: EMU POLISHES INC. Appellant and SPENCO MEDICAL CORPORATION Respondent Heard at Ottawa, Ontario, on April 12, 2005. Judgment delivered from the Bench at Ottawa, Ontario, on April 12, 2005. REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. Date: 20050412 Docket: A-378-04 Citation: 2005 FCA 130 CORAM: NOËL J.A. SEXTON J.A. MALONE J.A. BETWEEN: EMU POLISHES INC. Appellant and SPENCO MEDICAL CORPORATION Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on April 12, 2005) NOËL J.A. [1] In our respectful view, Kelen J. after having identified two genuine issues for trial, was not bound to dispose of them unless he could "on the whole of the evidence find the facts necessary" to do so (Rule 216(3) of the Federal Courts Rules). After reviewing the evidence Kelen J. concluded that he was not in a position to do so and the appellant has been unable to show that he thereby committed a reviewable error. [2] The class of evidentiary issues which allows a trial Judge to decline to grant summary judgment, once a genuine issue for trial has been identified, is not restricted by Rule 216(3). In this case, Kelen J. found that the affidavits gave rise to issues of credibility and required a weighing of the evidence, a conclusion that was open to him based on the evidence to which the appellant has taken us. This was sufficient to justify Kellen J.'s exercise of discretion in declining to grant summary judgment. [3] The appeal will be dismissed with costs in any event of the cause. "Marc Noël" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-378-04 STYLE OF CAUSE: EMU POLISHES INC. v. SPENCO MEDICAL CORPORATION APPEAL FROM AN ORDER OF KELEN, J. DATED JULY 6, 2004, FILE NO. T-1021-03 PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: APRIL 12, 2005 REASONS FOR JUDGMENT OF THE COURT: NOËL J.A. SEXTON J.A. MALONE J.A. DELIVERED FROM THE BENCH BY: NOËL J.A. APPEARANCES: Mr. Brian Crane, Q.C. FOR THE APPELLANT Mr. Bayo Odutola Ms. Sylvie-Émanuelle Bourbonnais Mr. Scott Miller FOR THE RESPONDENT Ms. Sharon Griffin SOLICITORS OF RECORD: Odutola Professional Corporation FOR THE APPELLANT Ottawa, Ontario Marusyk, Miller & Swain LLP FOR THE RESPONDENT Ottawa, Ontario