Emu Polishes Inc. v. Spenco Medical Corp., 2005 FCA 130

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