Emu Polishes Inc. v. Spenco Medical Corp.

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