Date: 20040820
Docket: T-254-04
Citation: 2004 FC 1160
Ottawa, Ontario, this 20th day of August, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
Admiralty Action In rem against the Ship m/v "Camilla"
Admiralty Action in personam against Star Line Inc.
BETWEEN:
CORES WORLDWIDE INC.
Plaintiff
and
THE SHIP M/V "CAMILLA", STAR LINE INC.
AND ALL OTHERS INTERESTED IN THE SHIP "CAMILLA"
Defendants
REASONS FOR ORDER AND ORDER
[1] Cores Worldwide Inc. began this action to recover outstanding payments on a generator and pump it sold to the defendant Star Line Inc. in 2003. Star Line installed the generator on board the "Camilla". Star Line counterclaimed against Cores arguing that the generator was defective and much older than Cores said it was. Cores has moved for summary judgment.
[2] The parties agree on a number of matters. However, they dispute certain key facts. This prevents me from granting Cores' motion for summary judgment.
[3] The Court grants summary judgments in situations where there is no genuine issue for trial: Granville Shipping Co. v. Pegasus Lines Ltd. S.A., [1996] 2 F.C. 853. It cannot do so where there are serious factual issues to be resolved: Warner-Lambert v. Concord Confections Inc. 2001 FCT 139, [2001] F.C.J. No. 287. The applicant must present evidence showing that there is no factual issue for which a trial is necessary: Feoso Oil Ltd. v. "Sarla" (The), [1995] 3 F.C. 68 (C.A.); Irving Ungermann Ltd. v. Galanis (1991), 4 O.R. (3d) 545 (C.A.); Ruhl Estate v. Mannesmann Kienzle GmbH , [1997] F.C.J. No. 1345. On the other hand, the respondent must "put its best foot forward", in the sense that it must tender evidence showing that there is a genuine factual dispute. It cannot simply deny the applicant's claims or rely solely on the pleadings: Pizza Pizza v. Gillespie (1990), 75 O.R. (2d) 225; ITV Technologies Inc. v. WIC Television Ltd. 2001 FCA 11, [2001] F.C.J. No. 400.
[4] The parties agree on a number of facts. They agree that Cores sold Star Line a generator in July 2003 for a price of $65,000 (plus HST) and, later, a pump for $9,500 (plus HST). They agreed on a schedule of payments. Star Line did not make payments according to the agreed schedule, but it did pay Cores $30,000 in the ensuing months after the sales. An amount of $55,675 remains outstanding. Serious problems with the generator occurred in November 2003. Cores agreed to try to resolve the problem if Star Line paid up the outstanding balance. Star Line refused.
[5] But the parties disagree on a number of key facts. Cores says that the generator was in good working order at the time of sale. Star line says there were problems from the beginning. It got the unit up and running, but problems persisted over the ensuing months until, in November 2003, the generator had to be shut down. Cores says that Star Line ran the diesel generator on gas oil and that this was the cause of its problems. Star Line says that it used the proper fuel. Cores says that it told Star Line that the generator was used, and that the sale invoice confirms this. Star Line says that Cores described the generator as being new, or nearly new, at the time of the sale.
[6] These factual disputes must be resolved at trial. Cores has not shown that summary judgment should be issued on the evidence it has tendered.
ORDER
THIS COURT ORDERS that:
1. The motion for summary judgment is dismissed.
"James W. O'Reilly"
F.C.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-254-04
STYLE OF CAUSE: CORES WORLDWIDE INC. V. THE SHIP M/V "CAMILLA", STAR LINE INC. AND ALL OTHERS INTERESTED IN THE SHIP "CAMILLA"
PLACE OF HEARING: ST.JOHN'S, NL
DATE OF HEARING: Thursday, August 19, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: Friday, August 20, 2004
APPEARANCES BY:
Mr. John Mate FORTHE PLAINTIFF
Mr. Corwin Mills, Q.C. FOR THE DEFENDANTS
SOLICITORS OF RECORD:
PATERSON PALMER
St. John's' NL FOR THE PLAINTIFF
MILLS HUSSEY & PITTMAN
Clarenville, NL FOR THE DEFENDANTS