2011 NBCA 42, 2011 NBCA 42

COURT OF APPEAL OF NEW BRUNSWICK 136-10-CA ZAVCOR TRUCKING LIMITED (Plaintiff) APPELLANT ZAVCOR TRUCKING LIMITED (Demanderesse) APPELANTE - and - - et - UPM-KYMMENE MIRAMICHI INC. and UPM-KYMMENE INC. (Defendants) RESPONDENTS UPM-KYMMENE MIRAMICHI INC. et UPM-KYMMENE INC. (Défenderesses) INTIMÉES Zavcor Trucking Limited v. UPM-Kymmene Miramichi Inc. and UPM-Kymmene Inc., 2011 NBCA 42 Zavcor Trucking Limited c.

UPM-Kymmene Miramichi Inc. et UPM-Kymmene Inc., 2011 NBCA 42 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: October 4, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 4 octobre 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: March 24, 2011 Appel entendu : Le 24 mars 2011 Judgment rendered: March 24, 2011 Jugement rendu : Le 24 mars 2011

Counsel at hearing: For the appellant: Myer Rabin For the respondents: Debora Lamont Avocats à l’audience : Pour l’appelante : Myer Rabin Pour les intimées : Debora Lamont THE COURT The appeal is dismissed with costs of $5,000. LA COUR Rejette l’appel avec dépens de 5 000 $.

The following is the judgment delivered by THE COURT (Orally) [1] On October 4, 2010, a judge of the Court of Queen’s Bench dismissed an action Zavcor Trucking Limited brought against UPM-Kymmene Miramichi Inc. and UPM-Kymmene Inc. on grounds that Zavcor “dismally failed to establish facts or raise a presumption or at least bring enough evidence to allow this Court to infer the facts at issue.” In ruling as he did, the judge noted that “Zavcor did not comply with the body of law regulating the admissibility of what was offered as proof into the record of this proceeding and actually called little evidence.” This statement was made in light of a number of evidentiary rulings the judge had made at trial refusing to admit evidence tendered on behalf of Zavcor. [2] Zavcor appeals and seeks a new trial on grounds the trial judge erred in his evidentiary rulings.

In particular, the trial judge refused to admit a significant bundle of documents purporting to be invoices, load confirmation documents and bills of lading relating to the carriage of various goods. These documents were submitted to the Court without any sufficient foundation to prove their relevance and even, in some cases, their authenticity. Moreover, some of the documents were not even legible, (as for example document A-21 in the bundle marked 2 for identification at trial). [3] The trial judge refused to admit these documents on the grounds that without a proper foundation they constituted hearsay.

We do not find

any error with that ruling. The documents were not admissible in the form presented and without a proper foundation as to their relevance and authenticity. [4] At the hearing of the appeal, counsel for Zavcor acknowledged that, if the bundle of documents in issue was inadmissible, the Plaintiff’s case had not been proven at trial.

In light of this admission, it becomes moot for us to rule on whether or not the judge erred in also rejecting two other critical items of evidence that are in issue in this appeal, that is an affidavit of an analyst in the Carrier Sanctions and Investigative Branch of the Ministry of Transportation of Ontario and a letter from Metro Canada Logistics Inc. [5] Since we conclude the judge did not err in his evidentiary ruling regarding the bundle of documents, there was indeed insufficient evidence at trial for the judge to rule in favour of the Plaintiff.

The judge was therefore right to dismiss the action. [6] For these reasons, the appeal is dismissed with costs of $5,000 . ____________________________________ J.C. MARC RICHARD, J.A. _____________________________________ B. RICHARD BELL , J.A. ______________________________________ BRADLEY V. GREEN, J.A.