The Plaintiff (the “Supplier”) entered into a Marketing and Distributorship Agreement (“MDA”) with the Defendants (the “Distributor”) who subsequently assigned their rights under the MDA to the remaining Defendants (the “Assignees”). The dispute regarded which of the parties had the right to market, sell and distribute the Supplier’s nutritional products in the United States. The Assignees and the Supplier both brought Applications for Summary Judgment, the issue being whether the MDA was validly assigned. The Distributor did not participate in the Summary Judgment Applications.

The Court referred to Rules 7.2 through 7.4 which set out the Summary Judgment procedure and stated that the test to be applied is whether it is plain and obvious that the Action cannot succeed. Miller J. held that the plain and ordinary meaning of the language in the MDA required the consent of both the Distributor and the Supplier be obtained for any valid assignment. The undisputed evidence was that neither the Assignees nor the Distributor ever contacted the Supplier to obtain its permission for the assignment. Further, the evidence put forward by the Assignees indicated that the Distributor did not contract out of their contractual rights and obligations, but were working in partnership with the Assignees. Therefore, Miller J. held that it was plain and obvious that there was no assignment of the MDA and granted the Supplier’s Application for a declaration that the assignment was null and void. The Summary Judgment Application brought by the Assignees was dismissed.