Court of Appeal for Ontario

CITATION: Van Sun v. Woodbine Pontiac Buick Inc., 2013 ONCA 107

DATE: 20130220

DOCKET: C54884

BEFORE: Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Lenno Van Sun

Plaintiff/Appellant

and

Woodbine Pontiac Buick Inc. and Erin Mills Acura of Mississauga

Defendants/Respondents

COUNSEL:

Matt W. Mulholland, for the appellant

Andy C. Jairam, for the respondent, Woodbine Pontiac Buick Inc.

HEARD: February 19, 2013

On appeal from the judgment of Justice Brian P. O’Marra of the Superior Court of Justice, dated December 9, 2012.

APPEAL BOOK ENDORSEMENT

[1] We have not been persuaded that the trial judge made any reversible error. The only evidence was that the respondent was unaware that the vehicle had been in an accident. There was no evidence of negligence on the part of the respondent. The respondent’s witnesses were entitled to say what they had done in this transaction, even if they strayed into opinion. This case was pleaded as a negligence case and dealt with at trial as a negligence case, not breach of contract. The appellant failed to show any negligence.

[2] Accordingly, the appeal is dismissed with costs fixed at $10,000 inclusive of HST and disbursements.