COURT OF APPEAL FOR ONTARIO

CITATION: Butler v. Kia Canada Inc., 2023 ONCA 853

DATE: 2023-12-20

DOCKET: COA-22-CV-0432

Before: Hourigan, Miller and Nordheimer JJ.A.

BETWEEN

Peter Butler

Plaintiff (Appellant)

and

Kia Canada Inc. and James Campbell Services Ltd.

Defendants (Respondents)

Counsel:

Michael Switzer, for the appellant

Megan Keenberg and Jennifer Hand, for the respondents

Heard and released orally: December 15, 2023

On appeal from the judgment of Justice Howard Leibovich of the Superior Court of Justice, dated November 17, 2022, with reasons reported at 2022 ONSC 6294.

REASONS FOR DECISION

[1] The appellant brought a simplified procedure action against Kia Canada Inc. related to his purchase of a Kia Sorento in 2016. The action was dismissed. The trial judge found that there was no breach of the sales contract, no breach of the Sale of Goods Act, R.S.O. 1990, c. S.1, and that alternatively, if there was a breach, the test for rescission was not met and the appellant failed to prove any compensable damages.

[2] We are largely in agreement with the trial judge’s reasons and see no basis for appellate interference. He made factual findings that were well-supported by the record. In addition, the trial judge found that the appellant was not credible and that his evidence could not be relied on absent independent confirmation. That assessment was also well-supported by the record.

[3] Regarding the trial judge’s alleged error about the defects in the vehicle, we see no palpable and overriding error. His findings in this regard were based on the evidence, his credibility assessment of the appellant, and an admission in the appellant’s pleading. We agree with the trial judge’s assessment that the appellant failed to adduce sufficient credible evidence regarding the alleged problems with the vehicle.

[4] We also see no error in the trial judge’s findings regarding breach of contract. Kia provided a warranty for the vehicle wherein it undertook to repair any covered defects. The evidence established that Kia honoured its obligations in that regard.

[5] With respect to the arguments regarding the breach of the Sale of Goods Act, we leave for another case the consideration of the appellant’s submissions about the reach of that piece of legislation because we agree with the trial judge’s conclusion that the appellant has not proved any compensable damages. He correctly dismissed the lost wages claim as it was contrary to the appellant’s declared income. In addition, the appellant failed to lead evidence regarding any alleged loss on the sale of the vehicle.

[6] The appeal is dismissed. The appellant will pay the respondent its costs of the appeal in the agreed upon all-inclusive amount of $20,000.

“C.W. Hourigan J.A.”

“B.W. Miller J.A.”

“I.V.B. Nordheimer J.A."