Divisional Court File No. 03-BN-6536
Small Claims Court File No. 01-BN-8460
DATE: 20031124
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Applewood Holdings Inc. v. Brian Bonneville
BEFORE: Mossip J.
COUNSEL: Paul H. Voorn, for the Appellant
Brian Bonneville, in person
E N D O R S E M E N T
Decision
[1] The appeal is granted. As it provides for in s. 134 of the Courts of Justice Act, an order shall issue as per the draft submitted by Appellant’s counsel.
Reasons
[2] The standard of review on issues of law is correctness. On findings of fact the Court may only interfere if the trial judge has made a manifest error.
[3] In my view, the trial judge ignored the clear and unambiguous terms of the guarantee which the respondent executed and which the appellant was entitled to rely on.
[4] The respondent did not argue at trial or on the appeal that the guarantee was not valid and enforceable. The respondent stated that he did not read the main automobile lease that he was guaranteeing. He stated that he did not realize he was guaranteeing three other cars along with the one he was personally driving and paying for.
[5] The respondent stated that “in my mind” he agreed to pay 36 lease payments, with a residual value for the car pre-determined, at which price he could purchase the car at the end of the lease.
[6] There is no dispute, on the evidence given both orally and in documentation, that the appellant had three basis upon which it was legally entitled to seize the respondent’s car he was driving:
Default by the corporate leasee in the monthly payments due on the main car lease for three cars;
Default by the specific leasee, the respondent, in monthly payments, on the BMW in question;
Default by the corporate leasee, and the respondent in maintaining insurance on the cars he was driving.
[7] With regard to number 3 above, in the absence of documentary proof, the best evidence before the trial judge was that the respondent was in default in maintaining current insurance on the vehicle he was driving.
[8] The respondent did not dispute that he was in default at some time on the lease for the BMW.
[9] The trial judge was obliged to enforce the terms of a validly executed guarantee, and not consider such things as the respondent’s intention when he signed the guarantee, or what was “in his mind” when he signed the guarantee. In my view, the trial judge had no basis to impose an implied obligation on the appellant to give notice to the respondent prior to seizing his car, when no such term formed part of the contract between the leassor and the guarantor.
[10] After the vehicle was seized, the appellant offered to sell the car to the respondent for the residual value plus the defaulted payments. The appellant was entitled to request such an amount. The respondent chose to negotiate to pay a lesser amount, when he had no strength to do so.
[11] Accordingly, the appeal is granted. An order shall issue in the terms of the draft order. These terms incorporate what the trial judge could and ought to
have ordered. The costs requested by the appellant are imminently reasonable and are so granted.
Mossip J.
DATE: November 24, 2003
Divisional Court File No: 03-BN-6536
Small Claims Court File No. 01-BN-8460
DATE: 20031124
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Applewood Holdings Inc. v. Brian Bonneville
BEFORE: Mossip J.
COUNSEL: Paul H. Voorn, for the Appellant
Brian Bonneville, in person
ENDORSEMENT
Mossip J.
DATE: November 24, 2003