COURT FILE NO.: 126/04

DATE: 20040318

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, MACFARLAND AND FERRIER JJ.

B E T W E E N:

GOLDILOCKS WU

Plaintiff (Respondent)

Appellant by cross-appeal

• and -

VOLVO CARS OF CANADA LTD.

Defendant (Appellant)

Respondent by cross-appeal

Young Park, for the Appellant (Defendant)

Chi-Kun Shi, for the Respondent (Plaintiff)

HEARD at Toronto: March 18, 2004

O’DRISCOLL J.: (Orally)

1The defendant Volvo appeals to this Court from the decision of Loukidelis J., dated November 1, 2002, in which he ordered Volvo Cars of Canada, (hereafter “Volvo”) to pay to the plaintiff $20,580.00 in damages consisting of: (i) $17,980.00 for net loss on the vehicle, (ii) $600.00 for loss of use and (iii) $2,000.00 for time, trouble and inconvenience.

2Loukidelis J. also ordered Volvo to pay costs to the plaintiff on a substantial indemnity basis, post November 15, 2001.

3When the matter was argued before us today, the appeal was, for all practical purposes, confined to the question of damages. After hearing submissions of all parties, we retired to consider the submissions.

4Although, perhaps, unhappily worded, we discern from the reasons of the trial judge that he found that, although the defendant Volvo lived up to its parts and service warranty, there was a fundamental breach of contract by Volvo entitling the plaintiff to rescission. The foundation for the breach is based on the fact that there was a collateral contract, as pleaded in paragraph 17 of the Amended Amended Amended Statement of Claim, that the defendant Volvo would provide the plaintiff with a motor vehicle that was safe, not one that was dangerous. It took almost twenty-four (24) months from the date of sale for Volvo to detect and rectify, on January 25, 2001, the problem with the vehicle. See: Cummings v. Ford Motor Co. of Canada [1984] O.J. 453 per Barr J.

5Given rescission, the plaintiff is entitled to void the sale and be put back to the position she was at as of the date of the contract. However, although she made nine (9) trips back to the dealer to have the problem fixed, she put 46,000 kilometers, plus or minus, on the vehicle. Equity requires an adjustment for that use of the vehicle.

6Looking at the loss to the plaintiff through the facts set out above and the findings of the trial judge, we cannot say that the trial judge erred in his calculation of damages in light of the right to rescission because of the fundamental breach. For these reasons, the appeal of Volvo is dismissed.

7Mr. Park, we do not find it necessary to hear from you on the plaintiff’s application for leave to appeal costs. Counsel for the plaintiff seeks leave to appeal the costs awarded by the trial judge on December 18, 2002, (Appeal Book and Compendium, Tab 6), after he heard submissions and argument.

8We have heard the submissions of counsel for Ms. Wu on this topic and we are not satisfied that any case has been made to grant leave with regard to costs. The application for leave to appeal is dismissed.

9We have heard submissions from counsel with regard to costs on the appeal and on the application for the cross-appeal. We are astounded at the fees and disbursements that have been totalled up in relation to a relatively simple case. A law suit is not to become a bonanza nor is it to become anyone’s annuity. Advocates must facilitate the business of the Court, not lengthen it or complicate it. On reflection, it is our view that an award of costs for the appeal or for the application for the leave to appeal would only aggravate the situation that we deplore. It follows then that there will be no costs of the appeal and there will be no costs for the application for leave to appeal.

10Our conclusion to refuse costs has been reaffirmed by two letters that were handed up to us during the submissions regarding costs. The first is a letter from counsel/solicitors for Volvo, dated January 7, 2003, to counsel for the plaintiff. It reads:

“My client is prepared to abandon its appeal if your client abandons her application for leave to appeal the cost order. Please advise me in writing before the end of day tomorrow as to whether your client is prepared to accept this proposal.”

11The second letter handed up to us is the reply from counsel for Ms. Wu, dated January 8, 2003. It states, in part:

“Your offer is rejected.” …

“When my client decided to sue Volvo, it has never been about money. Her goal was to teach Volvo a lesson about taking responsibility. Volvo can show her that it has done so by meeting the above requirements. If it does so, she is prepared not to enforce the damages award.”

The January 8, 2003 letter causes one to wonder whether the Court has been a pawn in the whole operation.

12I have endorsed the back of the Appeal Book as follows:

“The appeal and the application for leave to appeal costs on the cross-appeal are both dismissed for the oral reasons given this date. No costs of Appeal or the Application for leave to appeal on the Cross-Appeal.”

O’DRISCOLL J.

MACFARLAND J.

FERRIER J.

Date of Reasons for Judgment: March 18, 2004

Date of Release: April 7, 2004

COURT FILE NO.: 126/04

DATE: 20040318

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT