COURT FILE NO.: 113/05
DATE: 20070131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, FERRIER AND PERKINS JJ.
B E T W E E N:
GMAC LEASECO LIMITED
Plaintiff
(Respondent in Appeal)
- and -
1348259 ONTARIO INC., carrying on business as SEBKAR MOTORS, BERARDO VALENTINI, UNITED AUTO AUCTION LTD., 1060038 ONTARIO LTD., carrying on business as MIDTOWN MOTORS LTD. and VASILIOS HONDZOGLOU
Defendants
(1060038 Ontario Ltd. c.o.b. as Midtown Motors Ltd., the Appellant in Appeal)
- and -
VISION CHEVROLET GEO OLDSMOBILE LTEE, CENTRAL PONTIAC BUICK LTEE and DECARIE CHEVROLET OLDSMOBILE LTEE
Third Parties
Doug Christie, for the Plaintiff, Respondent in Appeal
Robert L. Colson, for the Defendant (Appellant in Appeal), 1060038 Ontario Ltd., c.o.b. as Midtown Motors Ltd.
HEARD at Toronto: January 31, 2007
jennings J.: (Orally)
[1] Midtown appeals with leave the interlocutory order of Siegel J., dismissing a motion for judgment on executed Minutes of Settlement.
[2] The reasons for dismissing the motion are at best problematic. The difficulties presented to a reviewing court were clearly and succinctly highlighted by Swinton J. in her endorsement granting leave to appeal on the basis of her having good reason to doubt the correctness of the order in question.
[3] In the first thirty-five paragraphs of his forty-seven paragraph endorsement, the motions Judge carefully reviewed in some detail the extensive evidentiary record before him concluding that there were conflicts in the evidence of the parties as to the intended effects of the Minutes of Settlement which raised genuine issues for trial.
[4] Regrettably, having arrived at that conclusion the motions Judge went on to say at paragraph 37 of his reasons:
“…if I am in error in not deciding this application and the cross-application because I have concluded that genuine issues for trial exist, I would find in favour of the applicant on both issues for the following reasons.”
He then goes on to set out his reasons.
[5] The difficulty the motions Judge thereby created is obvious. The motions Judge was required to decide the motion on the evidence before him. At first blush it would seem to us that upon taking a second look at that evidence he appeared to find there were no genuine issues for trial and the motion for judgment should succeed.
[6] Having determined that on the evidence before him there were raised genuine issues for trial, it was clearly wrong of him to go further. He may very well have been motivated by a laudable desire to help the parties resolve this matter, which we observe has generated more in costs than the amount at issue. But the result is to provide two findings which would appear to be in direct conflict.
[7] Clearly, an order containing two inconsistent conclusions could not be permitted to stand.
[8] We cannot believe that the motions Judge intended that unfortunate result.
[9] After a careful review of his reasons, we conclude that his findings of conflicts giving rise to triable issues arrived at in that part of the reasons to which he devoted the bulk of his analysis, constitutes the decision at which he wished to arrive. His subsequent and quite unnecessary discussion must be read as a statement of what he would have done had he had the jurisdiction to resolve the inconsistencies on the motion. It must be assumed that he was aware that on a rule 49.09 motion for judgment, the standards and requirements of Rule 20 apply, and the power to resolve genuine factual disputes arising from the record was not available to him.
[10] There was evidence before him to support his findings that there were genuine issues for trial. We are unable to interfere in those findings.
[11] Accordingly, the appeal must be dismissed.
[12] In our opinion, and notwithstanding the result, this was an appeal that was virtually required to be brought given the decision under review. Because of that, we are of the preliminary opinion that this is not a case for costs. However, we have not had the benefit of
counsel’s submissions and if there is a disagreement between them, we will accept written submissions not to exceed four pages within ten days of the release of these reasons.
JENNINGS J.
FERRIER J.
PERKINS J.
Date of Reasons for Judgment: January 31, 2007
Date of Release: February 5, 2007
COURT FILE NO.: 113/05
DATE: 20070131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, FERRIER AND PERKINS JJ.
B E T W E E N:
GMAC LEASECO LIMITED
Plaintiff
(Respondent in Appeal)
- and -
1348259 ONTARIO INC., carrying on business as SEBKAR MOTORS, BERARDO VALENTINI, UNITED AUTO AUCTION LTD., 1060038 ONTARIO LTD., carrying on business as MIDTOWN MOTORS LTD. and VASILIOS HONDZOGLOU
Defendants
(1060038 Ontario Ltd. c.o.b. as Midtown Motors Ltd., the Appellant in Appeal)
- and -
VISION CHEVROLET GEO OLDSMOBILE LTEE, CENTRAL PONTIAC BUICK LTEE and DECARIE CHEVROLET OLDSMOBILE LTEE
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: January 31, 2007
Date of Release: February 5, 2007