ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
CITATION: Bilyk v. Breen, 2017 ONSC 350
DATE: 20170116
FILE NO. DC-15-866-00
BETWEEN:
Brian Bilyk and Olesia Bilyk
Plaintiffs (Appellants)
- and -
Gregory S. Breen, Marie L. Breen and Duke Collision Centre Inc.
Defendants (Respondents)
Brian Bilyk and Olesia Bilyk, in person
Charles Baker, for the respondents
Heard: September 13, 2016
On appeal from the judgment of Deputy Judge Abraham Davis dated September 2, 2015, Newmarket Small Claims Court, File no. SC-10-25459-00
Bale J:–
[1] Following the oral hearing, I allowed this appeal, and ordered a new trial, with written reasons to follow. The following are my reasons.
Introduction
[2] The plaintiffs appeal from the dismissal of their claim for damage, to an automobile, alleged to have been caused by the defendants.
[3] There are three issues on appeal:
- Whether the trial judge erred in holding that the plaintiffs had no cause of action, because they had sold the vehicle prior to trial;
- Whether the trial judge erred in dismissing the plaintiffs’ claim without hearing from all of their witnesses;
- Whether the trial judge erred in awarding “substantial costs” to the defendants as a result of the fact that the change in ownership was not disclosed at the outset of the trial.
Background facts
[4] The plaintiffs purchased a 1986 Chevrolet El Camino with a view to having it restored prior to use. They allege that they spent more than $35,000 on the restoration, including $12,000 paid to the defendants. The work to be done by the defendants was painting and refinishing. The plaintiffs allege that the car was returned to them in a disassembled and damaged condition, and that many of the original parts had been removed, or replaced with aftermarket parts.
[5] The plaintiffs then entered in an agreement with a Jeffrey Forgione. Mr. Forgione restores cars. The agreement was that the plaintiffs would give the El Camino to Forgione to restore for his own use, and that in return, Forgione would restore another vehicle owned by the plaintiffs.
[6] Mr. Forgione was the third of six witness that the plaintiffs intended to call. He gave evidence of his agreement with the plaintiffs, and said that his cost of restoring the El Camino was at least $30,000. Ownership of the vehicle had not yet been transferred to him, but he considered it to be his.
[7] Upon hearing Mr. Forgione’s evidence with respect to his agreement with the plaintiffs, the trial judge ordered everyone out of the courtroom (including the parties), except the plaintiffs’ representative, and counsel for the defendants. He then took the plaintiffs’ representative to task for not having informed defendants’ counsel or the court that the vehicle had been sold, and heard argument from defendants’ counsel, but not from the plaintiffs’ representative. The parties were then permitted to return to the courtroom, at which time the trial judge dismissed the action without hearing the balance of Forgione’s evidence, or the evidence of the plaintiffs’ remaining witnesses, including the plaintiffs themselves, and without hearing argument.
The trial judge’s reasons
[8] With respect to the existence of a cause of action, the trial judge reasoned:
Unless the action had been in law assigned or transferred to Forgione, or Forgione given his permission, which I do not have, to maintain this action the cause of action disappeared.
[9] With respect to damages, the trial judge reasoned:
They cannot prove any damages because the possible negligent work, or the overcharging, or the replacement with aftermarket parts, or all the other things that the plaintiff has been complaining about, was then incorporated in a switch over to Forgione and the consideration being work being done on another vehicle for the plaintiff.
Discussion
Whether the trial judge erred in holding that the plaintiffs had no cause of action, because the vehicle had been sold prior to trial
[10] When the El Camino was sold to Mr. Forgione, in return for restoration work to be done on another vehicle, the plaintiffs’ cause of action against the defendants did not, as the trial judge appears to suggest, disappear into some sort of black hole. Either the cause of action was assigned to Forgione, or it remained with the plaintiffs.
[11] A cause of action for breach of contract may be assigned as part of a transfer of the property to which the cause of action relates. In the present case, however, there was no evidence that the cause of action had been assigned to Mr. Forgione. More than that, the very fact that Forgione, in giving evidence for the plaintiffs and describing their agreement, makes no mention of an assignment, and manifests no concern with the plaintiffs’ claim, would suggest that as between the plaintiffs and himself, the cause of action was theirs, and not his.
[12] Based upon the evidence led, and to be led, by the plaintiffs, they suffered a loss, and had a right to claim damages for that loss. Assuming this evidence to be true, the El Camino that they traded to Mr. Forgione, for restoration work to be done by him on another vehicle, was worth less than what it would have been worth had it not been damaged and disassembled, and had many of the original parts not been removed. In the absence of any evidence to the contrary, it must be assumed that the value of the restoration work to be done for them by Forgione was to be commensurate with the value of the El Camino “as is”, i.e., in the damaged state in which he received it. It would simply make no sense to assume, in the absence of supporting evidence, that Forgione was agreeing to provide the plaintiffs with restoration work of the value of a fully-restored El Camino, and that he intended to commence an action against the defendants, hoping to make the deal pay. Accordingly, following their agreement with Forgione, and again assuming their evidence to be true, the plaintiffs continued to suffer a loss, and were entitled to maintain an action against the defendants for recovery of that loss.
[13] On the hearing of this appeal, counsel for the defendants argued that the right to claim damages “ran with the car”, and that the plaintiffs had no cause of action, because they didn’t obtain an assignment of the cause of action back from Forgione. However, counsel acknowledged that this argument was not supported by precedent, and in response, I will only say that I have never known that to be the law.
[14] Counsel also argued that I should consider this case by analogy to an insurance case. However, the better analogy would be to the scrap yard. While an insurer pays the pre-damage value of the car and is subrogated to the vehicle owner’s claim, the scrap dealer does not, and is not.
Whether the trial judge erred in dismissing the plaintiffs’ claim without hearing from all of their witnesses
[15] The plaintiffs intended to call six witnesses. When part way through the evidence of the third witness (Mr. Forgione), the trial judge came to the conclusion that the plaintiffs had no cause of action, the trial judge simply ended the trial, without calling for argument, and without knowing what evidence the plaintiffs still had to call.
[16] In argument on this appeal, counsel for the defendants argued that the trial judge’s conduct was justified with reference to section 25 of the Courts of Justice Act which provides that the Small Claims Court “shall hear and determine in a summary way all questions of law and fact and make such order as is considered just and agreeable to good conscience.” I disagree.
[17] It would be a very rare case in which a trial judge would be justified in refusing to hear a party’s evidence, especially where, as in this case, the trial judge had no information with respect to the evidence intended to be called. Here, the plaintiffs were carrying on their case in a proper manner, and they were entitled to be heard. In their factum, and supported by evidence that I ruled admissible on the appeal, the plaintiffs say that had the trial continued, the trial judge would have, for example, heard evidence that the plaintiffs continued to insure the El Camino, and that Mr. Forgione had done no work, whatsoever, on the vehicle that he had agreed to restore for them.
Whether the trial judge erred in awarding “substantial costs” to the defendants as a result of the fact that the change in ownership had not been disclosed at the outset of the trial
[18] As will be obvious, I don’t agree with the trial judge’s reasons for awarding the costs that he did. However, in my view the costs awarded were none-the-less reasonable, and had I not found the trial judge to be in error in dismissing the claim, I would not have interfered with his disposition of costs.
Disposition
[19] For the reasons given, I allowed the appeal, and ordered a new trial.
[20] The costs of the first trial will follow the event of the second trial.
[21] If the parties are unable to reach an agreement with respect to the costs of this appeal, I will consider brief written argument provided that it is delivered to my assistant’s attention at Judges’ Reception, Sixth Floor, Durham Region Courthouse, no later than February 13, 2015.
“Bale J.”
Released: January 16, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
CITATION: Bilyk v. Breen, 2017 ONSC 350
DATE: 20170116
FILE NO. DC-15-866-00
BETWEEN:
Brian Bilyk and Olesia Bilyk
Plaintiffs (Appellants)
- and -
Gregory S. Breen, Marie L. Breen and Duke Collision Centre Inc.
Defendants (Respondents)
REASONS FOR JUDGMENT
Bale J.
Released: January 16, 2017