COURT OF APPEAL FOR ONTARIO

DATE: 20001018

DOCKET: C33324

RE: 114567 CANADA LIMITED carrying on business under the firm name and style of TORONTO R.V. CENTRE (Plaintiff/Defendant by Counterclaim) (Appellant) –and– RICHARD D. ATTWELL (also known as RICK ATTWELL) and DOODY ATTWELL (Defendants/Plaintiffs by Counterclaim) (Respondent Richard Attwell)

BEFORE: AUSTIN, LASKIN and SIMMONS JJ.A.

COUNSEL: Lawrence Zaldin, for the appellant

Igor Ellyn, Q.C., for the respondent

HEARD: October 12, 2000

On appeal from the judgment of Justice Romain W.M. Pitt of the Superior Court of Justice dated November 30, 1999.

E N D O R S E M E N T

[1] Although we do not endorse the trial judge’s analysis of statutory illegality and its effect on the enforceability of contracts, we think that on the facts of this case the trial judge could reasonably conclude that the contract sued on was unenforceable. The following considerations justify the trial judge’s conclusion:

(a) The statutory illegality under ss.3.1(b) and 4 of the Act was neither trivial, incidental nor accidental;

(b) Though knowing of the illegality, the dealer took no steps to cure it;

(c) Arsenault also failed to cure the illegality. Indeed a subsequent application for registration was rejected by the Registrar;

(d) A main purpose of registration under the Act is the protection of the public from dishonest or unscrupulous dealers and salespersons. The respondent was a member of the class of persons this registration requirement was intended to protect;

(e) The respondent received little if any benefit from the vehicle; and

(f) The appellant altered the documents signed by the respondent to satisfy the bank. The trial judge found “There may never have been a conditional sales agreement were it not for the misrepresentation”.

[2] In upholding the trial judge’s conclusion, we do not distinguish between the purchase agreement and the conditional sales agreement. The two were inextricably linked.

[3] For these reasons, the appeal is dismissed with costs.

[4] On the cross-appeal, the respondent seeks leave to appeal the costs order of the trial judge. The trial judge exercised his discretion to award no costs. We see no error in principle in the exercise of that discretion. In addition to the reason given by the trial judge, we note that most of the trial dealt with the allegation of fraudulent misrepresentation on which the respondent failed. Therefore, the respondent’s motion for leave to appeal costs is refused.

Signed: “Austin J.A.”

“John Laskin J.A.”

“Janet Simmons J.A.”