DATE: 20030918

DOCKET: C39434

COURT OF APPEAL FOR ONTARIO

RE:

YORKDALE FORD LINCOLN SALES LIMITED (Applicant/Respondent in Appeal) v. JOSEPH DELUCA, JOHN DELUCA, A.J. GOODMAN, also known as AARON J. GOODMAN, CROWN LEASING LTD., FOURNIER LEASING COMPANY LTD. and SUPERIOR AUTO SALES INC. (Respondents/Appellants)

BEFORE:

DOHERTY, WEILER and SHARPE JJ.A.

COUNSEL:

Joseph M. Gottli

for the appellant, Fournier Leasing Company Ltd. et al.

Symon Zucker

for the respondent

HEARD & ENDORSED:

September 16, 2003

On appeal from the judgment of Justice R. Pitt dated January 8, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The application judge erred in law in holding that title to the automobile did not pass when Crown took possession of the vehicle and presented the cheque which was subsequently dishonoured. There is no reason why the usual inference that the parties intended title of the automobile to pass with possession should not have been drawn.

[2] We agree with both counsel that the only real issue was whether the appellants were innocent third party purchasers for value. Unfortunately, the application judge did not decide that issue. We cannot decide it as it turns on contested issues of fact on which there is conflicting evidence.

[3] The judgment below is set aside and we direct the trial of an issue to resolve the issue in dispute as to whether the appellants were bona fide third party purchasers. The appellants have agreed to place $15,000 in deposit with Mr. Gottli to be held in trust pending the resolution of the trial of the issue. Costs of these proceedings and the proceeding before Pitt J. are left to the court trying the issue.