DATE: 20040625

DOCKET: C41221

COURT OF APPEAL FOR ONTARIO

RE:

GAMAL ELGINDY and EMAD ELGUINDY a.k.a. EMADELDIN ELGUINDY (Appellants (Defendants)) – and – TOYOTA CREDIT CANADA INC. (Respondent (Plaintiff))

BEFORE:

GOUDGE, SHARPE and CRONK, JJ.A.

COUNSEL:

Emad Elguindy

in person

Jeffrey Brown

for the respondent

HEARD AND ENDORSED:

June 11, 2004

On appeal from the judgment of Justice J. Ground of the Superior Court of Justice dated January 16, 2004.

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

[1] The appellant argues that the motions judge’s decision offends the provisions of the Personal Property Security Act (the “PPSA”) and the Consumer Protection Act. He further asserts that clause 5 of the retail instalment contract applicable to the Echo vehicle, under which the respondent repossessed the vehicle, is void because it conflicts with the PPSA and is severable from the other terms of the contract.

[2] We would not give effect to these submissions.

[3] The motions judge held that the respondent repossessed the Echo on the basis that the respondent in good faith believed that the property that was the subject matter of the contract (the Echo vehicle) was in jeopardy. The evidence supporting this finding was overwhelming.

[4] In addition, we reject the appellant’s argument that clause 5 of the contract is void. Clause 5 does not exclude a purchaser’s right to redeem the property, or to reinstate the contract, where those statutory rights are properly triggered. The motions judge concluded that the relevant sections of the PPSA and the Consumer Protection Act did not apply given the basis upon which the respondent repossessed the Echo. We agree. The repossession of the Echo vehicle was not based on any default in payment by the appellant.

[5] Finally, we see no merit to the appellant’s challenge of the interest component of the judgment granted by the motions judge concerning the Camry vehicle.

[6] Accordingly, the appeal is dismissed. The respondent is entitled to its costs of this appeal, fixed in the total amount of $2,964.74.