DATE: 20040211

DOCKET: C38946

COURT OF APPEAL FOR ONTARIO

RE:

CORPORATE CARS, A LIMITED PARTNERSHIP OF TRACMOUNT/GLOJACK LEASING LTD., 1063179 ONTARIO LTD. AND 676490 ALBERTA LIMITED (Applicant/Appellant) v. VW CREDIT CANADA INC. AND MARK PAVAN AND H. J. PFAFF MOTORS INC. (Respondents/Respondents in Appeal)

BEFORE:

McMURTRY C.J.O., CATZMAN AND ABELLA JJ.A.

COUNSEL:

Barry Rubinoff

for the appellant

Douglas Langley

for the respondent, H. J. Pfaff Motors

Drazen Bulat

for the respondent, VW Credit Canada Inc.

HEARD & RELEASED ORALLY:

February 10, 2004

On appeal from the decision of Justice Brennan of the Superior Court of Justice dated September 23, 2002.

E N D O R S E M E N T

[1] The appellant appeals from the decision of Brennan J. which dismissed its application for a declaration that it is the owner of a 2000 Porsche motor vehicle purchased from one Reynolds who had purportedly purchased the vehicle from the respondent, Pfaff.

[2] It was fraudulently represented by Reynolds to the appellant that he had purchased the Porsche vehicle from Pfaff and therefore had the authority to sell the vehicle to the appellant.

[3] It is conceded by the respondent, Pfaff, that it effected the registration of the vehicle with the Ministry of Transportation in the name of the appellant at the request of Reynolds knowing that Reynolds had agreed to resell the vehicle to the appellant. However, when Pfaff effected the registration, the purchase by Reynolds had not been concluded nor was it ever concluded. On being presented with a copy of the Certificate of Registration of the vehicle in its name, the appellant advanced the purchase funds to Reynolds.

[4] We do not agree with the application judge’s finding that the conduct of Pfaff was “not such as to preclude it from denying Reynolds’ authority to sell”. In our respectful view, the application judge erred when he found that “the appellant did not require any proof of title” as it is common ground that Pfaff did, in fact cause the registration of the vehicle to be placed in the appellant’s name and that the Certificate of Registration was given to the appellant. At the very least, this provided prima facie evidence from Pfaff to the appellant that Reynolds had authority to sell the vehicle to it.

[5] The appeal is therefore allowed and it is declared that the appellant is the true owner of the vehicle and is entitled to the proceeds of sale of the vehicle.

[6] Given our decision with respect to the appeal, it is conceded by Pfaff that the cross-appeal must be allowed. Pfaff is therefore ordered to pay VW Credit the sum of $114.255.96.

[7] The appellant is entitled to its costs as against Pfaff fixed in the amount of $10,000.00. There will be no order of costs with respect to the cross-appeal.

_____ “R. Roy McMurtry C.J.O.”

_____ “M. A. Catzman J.A.”

_____ “R. S. Abella J.A.”