DATE: 20040528 DOCKET: C40398

COURT OF APPEAL FOR ONTARIO

RE:

BILL NICHOLLS (Plaintiff/Appellant) v. MARKEL INSURANCE COMPANY OF CANADA, MERCEDES-BENZ CREDIT OF CANADA and ARROW TRUCK AND TRAILER REPAIR (Defendants/Respondents)

BEFORE:

DOHERTY, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

J. Paul Fletcher for the appellant

Christopher Stanek for the respondent

HEARD:

May 20, 2004

RELEASED ORALLY:

May 20, 2004

On appeal from the order of Justice McLean of the Superior Court of Justice, dated June 25, 2003.

ENDORSEMENT

[1] The respondent Mercedes-Benz Credit of Canada ("Mercedes") successfully moved for a summary judgment dismissing the appellant's action against Mercedes. The appellant now appeals that dismissal.

[2] Mercedes financed the purchase of a truck for the appellant. Under the agreement between the appellant and Mercedes, title of the truck remained with Mercedes. Under the agreement, any insurance proceeds payable as a result of damage to the truck were payable to Mercedes.

[3] The truck was damaged by fire and a dispute arose between the appellant and his insurer over the payment of certain proceeds from the sale of the damaged truck.

[4] The appellant contends that Mercedes improperly interfered with his negotiations with the insurer and that, consequently, those negotiations did not come to fruition. The appellant contends that the value of the truck decreased substantially after the negotiations failed. The appellant further contends that he is entitled to set off the decrease in the value of the truck against any money owing under the financing agreement to Mercedes.

[5] We cannot accept this submission. Assuming the claim as described by the appellant is actually found in the pleadings, there was no evidence before the motion judge to support that claim. The appellant relies on para. 12 of his affidavit. It reads:

Markel Insurance then indicated to me that they could not cash the cheque because they were being inhibited by the defendant, Mercedes-Benz Credit, who were claiming an interest in the vehicle.

[6] The allegation in paragraph 12 offers no support for the appellant's contention. It does no more than indicate that Mercedes was claiming an interest in the vehicle in its discussions with the insurer. Mercedes had an interest in the vehicle and an interest in the insurance proceeds.

[7] As there was no evidence to support the only claim advanced by the appellant against Mercedes, this was a proper case for summary judgment.

[8] The appeal is dismissed with costs all to the respondent in the amount of $3,800.00.

"Doherty J.A." "Robert P. Armstrong J.A." "R.A. Blair J.A."