DATE: 20050914

DOCKET: C43171

COURT OF APPEAL FOR ONTARIO

RE:

MICHAEL LALONDE carrying on business as BUSY BEAVER BUILDERS (Respondent (Appellant)) – and – APPLEWOOD HOLDINGS INC. (Applicant (Respondent in Appeal))

BEFORE:

CRONK, LANG and JURIANSZ JJ.A.

COUNSEL:

Graydon Sheppard

for the appellant

Inga B. Andriessen

for the respondent

HEARD & RELEASED ORALLY:

September 9, 2005

On appeal from the judgment of Justice K. A. Langdon of the Superior Court of Justice dated February 28, 2005.

E N D O R S E M E N T

[1] With the assistance of Fleet Financial Inc. (“Fleet”), the appellant entered into a lease with the respondent concerning the rental of a truck. The lease provided that the respondent, as lessor, was entitled to repossess the leased vehicle in the event of default of payment by the appellant, as lessee.

[2] Unbeknownst to the respondent, Fleet arranged for a second lease and related documents to be prepared and executed by the appellant in respect of the same vehicle. In these documents, Fleet was described as the lessor and the appellant as the lessee. The Fleet lease provided for monthly payment terms that differed from those in the res-pondent’s lease and that were more favourable to the appellant.

[3] The lease payments to the respondent were initially made by Fleet, but Fleet defaulted within a matter of months after the execution of the respondent’s lease. The respondent made no demand against the appellant for payment under the lease until approximately 14 months after this default.

[4] Ultimately, the respondent sought repossession of the vehicle. The trial judge granted repossession, holding that Fleet was the agent of the appellant rather than of the respondent and that the appellant was obliged to bear the consequences of default in payment under the lease that he entered into with the respondent. The appellant appeals, arguing that the respondent’s delay in acting on the default under the lease is fatal to its repossession claim.

[5] We reject this argument. The appellant knowingly entered into the lease with the respondent, which provided for repossession rights in favour of the respondent upon default. The trial judge found that Fleet acted throughout as the agent for the appellant rather than of the respondent, a finding which attracts considerable deference from this court and which is amply supported by the evidence. In these circumstances, as between the appellant and the respondent, the appellant must bear the consequences of his agent’s acts of default.

[6] Accordingly, the appeal is dismissed. The respondent is entitled to its costs of this appeal, if demanded, fixed in the total amount of $7,500, inclusive of disbursements and GST.

“Eleanore Cronk J.A.”

“S.E. Lang J.A.”

“R.G.Juriansz J.A.”