COURT OF APPEAL FOR ONTARIO

CITATION: Goldentuler v. Mercedes-Benz Canada Inc., 2014 ONCA 361

DATE: 20140505

DOCKET: C57353

Juriansz, Tulloch and Strathy JJ.A.

BETWEEN

Edward Goldentuler

Plaintiff/Appellant

and

Mercedes-Benz Canada Inc., Francisco Pereira, Chris Cowle, Robert Buschman and Scott McEdwards

Defendants/Respondents

Karl Girdhari, for the appellant

Anthony E.C. Bak, for the respondents

Heard: April 29, 2014

On appeal from the order of Justice Mark L. Edwards of the Superior Court of Justice, dated June 17, 2013, with reasons reported at 2013 ONSC 4150.

ENDORSEMENT

[1] The appellant, a lawyer, brought an action in the Superior Court of Justice in relation to service he received at two Mercedes-Benz dealerships. He sued two service managers and two mechanics, at the dealerships, as well as Mercedes-Benz Canada Inc., claiming damages for breach of contract and negligence in the replacement of his brakes. In addition, he alleged the respondents conspired to avoid replacing a defective brake rotor, making the vehicle unsafe. He claimed $2,000 in special damages, and $1 million in punitive, exemplary and aggravated damages.

[2] On the respondents’ summary judgment motion, the motion judge found the appellant had failed to produce any evidence to support the allegations of conspiracy. Referring to the well-known line of authority in this court, the motion judge also found that the appellant was “not entitled to sit back and rely on the possibility that more favourable facts may develop at trial”: see Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 56, aff’d on other grounds 2014 SCC 7; see also Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para.11. The motion judge therefore dismissed the conspiracy claim.

[3] The other claims with respect to the allegedly defective repair work, and the claim for punitive damages, were permitted to proceed to trial. The motion judge granted the respondents costs of $17,500, plus disbursements.

[4] The appellant submits the motion judge erred by not drawing an inference of conspiracy based on the defendants’ conduct. We do not accept this submission. The motion judge considered all the evidence, including the affidavit evidence of the four individual defendants, who were not cross-examined, and concluded that the appellant had not proven the existence of a conspiracy. The conduct the appellant points to was consistent with breach of contract or negligence. It was open to the motion judge to find that this evidence, when viewed together with all the evidence, including the respondents’ explanation, did not establish a conspiracy.

[5] We would therefore dismiss the appeal.

[6] The standard of review as to costs is high – a costs award should only be set aside if the trial judge has made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27; McDowell v. Barker, 2012 ONCA 827, at para. 17. No such circumstances have been identified. We would therefore dismiss the appeal as to costs.

[7] The respondents are entitled to their costs of this appeal, on a partial indemnity basis, fixed at $10,000 inclusive of disbursements and all applicable taxes.

“R.G. Juriansz J.A.”

“M. Tulloch J.A.”

“G.R. Strathy J.A.”