Court of Appeal for Ontario

Citation: 2018 ONCA 95

Date: February 1, 2018

Docket: C63456

Judges: Sharpe, LaForme and van Rensburg JJ.A.

Between

Turtle Creek Landscape Inc. Plaintiff (Appellant)

and

Summit Auto Brokers Inc. and Shane Baghaee Defendants (Respondents)

Counsel

Leonard Reece, for the appellant

Sahar Cadili, for the respondent

Heard

January 29, 2018

On Appeal

On appeal from the judgment of Justice G.P. DiTomaso of the Superior Court of Justice, dated February 24, 2017.

Reasons for Decision

[1] The appellant Turtle Creek Landscape Inc. sued the respondents for damages, alleging defects in a truck it claimed to have purchased from the respondents.

[2] The appellant appeals the dismissal of its action on a summary judgment motion. On appeal it raises many of the same arguments that it raised in the court below.

[3] We are not persuaded that there was any error in the motion judge's disposition of this matter, or in his reasons for dismissing the action.

[4] We do not accept the appellant's submission that the motion judge erred by failing to find that there were issues requiring a trial. The appellant itself moved for summary judgment and did not take the position before the motion judge that there should be a trial. The motion judge correctly applied the principles articulated in Hryniak v. Mauldin, 2014 SCC 7 in concluding that the case could properly be decided by way of summary judgment.

[5] The motion judge concluded that the purchaser of the vehicle was not the appellant, but was Roberto Imbiscuso, who entered into an agreement to purchase the truck from Summit Auto Brokers Inc. Mr. Imbiscuso's name appears as purchaser in the vehicle purchase agreement. He purchased a third party warranty in his own name. Title to the vehicle was taken in Imbiscuso's name. While there is a copy of the agreement naming both Imbiscuso and Turtle Creek as purchasers, the motion judge accepted the evidence of the respondents that this was not the actual agreement but was created for tax purposes at the request of Imbiscuso.

[6] There was evidence to support the motion judge's conclusion that Turtle Creek had no cause of action against the defendants because it was not the purchaser of the vehicle.

[7] While this is sufficient to dispose of the appeal, we would not give effect to any of the appellant's other arguments. There was no error in the motion judge's conclusion that the appellant failed to prove that the truck required repairs or that the appellant paid for repairs. As for the appellant's claim that the respondents tampered with the vehicle's odometer, as the motion judge noted, no fraud was substantiated or pleaded in the action.

[8] For these reasons the appeal is dismissed. Costs of the appeal, including costs reserved to this panel by Cronk J.A., are fixed at $5,500 inclusive of applicable taxes and disbursements to be paid by the appellant to the respondents.

"Robert J. Sharpe J.A."

"H.S. LaForme J.A."

"K. van Rensburg J.A."