Court File and Parties

Court of Appeal for Ontario Date: 2020-05-22 Docket: M51324 (C67729)

Lauwers, Huscroft and Thorburn JJ.A.

Between

John Kitchen and Nancy Kitchen Plaintiffs (Respondents/Responding Parties)

And

Brian Garratt c.o.b. as “Garratt’s Garage” Defendant (Appellant/Moving Party)

Counsel: Brian Garratt, acting in person Scott McMahon, for the responding parties

Heard: In Writing

Reasons for Decision

[1] The respondents hired the appellant in 2000 to conduct a partial restoration of their 1974 Corvette. The appellant also had possession of other vehicles owned by the respondents. The respondents claim they paid the appellant about $79,000 over a 15-year period to restore the 1974 Corvette. In 2016, the parties fell out and the respondents brought an action seeking the return of the Corvette and damages. The appellant brought a counterclaim for unpaid accounts and storage fees, but it was dismissed because of his failure to deliver an affidavit of documents. The respondents obtained an order compelling the return of the Corvette and purported to discover that very little work had been completed.

[2] A trial date was adjourned at the appellant’s request on the day of the trial, and the respondents were permitted to bring a motion for summary judgment. Although he had been represented by counsel in the past, at the return of the summary judgment motion, the appellant was self-represented. He did not file any affidavit evidence on the motion, although he did arrive with some photographs of the vehicle in hand, which he proferred.

[3] The motion judge granted the motion for summary judgment, awarding $78,565.16 to the respondents as a return of monies paid to the appellant to restore their 1974 Corvette, plus pre-judgment interest and costs for a total of $103,949.79.

[4] In his endorsement, the motion judge noted:

The defendant did not seek an adjournment today. He did not file affidavit evidence or a factum. I heard his submissions that he wants a trial permitting him to file Exhibit 1 (photographs of the automobile). The motion materials clearly support that there is no genuine issue for trial. The defendant had the vehicle for 15 years, the plaintiffs paid $79,000. The evidence is that the work agreed upon was not done.

[5] However, contrary to the assertion made by the motion judge, there were photographs before him that depicted work done on the Corvette including painting and polishing. Those photographs were made an exhibit at the hearing. The respondents conceded that some, albeit they say “very little”, work was done, which implies that the return of all funds paid to the appellant might not have been warranted.

[6] The conflict in the evidence was not resolved. We therefore allow the appeal, set aside the order of the motions judge granting summary judgment and costs, and remit the case back for trial.

[7] Mr. Garratt had several opportunities to file evidence in support of his position that he did work on other vehicles and or stored other vehicles for the respondents and did not do so. By his failure to do so, Mr. Garratt has wasted the time of counsel for the respondents and must pay some costs thrown away on the summary judgment motion.

[8] We fix costs of the motion thrown away to be paid by Mr. Garratt to the respondents in the amount of $5,000 within 30 days of the date of this decision. Costs of this appeal, which we also fix at $5,000, will be costs in the cause reserved to the judge who finally disposes of the matter. The respondents are free to bring another summary judgment motion on proper evidence.

“P. Lauwers J.A.”

“Grant Huscroft J.A.”

“Thorburn J.A.”