Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220324 DOCKET: C69712

Strathy C.J.O., Coroza and George JJ.A.

BETWEEN

Drive Auto Group Inc. Plaintiff (Respondent)

and

David Hay Limited c.o.b. as Fix Auto Richmond Hill, and as Centre Hill Collision and as Town Auto Body 9743839 Canada Limited c.o.b. as Fix Auto Thornhill, and as Carstar Thornhill and as Antica Auto Body Collision and Glass 2508774 Ontario Ltd. c.o.b. as Fix Auto Oak Ridges, 9033955 Canada Limited c.o.b. as Collision Repair Experts Toronto North and as Carstar Willowdale, and as Carstar Willowdale (L&G), Doublesee Collision Etobicoke Inc. c.o.b. as Collision Repair Experts Toronto West and as Collision Repair Experts, 2635063 Ontario Ltd. c.o.b. as Fix Auto Oak Richmond Hill, and Amir Tajbakhsh also known as Tony Taj and c.o.b. as Collision Repair Experts Toronto Defendants (Appellant)

Counsel: Richard Quance and Katherine Lee, for the appellant Paul Feldman, for the respondent

Heard: March 17, 2022 by video conference

On appeal from the judgment of Justice William S. Chalmers of the Superior Court of Justice, dated May 21, 2021, with reasons dated July 2, 2021 and reported at 2021 ONSC 5074.

Reasons for Decision

[1] The appellant appeals a judgment in the amount of $140,621.52 plus prejudgment interest and costs on eleven cheques payable to the respondent, which were dishonoured. The only issue on the summary judgment motion was whether the appellant was personally liable on the cheques he signed in the name of “Collision Repair Experts Toronto”. The motion judge concluded that the matter was appropriate for summary judgment because the record permitted him to make the necessary findings of fact and to apply the law. Summary judgment was also the most proportionate, expeditious and less expensive means to achieve a just result. Applying the law to the undisputed facts, the motion judge found the appellant liable as the drawer of the dishonoured cheques pursuant to s. 94(2) of the Bills of Exchange Act, R.S.C. 1985, c. B-4 (the “BEA”).

[2] The appellant submits the motion judge erred because he did not intend to incur personal liability as he was signing on behalf of 9033955 Canada Limited, of which he was the directing mind, and which carried on business under the name and style “Collision Repair Experts Toronto North”. He submits that due to the relationship between the parties, the respondent knew that it was contracting with the corporation and not with him in his personal capacity.

[3] We do not accept this submission. The BEA is a complete answer to the appellant’s argument. Section 131(1) of the BEA provides that “[w]here a person signs a bill in a trade-name or assumed name, he is liable thereon as if he had signed it in his own name.” The appellant signed cheques under an unregistered trade name and he thereby became personally liable on the cheques. The name “Collision Repair Experts Toronto” was not the name under which 9033955 Canada Limited carried on business. The case of K & S Plumbing & Heating Ltd. v. Troughton (c.o.b. T.F.D. 2000), [2003] O.J. No. 4564 (S.C.), relied on by the appellant, was not a bills of exchange case and has no application to the appellant’s liability on cheques he signed.

[4] As the motion judge observed, at para. 18, “The purpose of the [Bills of Exchange Act] is to provide certainty in upholding negotiable instruments. It is the responsibility of the person signing the instrument to ensure that it properly reflects the name of the corporate entity.” The scheme of the BEA is supported by s. 2(1) of the Business Names Act, R.S.O. 1990, c. B.17, which provides that, “No corporation shall carry on business or identify itself to the public under a name other than its corporate name unless the name is registered by that corporation.” See also: Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 10(5), which requires that a corporation set out its name in legible characters in, among other things, all negotiable instruments.

[5] In sum, the appellant was the directing mind of several companies which carried on business under a number of trade names. He signed cheques under a trade name that was not registered to any of the corporations and thereby became liable on those cheques pursuant to operation of the BEA.

[6] The appeal is dismissed with costs fixed at the agreed amount of $8,000, inclusive of disbursements, plus H.S.T.

“G.R. Strathy C.J.O.”

“S. Coroza J.A.”

“J. George J.A.”