Apelowicz Management Inc. o/a Discount Car and Truck Rentals v. Paul N. Griffiths

CITATION: Discount et al v. Griffiths 2010 ONSC 1410

NEWMARKET COURT FILE NO.: DC-09-00070-00

DATE: 2010-04-13

DIVISIONAL COURT - SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Apelowicz Management Inc. o/a Discount Car and Truck Rentals v. Paul N. Griffiths

BEFORE: The Honourable Madam Justice E.A. Quinlan

HEARD: March 4, 2010

COUNSEL: Michael F. Sirdevan, for the Plaintiff/Appellant L. Joleen Hiland, for the Defendant/Respondent

ON APPEAL FROM THE DECISION OF DEPUTY JUDGE C.A. BLASTORAH

DATED JULY 3, 2009

ENDORSEMENT

Overview

[1] Cases in the Small Claims Court are to be decided in a summary way. The deputy judge is to make such order as is considered just and agreeable to good conscience.[^1]

[2] I am not satisfied that this case was decided at trial in accordance with that legislative imperative. I find the deputy judge erred in law and that I should order a new trial.

Facts

[3] The respondent, Paul Griffiths, rented a car from the appellant, Apelowicz Management Inc. o/a Discount Car and Truck Rentals (Discount). He signed a rental agreement which included the following terms:

(a) collision damage waiver (C.D.W.) does not include coverage…if loss or damage is not reported to Discount and nearest police department at the time of loss within 24 hours of the time of loss.

(b) no other drivers allowed.

[4] Griffiths drove the vehicle away from the rental agency, however, within days allowed an employee of his, Brendan McLean, to drive the van. McLean was in an accident. Griffiths phoned Discount but did not tell Discount that someone else had driven the vehicle and that it had been in an accident. Instead he told them that there was a problem with the truck and he would let them know the details once he knew. Although he found out the same day that the truck had been in an accident and was “like a right-off (sic) almost”, he didn’t tell Discount about the damage for more than a day.

[5] Discount alleges that it spent over $10,000 to tow and repair the vehicle. It demanded reimbursement from Griffiths. Griffiths refused. Discount sued.

[6] In its Claim, Discount pleaded recovery of the towing and repair costs and alleged that the collision damage waiver did not apply because Griffiths did not provide a police report in accordance with the conditions of the rental agreement.

[7] Discount attached its repair invoices to the Claim.

[8] In his Defence, Griffiths pleaded reliance upon the collision damage waiver, alleging that Discount was notified on the day the vehicle was damaged and that police attended at the scene of the accident. Griffiths also pleaded that the renting party was a numbered company and not him personally. He claimed relief from forfeiture in accordance with section 129 of the Insurance Act. As to damages, Griffiths claimed that they were excessive and exaggerated.

[9] Griffiths did not acknowledge in his pleadings that he had allowed someone else to drive the vehicle.

Trial

[10] The case proceeded to trial. During the course of the trial, Discount learned that McLean was driving the vehicle at the time of the accident. It sought to rely on this previously undisclosed fact.[^2]

[11] The deputy judge would not allow Discount to rely on this evidence to support a further breach of contract. She ruled that “it is incumbent upon the plaintiff to give proper notice of the claim they are making, so that the defendant can make a full and proper response to that.”

[12] Discount attached invoices of its damages, supporting the cost of towing and repair in excess of the amount claimed of $10,000, to its claim, but did not call evidence of the amount. Discount filed photographs at the trial showing the damage to the vehicle, identified through its licence plate.

[13] Griffiths was aware of the quantum claimed but testified that it was excessive.

[14] The deputy judge found that Discount had failed to prove its damages: there was no evidence called with respect to the cost to repair the vehicle and no linkage between the damage to the front of the vehicle and the repair cost.

Analysis

[15] Small Claims Court litigants are routinely unrepresented and are not to be unduly restricted to their respective pleadings.[^3]

[16] In my view, the deputy judge failed to decide this case in a manner considered just and agreeable to good conscience. She held Discount to a standard of pleading that was unworkable in the small claims court.[^4]

[17] In addition, she did not construe the Rules of the Small Claims Court in the manner in which they are to be construed: that is, a liberal manner to secure the just, most expeditious and least expensive determination of the proceeding on its merits.[^5]

[18] This is an error of law that entitles this court to intervene and order a new trial as requested by Discount.

[19] Although not raised by Discount, I also consider that a new trial is warranted in that the deputy judge misapprehended the evidence.

[20] She found that “police were notified insofar as a police officer did attend the scene” and the accident was reported to Discount within the time period prescribed.

[21] However, there was no evidence that Griffiths reported the accident to the police. Griffiths’ evidence was that his driver told him that that an off-duty police officer just happened to be in the parking lot, asked the driver if he needed help and told the driver to contact the rental company. He acknowledged that he should have stopped at the police station, but testified that he didn’t have time.

[22] Griffiths acknowledged that he didn’t report the damage to Discount within 24 hours of his learning about it.

[23] The deputy judge made what I find to be unreasonable findings of fact that are the product of her misapprehension of evidence. The misapprehension was material to significant findings of fact[^6] and further support my view that a new trial should be ordered.

Disposition

[24] Accordingly, the order below, including the order for costs payable by Discount to Griffiths, is set aside. A new trial is ordered.

[25] The appellant is granted leave to amend Discount’s Claim to allege a further breach of the rental contract, specifically, that Griffiths was not driving the rental vehicle at the time of the accident. Griffiths is granted leave to amend his Defence.

Costs

[26] If the parties cannot agree, they may address the issue of costs of this appeal and the trial below by written submissions. Those of the appellant shall be filed within 15 days of the release of these reasons and those of the respondent within 15 days thereafter. Written submissions are not to exceed three pages in length.

Justice E.A. Quinlan

DATE: April 13, 2010

[^1]: Courts of Justice Act, R.S.O. 1990, Chap. C. 43, section 25. [^2]: Griffiths did not disclose this fact in his pleadings. In his factum, Griffiths argues that this information was made available to Discount at a settlement conference. There is no evidentiary foundation for this assertion and there was no application to admit fresh evidence. [^3]: Gardiner v. Mulder (2007), 221 O.A.C.200, 155 A.C.W.S.(3d)976 (Div.Ct.). [^4]: Idem footnote 2 [^5]: Rules of the Small Claims Court, O.Reg. 258/98, Rule 1.03(1). [^6]: Peart v. Peel Regional Police Services Board, 2006 ONCA 37566, [2006] O.J. No. 4457 (C.A.) at para. 164.