C.Y. Vehicle Enterprises Inc. v. Lin, 2021 ONSC 4828
CITATION: C.Y. Vehicle Enterprises Inc. v. Lin, 2021 ONSC 4828
DIVISIONAL COURT FILE NO.: DC-19-0000020-00
RICHMOND HILL SMALL CLAIMS COURT FILE NO. SC-17-00115178-0000
DATE: 20210708
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
C.Y. VEHICLE ENTERPRISES INC. Appellant
– and –
JIANYE LIN Respondent
Barry L. Evans, for the Appellant
C. Higgs and M. Patry, for the Respondent
HEARD at Newmarket via Zoom: July 5, 2021
McCARTHY J.
REASONS FOR DECISION ON APPEAL
[1] This appeal arises from a decision of Deputy Judge Jack Davis (“the trial judge”), dated September 9, 2019 (“the trial decision”) out of the Richmond Hill Small Claims Court.
[2] In the trial decision, the trial judge dismissed the Plaintiff’s claim for liquidated damages of $20,000.00 for the Defendant’s alleged breach of a non-export clause in a sales agreement between the parties for the Defendant’s purchase of a 2016 Land Rover (“the vehicle”).
[3] The trial judge concluded that the Plaintiff had failed to establish, on a balance of probabilities, that the vehicle had been exported.
[4] The standard of appellate review applicable to lower courts on findings of pure fact requires the Appellant to demonstrate that the finding constituted a palpable and overwhelming error: see Housen v. Nikolaisen, 2002 SCC 33, at para. 10 (“Housen”).
[5] The role of appellate courts is not to allow the opportunity to reargue the case. As the trial judge makes findings of fact based on his or her understanding of the evidence presented at trial, the trial judge is therefore in a unique position of having heard the evidence and assessed the demeanour of the witnesses. For this reason, appellate courts have traditionally treated findings of fact made by trial judges with deference: see 1201059 Ontario Inc. v Pizza Ltd., 2015 ONSC 1208, at paras 5-6.
[6] In this case, the appeal must fail for the following reasons:
The trial judge made a clear finding that the evidence submitted at the hearing did not satisfy the Plaintiff’s onus to establish, on the balance of probabilities, that the vehicle had been exported.
The trial judge gave little weight, as he was entitled as trier of fact, to the letter from Sam Pirillo, Vice President, Sales, Jaguar Land Rover Canada ULC (“the letter”). The trial judge provided reasons why he did not accept the letter as establishing that the vehicle had been exported: there was no supporting or official documentation from China to indicate that the vehicle had been plated and registered there; as well, the maker of the document was not in court to advise what specific documentation he had been able to review in order to come to the conclusion that the vehicle had been exported; finally the evidence had not been tested by cross-examination.
The trial judge did not view the Ontario Vehicle History Search, which contained no registered owners subsequent to the Defendant, as sufficient to establish that the vehicle had been exported. He found that it was equally possible that a subsequent owner(s) had simply failed to register the vehicle. Again, the trial judge was entitled to find that the evidence did not establish the fact being asserted by the Plaintiff on a balance of probabilities.
Rule 18.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 does allow a plaintiff’s case to be proved by affidavit or written statement. It does not, however, direct the trial judge to accept such evidence as credible, reliable or deserving of weight. Nor does the rule mandate a defendant to cross-examine an author of a written statement or an affiant; it remains open to the party to challenge the reliability and veracity of such evidence on its face or by other means. Indeed, in the present case, it is apparent from the record that the Defendant successfully attacked that written statement in a collateral fashion by vigorously cross-examining the Plaintiff’s representative.
It is not incumbent upon a trial judge to mention or review each and every piece of evidence tendered in court in his or her reasons. As stated by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, at para. 17:
What is required is a logical connection between the “what” – the verdict – and the “why” – the basis for the verdict. The foundations of the judge’s decision must be discernible, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.
In the case at bar, the trial judge was simply unpersuaded by the evidence before him that the vehicle had been exported. In explaining why, he referred to the evidence which was directly pertinent to that issue and rejected it as insufficient.
- While it is irrelevant which of mainland China or Taiwan the vehicle might have been exported to, this question was of little more than passing concern to the trial judge. The trial judge was far more concerned with the lack of supporting documentation being submitted in evidence and the author of the written statement being unavailable to explain the detail he relied upon. Although the trial judge did not reject the evidence for reasons of hearsay, that concern was implicit in his treatment of the evidence.
[7] For the foregoing reasons, the appeal is dismissed.
[8] The appeal was straightforward and uncomplicated. The basis of the appeal was palpable and overriding error. There were no questions of law to consider. The materials were not voluminous, and argument took little more than one hour to complete.
[9] In the circumstances, I find that the Defendant/Respondent is entitled to costs of the appeal but that those costs should be fixed at only $5,000.00, all inclusive and payable forthwith.
McCarthy J.
Released: July 8, 2021