CITATION: 2021 ONSC 6106
DIVISIONAL COURT FILE NO.: 107/20
DATE: 20210915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
FANG FAN
Plaintiff/Appellant
– and –
2402472 ONTARIO INC. carrying on business as AVENUE NISSAN DEALER
Defendant/Respondent
Fang Fan, self-represented Plaintiff/Appellant
Ilan Mints for the Defendants/Respondent
HEARD: by videoconference on September 14, 2021
PENNY J.
REASONS FOR JUDGMENT ON APPEAL
Overview
[1] This is an appeal from deputy judge Timms of the Small Claims Court, dismissing Mr. Fan’s claim for the value of a provincial government rebate associated with his purchase of a 2018 electric Nissan Leaf from the defendant.
[2] At trial, the plaintiff argued that the defendant promised he would be able to receive a rebate from the province of Ontario, relying on an email of August 20th, 2018, in which the Nissan sales agent said that the vehicle was “eligible for government incentive.” The trial judge held however, that “eligibility is not the same as a promise, as the final decision to grant a rebate lies with the government.”
[3] This finding was made after consideration of the contract, which placed responsibility for seeking the rebate from the government squarely on Mr. Fan and in which the defendant disclaimed any liability for making or underwriting the rebate, email communications between the parties and the oral testimony of Mr. Fan and the defendant.
[4] On appeal, the plaintiff now argues that the Nissan witness lied under oath, that Nissan knew the electric car it sold to him would not qualify for the rebate and that someone else received “his” car and the associated rebate.
[5] The problem with these arguments is that they were never advanced at trial and the evidence necessary to make these arguments was never put before the trial judge. They are based entirely on Mr. Fan’s “belief” or speculation, having lost the trial on the claim he did make at the time.
[6] The timing of the purchase was in the midst of the Ontario government’s termination of the rebate program. Nissan’s evidence was that there was uncertainty about when and how the program would actually be terminated. In particular, Nissan reasonably believed that as long as the order number of a purchased electric vehicle was provided before the deadline, the VIN number could be provided later and the government would allow the rebate. Nissan adduced documentary evidence that it did provide to the government the order number of Mr. Fan’s car before the deadline. The VIN number was not yet available because the car had not yet been made. After the government denied Mr. Fan’s application for a rebate on the basis that no VIN number had been provided, the defendant assisted Mr. Fan by confirming to the government that the car had been ordered before the deadline, at a time when the VIN was not yet available. At the time of trial, no further response had been received from the government.
[7] Mr. Fan is, in effect, asking this court to make dispositive findings of credibility never argued before the trial judge, and to reweigh the evidence that was before the trial judge. That is not the job of the court on appeal.
[8] An appeal on an error of law is subject to the standard of correctness. However, Mr. Fan does not argue that the trial judge made an error of law. His argument on appeal is that the trial judge accepted the defendant’s evidence, but that the defendant was lying. This is an issue of fact. The standard of review on appeal for an error of fact is palpable and overriding error. Palpable and overriding error is a very deferential standard which does not permit the judge on appeal to re-weigh the evidence on the merits. The appellant must show a serious error that had a material impact on the outcome. Here, there was evidence to support the trial judge’s conclusion: the contract specifically put responsibility on the buyer to seek the rebate and disclaimed any liability on the part of the dealer; the representation by the dealer that the car was “eligible”, as the trial judge noted, was not a promise or a guarantee; and the defendant reasonably believed the car was “eligible” for the rebate and assisted the buyer in trying to convince the government that the car qualified.
[9] I can find no palpable and overriding error of fact in the trial judge’s reasons.
[10] The appeal is therefore dismissed.
[11] The defendant sought costs of $4,100. This is a significantly smaller sum than that claimed by Mr. Fan, had he been successful. I award costs of $4,000 to Nissan.
Penny J.
Released: September 15, 2021
CITATION: 2021 ONSC 6106
DIVISIONAL COURT FILE NO.: 617/19
DATE: 20210915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
FANG FAN
Plaintiff/Appellant
– and –
2402472 ONTARIO INC. carrying on business as AVENUE NISSAN DEALER
Defendant/Respondent
REASONS FOR JUDGMENT on appeal
Released: September 15, 2021