RAH Transport Inc. v. Pride Truck Sales Ltd., 2024 ONSC 1420

DIVISIONAL COURT FILE NO.: DC-23-37

DATE: 20240312

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: RAH Transport Inc. and Richard Anthony Hudson, Appellants

AND:

Pride Truck Sales Ltd. and TPINE Leasing Capital Corporation and CLE Capital Inc., Respondents

BEFORE: Backhouse, D.L. Corbett and O’Brien JJ.

COUNSEL: Mr Hudson, self-represented and for his company RAH

Maria Grubisic, for the Respondents

HEARD at Brampton: March 5, 2024

ENDORSEMENT

D.L. Corbett J. (Orally)

[1] This is an appeal from a trial decision of Justice LeMay dated May 12,2023 (reported at 2023 ONSC 2893) dismissing a claim by Mr. Hudson’s company in respect of two leased trucks and granting a claim against Mr. Hudson and his company in respect to the trucks.

[2] The appeal comes to us as of right as an appeal from the final order of a Superior Court judge within the monetary jurisdiction of the Divisional Court pursuant to section 19 (1) (a) of the Courts of Justice Act. Mr. Hudson argues before us that the trial judge made a palpable and overriding error in finding that there was a sticker on the passenger side door of the truck. In support of this argument, he took us to page A378 and argued that this photo shows a sticker on the driver’s side of the truck, not the passenger side.

[3] This argument is not available on appeal. It was not put to the respondent witnesses in cross examination and the argument was not made to the trial judge. To the extent that it was raised at all below, it was raised in responding costs submissions as noted in the trial judge’s cost endorsement at paragraph 13. The appellant notes that the trial judge declined to deal with the issue after releasing his trial judgment and suggested that it should be addressed on appeal.

[4] We appreciate that the trial judge’s comment in his Costs Endorsement could have been understood by the appellant as an invitation to make a fresh argument on appeal, however that is not a basis on which this court will permit a party to raise a new argument on appeal.

[5] Parties are expected to present all their evidence and make all their arguments at trial and when they fail to do so, they cannot expect to reopen the fact-finding process during costs submissions or on appeal. On the record before the trial judge, on the basis of the case as argued below, there is no palpable and overriding error.

[6] The appellant also noted an inspection report from Canada Cartage that appears inconsistent with the evidence of an inspection and sticker in February 2019.

[7] The question before us is not whether there was some evidence inconsistent with the trial judge’s factual findings, but whether the trial judge made a palpable and overriding error in the findings that he did make. Respecting the sticker, the trial judge had the oral evidence of the respondent, the invoice from PREM, and a photo of the sticker which, taken together, provide a basis for his conclusion.

[8] The appellant candidly acknowledged that his other primary arguments on appeal turn on the main factual findings concerning the sticker.

[9] The decision below was primarily fact-driven: the law stated and applied by the trial judge concerning conditional sales contracts and basic contractual principles respecting recission discloses no error. The trial judge provided detailed reasons for his factual findings, and they do not disclose any basis for us to intervene.

[10] We understand that the appellant sincerely and strongly disagrees with the trial judge’s conclusions. However, the decision below is grounded in evidence that was before the court below and there is no legal or procedural error justifying intervention, and therefore the appeal must be dismissed.

[11] The respondent sought $10,000 in costs. In our view this matter was in respect to a modest amount of money (albeit an important amount for the appellant) and the issues raised on appeal were straightforward. We would limit costs to $2,500, inclusive, payable by the appellant to the respondent within 30 days.

D. L. Corbett J

I agree _______________________________

Backhouse J.

I agree _______________________________

O’Brien J.

Date of Release of Oral Reasons: March 5, 2024

Date of Release of Written Endorsement: March 12, 2024