ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-102882
DATE: 20120827

BETWEEN:

Nicola Chiaravalloti and Bona Via Bakery Plaintiffs – and – Leading Edge Auto Collision and Parbattie D. Budhu Defendants

David Bernstein, for the Plaintiffs

Amanda Potasky, for the Defendants

HEARD: July 31, 2012

REASONS FOR DECISION

EDWARDS J.:

Overview

[ 1 ] The plaintiff has the misfortune to be struck in a rear-end motor vehicle collision by a driver whose licence was suspended. The owner of the rear ending vehicle (the “vehicle”) had cancelled the insurance on the vehicle. The plaintiff upon discovering the vehicle had been left at an auto body repair shop allegedly for mechanical repairs as opposed to body repairs then commenced a separate action against Leading Edge Auto Collision (“Leading Edge”) and one of the partners of Leading Edge. As it turns out Leading Edge is also not insured.

[ 2 ] The claim that is now asserted as against the defendants in this action is one based on an alleged bailor/bailee relationship. The defendants move for summary judgment on the basis of an argument that no such relationship existed. If the plaintiffs are unsuccessful in resisting the motion for summary judgment and this action is dismissed, the plaintiffs will still have a claim as against the plaintiffs own insurer pursuant to the uninsured coverage provisions of the standard automobile policy of insurance.

The Facts

[ 3 ] The owner of the vehicle is a Mr. Singh (“Singh”) who is named as a defendant in a companion action as the owner of the vehicle which was being driven by a Mr. Ramawadh (hereinafter referred to as “Dave”). The motor vehicle accident occurred on June 19, 2007. The vehicle owned by Singh was a 1991 Oldsmobile which he had purchased in 2005.

[ 4 ] Singh was acquainted with Dave as a result of a relationship with one of his cousins. Dave was employed at Leading Edge. In January 2007 Singh having experienced mechanical problems brought the vehicle to Leading Edge where it is alleged that he met with Dave and Mr. Isaac Madahai (hereinafter referred to as “Madahai”). Mr. Madahai is a manager of Leading Edge.

[ 5 ] The evidence as to what then occurred at Leading Edge is very much in dispute. Singh alleges that Madahai was introduced to him as a master mechanic and the owner of the garage and that they discussed the possibility of repairing his vehicle. It is alleged by Singh that Mr. Madahai was actively involved in determining what, if any, repairs were required and what the costs of those repairs would be.

[ 6 ] Madahai takes the position that at no time was he involved in any discussions with Singh concerning repairs to his vehicle and that to the contrary Leading Edge is not involved in performing mechanical repairs but rather is solely in the business of repairing the body of a vehicle after an automobile collision.

[ 7 ] Madahai maintains that he had given permission to Dave to undertake repairs but that any such repairs were an issue as between Singh and Dave and had nothing to do with Leading Edge itself.

[ 8 ] Regardless of what the involvement of Madahai and Leading Edge was with Singh the fact still remains that once an estimate was provided to Singh, he decided not to undertake the repairs given the quoted cost. All of these events concerning the possibility of the repair to the vehicle and the estimate occurred in the early part of 2007 at least five months prior to the accident.

[ 9 ] In the five month period after Singh had advised Dave and possibly even Madahai that he was not going to proceed with the repairs, Dave continued to drive the vehicle. The evidence is clear that Dave did not have a drivers licence as it was the subject matter of a licence suspension. The reasons for the suspension of his license were not made clear from the evidence before me.

[ 10 ] In the five month period after Singh had advised Dave and again possibly may even have advised Leading Edge of his intention not to proceed with the repairs, Singh cancelled his policy of insurance with his automobile insurer.

Nature of the Relationship between the Plaintiff and Leading Edge

[ 11 ] There are three possible scenarios that answer the question of what relationship, if any existed between Singh and Leading Edge. The first is that there was no relationship at all. Singh can on this scenario, at best be said to be a friend of Dave who gratuitously offered to repair the Singh vehicle – an offer that never progressed because of the cost.

[ 12 ] The second possible relationship is one of bailor/bailee. Such a relationship flows from the possible factual conclusion that Leading Edge, in accepting the responsibility to repair the vehicle, became the bailee of the vehicle. Bailment can best be defined by reference to a decision of the Ontario Court of Appeal in Punch v. Savoy’s Jewellers Ltd. et al. [1986] O.J. No. 2925 , where the Court of Appeal defined bailment as follows: “…the delivery of personal chattels on trust, usually on a contract, express or implied, that the trust shall be executed and the chattels be delivered in either their original or altered form as soon as the time for which they were bailed has elapsed. It is to be noted that the legal relationship of bailor and bailee can exist independently of a contract. It is created by the voluntary taking into custody of goods which are the property of another.”

[ 13 ] The third possible relationship that may flow from the facts before this court is that of a gratuitous bailment. While the facts may well support an initial finding of a bailee and bailor relationship when the vehicle was first dropped off for a repair quotation, it may be said that when Singh chose not to proceed with the cost of repair, and when he failed to pick up his vehicle from Leading Edge, that the relationship changed. The relationship changed as no contract was ever concluded between Singh and Leading Edge. No consideration exchanged hands between Singh and Leading Edge. In such a situation, the highest one can put the relationship between Singh and Leading Edge is one of a gratuitous bailment between the plaintiff and Leading Edge. The plaintiff in such a scenario can at best be said to be a friend of the plaintiff and Leading Edge.

Summary Judgment

[ 14 ] Recognizing that this is a motion for summary judgment, I must ask myself the question as to whether a full appreciation of the evidence and issues required to make dispositive findings can be achieved on this motion for summary judgment or whether this full appreciation can only be achieved with the full forensic machinery of a trial. The full appreciation test as it has now been described in the recent Court of Appeal decision of Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 at paras. 50-52 has provided motions court judges with a useful benchmark from which to approach motions like the one before me. As the Court of Appeal stated:

We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interests of justice. In cases that call for multiple findings of fact and the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings.

[ 15 ] It would be an appealing resolution to the motion to simply say there are conflicting facts that require that this matter proceed to trial. The fact remains, however, that while there may be conflicting facts as to exactly what occurred when Singh dropped off his vehicle at Leading Edge so as to determine whether or not any relationship existed or whether one of bailor/bailee existed, what is inescapable on the facts before me is the fact that Singh chose to leave his vehicle at Leading Edge for in excess of five months during a period of time when he cancelled his insurance. On these facts, I have a full appreciation for exactly what occurred and the most reasonable conclusion to reach on these facts is that Singh simply chose to abandon his vehicle. At best, the relationship that existed at that point in time is one of a gratuitous bailor/bailee.

[ 16 ] Having determined that the relationship between Singh and Leading Edge is one of gratuitous bailment, the next question of what legal responsibility then flows from such a conclusion. Where there has been a determination of gratuitous bailment, the bailee (i.e., in this case, Leading Edge) would only be liable if there can be a finding of gross negligence on the part of Leading Edge in relation to the subject motor vehicle accident. In Backmirzie v. 1500569 Ontario Ltd. [2006] O.J. No. 4831 , Howden J. best explained the distinction between a bailee for reward versus a gratuitous bailment as follows:

There is no doubt that the standard of care of a bailee for reward is higher than that of a gratuitous bailee. However, I do not accept that the trial judge applied the gratuitous bailee standard in this case of misfeasance by third parties. A gratuitous bailee is not liable in law in the case of misfeasance by third parties where the property is stolen, unless it can be shown that the bailee was grossly negligent in its control or custody.…The standard of care expected of a bailee for reward was enunciated by the master, taken from Halsbury (2 nd edition) paragraph 1232:

A custodian for reward is bound to use due care and diligence in keeping and preserving the article entrusted to him on behalf of the bailor. The standard of care and diligence imposed on him is higher than that required of a gratuitous depositary, and must be that care and diligence which a careful and vigilant man would exercise in the custody of his own chattels of a similar description and character in similar circumstances.

[ 17 ] The subject motor vehicle accident was a rear end motor vehicle accident. There is no evidence before me that any defect in the vehicle was causative of the accident. In the absence of any evidence filed on this motion by the plaintiff to establish gross negligence on the part of Leading Edge, there are simply no facts upon which a finding of liability can be made against the defendants. This is a case where this court does have a full appreciation of the evidence sufficient to allow this court to make determinations as to the nature of the legal relationship between Singh and Leading Edge and to then come to the conclusion that there was a complete absence of evidence to establish gross negligence. Singh chose to cancel his insurance. Singh chose to abandon his vehicle. There is no evidence of gross negligence on the part of Leading Edge that can be said to in any way to have caused the subject motor vehicle accident involving the plaintiffs. The plaintiffs’ action is dismissed. Given the findings of this court with respect to the summary judgment motion, it is not necessary to deal with the alternative motion to strike the plaintiffs’ claim pursuant to Rule 21.

[ 18 ] If the parties cannot resolve the issues of costs then counsel for the defendants is to arrange a time to argue the issue of costs by oral submissions, which oral submissions shall be preceded by written argument, limited to five pages in length by both parties.

Justice M. Edwards

Released: August 27, 2012