CITATION: Gualtieri v. Cesana, 2012 ONSC 979

COURT FILE NO.: DC-11-00313-00

DATE: 2012-01-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Anthony Gualtieri

Self-represented

Appellant

• and -

Danilo Cesana

Self-represented

Respondent

HEARD: December 14, 2011

REASONS FOR DECISION

EDWARDS J.

[1] The appellant appeals the decision of the Honourable Deputy Judge A. Fisher, given on May 2, 2011, in the Richmond Hill Small Claims Court. The plaintiff’s claim arises out of the sale of a 1982 Pontiac Trans Am that the appellant suggests was represented to him as one of the original vehicles used in the television program “Night Rider”, which I understand was a popular television program in the early 1980’s.

[2] In argument before me, the appellant limited the grounds for appeal largely to an argument that the learned trial judge misapprehended the evidence with respect to whether a representation was made to him by the respondent that the subject vehicle was one of the so called original vehicles used in the aforesaid television program, and whether, if such representation was made, it was one that induced him into purchasing the vehicle. The appellant abandoned any argument before me with respect to the application of any limitation period.

[3] The trial judge’s reasons for decision as they relate to the issue of misrepresentation found at page 31 of the transcript are reproduced below.

Misrepresentation is a false material statement of fact that induces the defendant to enter into the contract. Now, did that and that alone induce the defendant to enter into the contract? Well, the plaintiff’s evidence was that the car was not for sale. It was the plaintiff’s evidence that the car was merely sitting in his driveway, that it was the defendant who approached the plaintiff on several occasions with regards to buying the vehicle. The plaintiff advised that he was going to have his son fix up the vehicle.

The defendant did not just accept the plaintiff’s word. The defendant came on several occasions. On one occasion for sure where he brought a friend who was a student mechanic to look at the vehicle.

The plaintiff advised and the defendant admitted that at one point the defendant said he did his due diligence and he was convinced that this was one of the original vehicles used in the Knight Rider TV show.

In addition, the defendant admitted that he checked the used car package of previous owners on the vehicle and at one point it showed that the plaintiff purchased the vehicle in California.

Now, the defendant didn’t exactly explain what the due diligence was, but he advised the plaintiff that he did due diligence.

I accept the plaintiff’s evidence that he did not seem anxious to sell the vehicle; that he did not hound the defendant, that it was the defendant who hounded the plaintiff and came after the plaintiff to purchase the vehicle.

So, for all of those reasons, I don’t feel that the defendant just relied on what the plaintiff said, and the plaintiff did say that this is what he was told. The defendant had lots of opportunity to check on what the plaintiff said. The document says there is no warranty or guarantee. The defendant, although he was naïve and only 20 years old, did enter into an agreement to pay for this vehicle, and according to the plaintiff, nothing has been paid. Now why the plaintiff didn’t take back the vehicle is in question.

[4] Both of the parties before me were self-represented, although, a review of their respective factums would lead me to conclude that both may have had some assistance from someone with legal training in the preparation of their factums. In oral argument, both of the parties being self-represented, sought to retry the issue of misrepresentation. An appeal is not a retrial of a case and I am bound by the standard of review set forth by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review for findings of fact, are such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”.

[5] Applying the aforementioned standard of review, there was ample evidence for the learned trial judge to come to the conclusion that the appellant did not just rely on any representation made by the plaintiff about the car, but in addition, had as he indicated “lots of opportunity to check on what the plaintiff/respondent had said to him”.

[6] Given the evidence that the respondent was the one who initiated the ultimate sale of the vehicle in question as opposed to the plaintiff/respondent, I am not satisfied from my review of the record and the learned trial judge’s reasons that there was any overriding and palpable error in the ultimate conclusion that he reached in this matter. The appeal is therefore dismissed with costs. Costs are fixed in the amount of $650 payable by the appellant within 60 days.

Justice M. Edwards

Released: January 10, 2012