COURT FILE AND PARTIES
COURT FILE NO.: CV-11-2300-00SR
DATE: 20130531
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: BMW GROUP FINANCIAL SERVICES CANADA, a division of BMW Canada Inc., Plaintiff
AND:
Parul Sagar and Subhadra Sharma, and RBC General Insurance Company, Defendants
BEFORE: Tzimas J.
COUNSEL:
M. Lieberman, for the Plaintiff
Parul Sagar, In Person
Subhadra Sharma, In Person
Aaron Murray, for the Defendant RBC General Insurance Company
HEARD: May 14, 2013
ENDORSEMENT
Motion for Summary Judgment and Motion for Consolidation
[1] The plaintiff, BMW Group Financial Services Canada, (BMW), brought a motion for summary judgment against the defendants Parul Sagar and Subhadra Sharma for the sum of $50,104.80 inclusive of principal and accrued interest as of January 19, 2011, as well as pre and post-judgment interest and costs of the action.
[2] The claim arises out of a Lease Agreement for a BMW vehicle between BMW and the lessees. The defendant Parul Sagar leased a BMW vehicle on September 27, 2007. His name appears on the Lease Agreement and he signed that agreement.
[3] The defendant Subhadra Sharma is listed as a co-lessee to the Lease Agreement. However, on a close review of the document, it is far from certain that Mrs. Sharma actually signed the agreement.
[4] Mr. Sagar’s vehicle was reported stolen on May 27, 2009. Mr. Sagar advised both BWM and RBC General Insurance Company (RBC) of the theft. Until that date, Mr. Sagar made regular payments to BMW as required by the Lease Agreement. Following the alleged theft, he stopped further payments to BMW and took the position that RBC was obliged to assume the balance of the debt to BMW. Mr. Sagar opposes BMW’s motion for summary judgment on that basis. RBC has refused to compensate Mr. Sagar for the loss.
[5] Mrs. Sharma, who like her son is self-represented, filed her own statement of defence. Its contents is virtually identical to Mr. Sagar’s statement of defence. However, in court, Mrs. Sharma stated that she had no knowledge of any agreement, of any documents or pleadings, that it was her son who brought her to court on this motion, and that she did not understand the proceeding underway. She opposed the motion for summary judgment for these basic reasons.
[6] In addition to their submissions on BMW’s motion, Mr. Sagar and Mrs. Sharma brought in effect a cross motion seeking to consolidate the BMW action with the action that they say they commenced against RBC bearing Court File No. CV-10-1779-SR, for its refusal to cover the loss that they have suffered. They say that the issues between them and BMW and their issues between them and RBC have similar facts and should be tried together. The two defendants are also unrepresented in this proceeding. Their materials are incomplete and defective.
(a) Motion for Summary Judgment: Is there a triable issue?
[7] BMW’s action amounts to a claim to collect on an outstanding debt by the defendants. BMW alleges that a Lease Agreement was signed in September 2007 with the defendants, that the defendants honoured that agreement for two years, but that they defaulted shortly after May 2009, when Mr. Sagar reported the theft of the vehicle.
[8] BMW also says that the Lease Agreement is a complete agreement, that the defendants were required to have insurance coverage for the said agreement and that the theft of the vehicle did not absolve the defendants of their liability to BMW.
[9] The Lease Agreement between BMW is a lengthy agreement. The salient parts for the purposes of this motion are paras.1-9, which outline in detail the breakdown of the pertinent financial figures and paras. 15, 16, and 17 which deal with default and the liability implications in the event of a theft. In short, the liability burden on the defendants, is neither waived by BMW nor transferred automatically away from them to RBC because of the alleged theft. To the contrary, the defendants must pay BMW the balance of the monies owing and seek reimbursement from RBC.
[10] According to the Lease Agreement, Mr. Sagar traded in a vehicle and received a credit of $10,000. He also gave a down payment of $1,995 at the time that his vehicle was delivered to him. Thereafter, he assumed the obligation of monthly payments in the sum of $905.75, payable on the 27th day of each month starting on September 27, 2007. Such payments were to continue until September 27, 2010, at which point they would have the option to purchase the car for the sum of $37,400.
[11] In their respective statements of defence, the defendants admit that they entered into a Lease Agreement for a vehicle with BMW. They also plead that they obtained the necessary insurance coverage. They then admit that they stopped making lease payments shortly after May 27, 2009 when the vehicle was reported stolen.
[12] Both defendants plead that immediately following the theft, the responsibility to continue the payments to BMW shifted to RBC. For that reason, they say that they are not liable for any payments to BMW. They say that the triable issue for the court relates to RBC and its obligation to assume the liability to pay the balance of the debt to BMW.
[13] Contrary to Mr. Sagar’s and Mrs. Sharma’s submissions, there is nothing in the agreement to suggest that in the event of a theft or other form of loss the liability for any outstanding payments would automatically shift to RBC.
[14] RBC has not assumed the payment of the outstanding monies that are owed to BMW. Neither BMW nor the lessees put before the court any copies of any defences by RBC explaining the reason for its refusal to cover the defendants’ alleged loss. There is one reference in the materials that suggests that RBC is refusing to cover the lessees’ loss because it is questioning the validity of the reported theft. Whatever RBC’s explanation, it has nothing to do with BMW or BMW’s action against Mr. Sagar or Mrs. Sharma.
[15] Insofar as BMW is concerned, given Mr. Sagar’s express admission that he stopped paying his monthly instalments once the car was stolen and that he has not paid BMW, there is no issue to be tried, at least in relation to Mr. Sagar.
[16] In submissions to the court, but not in evidence and not anywhere in the statements of defence of either of the defendants, Mr. Sagar questioned BMW’s accounting. He said that he wanted to revisit the accounting from BMW and he asked for more time so that he might advance new defences, including facts surrounding the proper valuation of his trade-in. He also said that he understood his trade-in to be valued at $38,000 and not at $10,000.
[17] Mrs. Sharma said that she knew nothing of the contract, or the debt, that she never co-signed any contract for the leasing of a vehicle, that she was not aware of the statement of defence with her name on it, that her English was poor, that her son brought her to court for the motion, and she was not understanding what was going on.
[18] The defendants’ respective submissions raise certain difficulties that need to be addressed. Mr. Sagar purported to raise new facts that have not been pleaded and that are not in evidence. His submissions are troubling because at no time until the hearing of the motion did Mr. Sagar take issue with the various financial components of the lease. He did not question the value of $10,000 attributed to his trade-in vehicle. He met his obligations regularly without question.
[19] Presumably, the insurance he obtained from RBC was also on the basis of the values that were recorded and reflected on the face of the Lease Agreement. It is highly suspect at this point to suggest that in a future defence Mr. Sagar would elicit evidence to try to invalidate the BMW Lease Agreement. The proposed direction suggests a delay tactic, something that is not in Mr. Sagar’s interest, especially given an accumulating annual interest rate of 18% against the alleged debt.
[20] Mr. Sagar has the obligation to put his best foot forward and he must be able to demonstrate a real chance of success against BMW. See: Canadian Imperial Bank of Commerce v. Mitchell, M2010 15816 (ON S.C.) at para. 20, Rozin v. Ilitchev et al., 2003 Can LII 21313 (ON C.A.) at para.8 and Kahyeri v. Shayangogani, [2003] O.J. No. 3381,. affd., [2004] O.J. No. 1193 (C.A.) at para. 28. The new theory being proposed is not putting the best foot forward. Nor, in light of the evidence does it demonstrate a real chance of success against BMW.
[21] The reality seems to be that Mr. Sagar’s problem is with RBC’s coverage refusal and not with BMW. That is where he ought to concentrate his efforts to address his loss.
[22] Mrs. Sharma’s submission in court presents a different challenge. Although she served and filed a defence that is essentially the same as the defence by her son, she told the court that she knew nothing of the Lease Agreement, that she did not sign any document, that she did not understand why she is named a defendant, that she was in court because her son told her to come, that her English is poor and that she did not understand the proceeding underway, raise a serious concern.
[23] On closer look at the evidence before the court, limited as it is, I note the following problems:
(a) the cover page of the Lease Agreement names only Mr. Sagar;
(b) there are initials at the bottom of each page of the Lease Agreement but I am uncertain if those initials belong to Mrs. Sharma;
(c) the signing page clearly reflects Mr. Sagar’s signature but the signature line for a co-lessee is blacked out and in any event it is far from clear that Mrs. Sharma signed this document; and
(d) RBC’s insurance coverage is only in Mr. Sagar’s name.
[24] These irregularities give me pause for concern. I am not certain that Mrs. Sharma actually co-signed the Lease Agreement. I am also concerned that her attendance in court may have been the first time she had the opportunity to say anything about this matter.
[25] Given the limited and incomplete evidence before the court regarding Mrs. Sharma’s connection to this dispute, it is in the interests of justice to have the question of Mrs. Sharma’s liability to BMW go to trial. At this point in time, I am prepared to accept Mrs. Sharma’s submission on its face and deny summary judgment against her. To be clear, the claim against Mrs. Sharma is not dismissed. It is open to BMW to proceed to a trial as it might relate to Mrs. Sharma. If, as a result of a trial Mrs. Sharma’s alleged lack of involvement or knowledge proves to be false or otherwise misleading, it will be open to BMW to seek the appropriate costs award against Mrs. Sharma.
[26] In the circumstances, summary judgment is granted in favour of BMW only against Mr. Sagar in the sum of $50,104.80. Pre and post-judgment interest is to apply at the rate of 18% in accordance with the Lease Agreement. Costs for this motion are fixed at $2,500.
(b) Motion for Consolidation: Should the two actions be consolidated?
[27] Mr. Sagar purports to bring a motion to consolidate the BMW action with his action against RBC. Mrs. Sharma has her name on these materials but her connection to the motion and RBC raises serious doubts.
[28] The issues to be tried as between BMW and the defendants and as between Mr. Sagar and RBC are separate and distinct. BMW’s action is a collection on a debt. Mr. Sagar and possibly Mrs. Sharma have obligations to BMW irrespective of whether or not RBC covers their loss.
[29] The action against RBC is a claim for coverage. The reasons for RBC’s denial are separate and distinct from the debt owed by the defendants to BMW. To consolidate the two actions would be to complicate the issues, to cause delay, and to increase the costs associated with the two matters.
[30] In addition, the materials filed by Mr. Sagar are incomplete. Mr. Sagar purports to represent Mrs. Sharma and both are self-represented. Rule 15 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 is clear that a litigant may represent him or herself, or retain a lawyer. But, he or she cannot be represented by another individual who is not a lawyer. Mr. Sagar is therefore not permitted to represent Mrs. Sharma. Furthermore, it is not at all clear that Mrs. Sharma even has a cause of action against RBC. The RBC policy does not name her. The statement of claim against RBC might explain Mrs. Sharma’s connection to the case, but neither she nor Mr. Sagar filed with the court the pleadings relating to that action. The motion materials are therefore incomplete and incapable of supporting the proposed consolidation of the two actions.
Order
[31] For the reasons noted above, the following order shall be issued accordingly:
(1) Summary judgment is granted in favour of BMW only against Mr. Sagar in the sum of $50,104.80. Pre and post-judgment interest is to apply at the rate of 18% in accordance with the Lease Agreement, and costs for this motion are fixed at $2,500; and
(2) The motion for consolidation is dismissed without costs.
Tzimas J.
Date: May 31, 2013
COURT FILE NO.: CV-11-2300-00SR
DATE: 20130531
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BMW GROUP FINANCIAL SERVICES CANADA, a division of BMW Canada Inc., Plaintiff
AND:
Parul Sagar and Subhadra Sharma, and RBC General Insurance Company, Defendants
BEFORE: Tzimas J.
COUNSEL:
M. Lieberman, for the Plaintiff
Parul Sagar, In Person
Subhadra Sharma, In Person
Aaron Murray, for the Defendant RBC General Insurance Company
ENDORSEMENT
Tzimas J.
DATE: May 31, 2013