ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-471842
DATE: 20140814
BETWEEN:
CLE LEASING ENTERPRISE LTD.
Plaintiff
– and –
JAMES MASON also known as JAMES S. MASON
Defendant
Kevin S. Klayman, for the Plaintiff
Kenneth H. Page, for the Defendant
HEARD: August 13, 2014
B. P. O’Marra j.
ruling on application for summary judgment
1The plaintiff has applied under the simplified procedure and Rule 20.04 of the Rules of Civil Procedure for summary judgment. The dispute arises from the default on a lease of a truck.
2The defendant does not dispute the default or the calculation of arrears and interest. The sole dispute relates to the valuation assigned to the vehicle after it was returned to the lessor.
3On December 21, 2011 the defendant entered into a lease agreement related to a 2011 Peterbilt 330 truck. The defendant agreed to pay a lease term of 60 monthly payments, plus taxes and other fees.
4The lease agreement did not include a current value for the truck or the cost of a purchase option at the end of the term.
5The defendant failed to make payments due from and including March 1, 2012. The defendant was unsuccessful in arranging a credit qualified assignee to take over the lease.
6The plaintiff claims the amount owing as of September 10, 2012 is as follows:
Balance outstanding at the time of arrears
$118,756.74
Interest from date of arrears
1,385.66
Purchase option
10.00
Subtotal
$120,152.40
Less proceeds of sale
47,000.00
Subtotal
$73,152.40
H.S.T. 13%
9,329.68
Banking fees
225.00
Balance owing
$82,707.07
7For the $47,000.00 credit the plaintiff used the appraised value of the truck. There is no evidence the vehicle was sold. The appraisal in support of the figure of $47,000.00 is vague and conclusory.
8The appropriate and fair value of the truck after the lessor regained possession is important in determining the damages owed by the defendant. If the truck was resold after recovery the details would be readily available for assessment of the amount to be credited.
9The defendant does not contest the default but the proper and fair value to be credited for the truck on return cannot be determined on the record before me.
10Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled the court may order a trial of that issue.
Rule 20.04(3).
result
11I am directing that there be a trial of the issue focused solely on the proper value or credit to be assessed for the value of the truck after it was returned to the lessor. The remaining figures (other than interest on the outstanding amount) are not in dispute. This issue could be dealt with in court by a very brief hearing. The trial of this issue can be scheduled before me on an agreeable date in the very near future.
12The issue of costs is reserved until after the fair and proper value for the returned truck is resolved.
B. P. O’Marra J.
Released: August 14, 2014
COURT FILE NO.: CV-13-471842
DATE: 20140814
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CLE LEASING ENTERPRISE LTD.
Plaintiff
– and –
JAMES MASON also known as JAMES S. MASON
Defendant
RULING ON APPLICATION FOR SUMMARY JUDGMENT
B. P. O’Marra J.
Released: August 14, 2014