CITATION: Michael Mikhail v. Downsview Chrysler Plymouth and Others, 2015 ONSC 2457
COURT FILE NO.: CV-12-464538
DATE: 20150417
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: michael mikhail, mary mikhail and adly mikhail
Plaintiffs/Responding Parties
- and -
downsview chrysler plymouth limited (1964) ltd., peter kepic, carlos baptista, oxford dodge chrysler jeep (1992) ltd. and james bennett
Defendants/Moving Parties
BEFORE: STEWART J.
COUNSEL: Michael Mikhail, Plaintiff, Appearing in Person
Ali A. Chahbar, for the Defendants/Moving Parties
Oxford Dodge Chrysler Jeep (1992) Ltd. and James Bennett
HEARD: October 1, 2014
ENDORSEMENT
[1] The Defendants, Oxford Dodge Chrysler Jeep (1992) Ltd. (“Oxford Dodge”) and James Bennett (“Bennett”), move for summary judgment dismissing this action as against them.
[2] In response, the Plaintiffs argue that genuine issues have been raised by them that require a trial.
Background
[3] On June 9, 2012, the Plaintiffs attended at the Downsview Chrysler Plymouth Limited (1964) car dealership located in Toronto, Ontario ("Downsview Chrysler") for the purpose of purchasing a vehicle.
[4] During that visit the Plaintiffs purchased a 2012 Dodge Charger for a total purchase price of $45,418.44, inclusive of taxes and all other fees and costs.
[5] The vehicle purchased did not initially form part of Downsview Chrysler’s inventory. Downsview Chrysler contacted Oxford Dodge to initiate a dealer trade to obtain the vehicle to supply it to the Plaintiffs.
[6] Oxford Dodge sold the vehicle to Downsview Chrysler for $43,512.91. It was picked up by Downsview Chrysler personnel and brought to their lot. On June 12, 2012, the Plaintiffs attended at Downsview Chrysler to take possession of the vehicle and drove it away from the lot.
[7] Prior to the dealer trade between Oxford Dodge and Downsview Chrysler, the service department of Oxford Dodge performed an inspection of the vehicle. A notation from a lot attendant records that the climate control flow speed was not working properly on the vehicle.
[8] A technician with Oxford Dodge then performed a thorough inspection of the vehicle, checking the functions, codes and modules. All of the vehicle’s functions were found to be working properly. The inspection did not disclose any issue with the climate control flow system.
[9] The inspection of the vehicle's climate control system at Oxford Dodge was recorded in the Chrysler VIP reporting system, a computerized database available to any dealership that wishes to access it. As the air conditioning unit was noted as functioning without incident during the inspection and no malfunction appeared, no repair was performed.
[10] On June 13, 2012, the Plaintiff Michael Mikhail noticed that the air conditioning unit on the vehicle appeared to be malfunctioning. He took the vehicle into a Chrysler dealership in Brampton, Ontario to be inspected. The service department was unable to reproduce the malfunction issue with the air conditioning unit.
[11] On a second visit later that day to the Brampton Chrysler service department, the problem with the functioning of the air conditioning was reproduced.
[12] Michael called Downsview Chrysler to advise of the issue with the air conditioning unit and his desire to return the vehicle due to its defective status.
[13] Downsview Chrysler took possession of the vehicle for approximately a week for the purpose of inspecting and performing repairs to the air conditioning unit. The vehicle was then returned to Michael's possession. He was told the issue with the air conditioning unit had been resolved.
[14] Michael alleges that the vehicle's air conditioning unit still did not work properly even after Downsview Chrysler returned the vehicle to him.
[15] The Statement of Claim was issued by the Plaintiffs on September 28, 2012. It contains claims for damages against all of the Defendants in the amount of $395,416.44, as follows:
(1) the original price of the vehicle ($45,418.44);
(2) damages for acting in bad faith ($150,000.00);
(3) punitive, aggravated and exemplary damages ($100,000.00); and
(4) damages for negligence ($100,000.00).
[16] Over the course of the litigation, the Plaintiffs have settled their actions as against all of the other named Defendants, except for the moving parties.
[17] The Plaintiffs reached a settlement with Chrysler Canada Inc. wherein Chrysler Canada Inc. agreed to buy back the vehicle for the amount the Plaintiffs paid to purchase the vehicle. Chrysler Canada Inc. also contributed an additional $1,000.00 parts and voucher credit for the Plaintiffs use with Chrysler Canada.
[18] The Plaintiffs also reached a settlement with Downsview Chrysler and related individual Defendants and were paid $7,500.00 in full settlement of the Plaintiffs’ action against them.
[19] In addition to continuing their claim against Oxford Dodge, the Plaintiffs have continued to sue Bennett, the President of Oxford Dodge, in his personal capacity. The Plaintiffs have admitted that they have never met, spoken or communicated with Bennett at any point prior to initiating their action.
[20] The Plaintiffs further concede that at no time did Bennett make any direct and/or personal representations to any of the Plaintiffs with regards to the purchase of the vehicle.
Issue: Do the claims against Oxford Dodge and/or Bennett raise a genuine issue requiring a trial?
[21] The approach to be taken on a motion of this nature is set out in the decision of the Supreme Court of Canada in Hryniak v. Mauldin, et al 2014 SCC 7, [2014] S.C.R. 87. A motions judge hearing a Rule 20 motion may consider and weigh all the evidence, make credibility findings if available and dispose of a proceeding without a trial if it is fair and just to do so.
[22] Earlier principles governing Rule 20 motions continue to apply. The responding parties must put their “best foot forward”, and lead “lead trump or risk losing”. The motions judge must take “a good hard look” at all the evidence.
[23] In my view, the record before me reveals that there is no genuine issue for trial insofar as the claims against Bennett are concerned. There is no factual foundation for a finding of liability against him.
[24] Similarly, there is no evidence in the record before me to support a finding of negligence or that Oxford Dodge acted in bad faith in any way. I note as well that there is no contract of purchase between the Plaintiffs and Oxford Dodge.
[25] The facts are not in any serious dispute. Although the Plaintiffs say that they were somehow put at risk, no accident occurred and no special expenses were incurred by them.
[26] It flows from these conclusions that there likewise is no evidence that would support a finding that aggravated, punitive or exemplary damages should be awarded to the Plaintiffs.
Conclusion
[27] In my opinion, there is no issue raised that requires a trial of the Plaintiffs’ action against Oxford Dodge and Bennett. In any event, any damages the Plaintiffs may have sustained as a result of any problem with the air conditioning in the vehicle have been amply compensated by the settlements with the other Defendants.
[28] As a result, the motion is granted. The claims are hereby dismissed.
Costs
[29] If any party seeks costs and that subject cannot be agreed upon by the parties, written submissions may be delivered by Oxford Dodge and Bennett within 20 days of today’s date and by the Plaintiffs within 15 days thereafter.
STEWART J.
Date: April 17, 2015