COURT FILE NO.: 28 35/17SR DATE: 2018/09 /07 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Enterprise Rent-A-Car Canada Company Plaintiff – and – George Bryan Defendant

M. Polvere, Counsel for the Plaintiff M. Cohen, Counsel for the Defendant

HEARD: August 29, 2018 McArthur J.

Introduction

[1] The plaintiff rented a motor vehicle to the defendant that was substantially damaged in an accident during the rental of the vehicle. The plaintiff claims the amount for vehicle damages owing from the defendant pursuant to the rental agreement.

[2] The defendant maintains the damage waiver in the rental contract applies and the defendant did not invalidate the damage waiver. Even if the damage waiver applied, the defendant submits the amount claimed by the plaintiff is excessive and some payments placed onto the defendant’s credit card by the plaintiff were not authorized.

[3] The plaintiff seeks summary judgment against the defendant for total payment of $32,339.06 representing the repair costs of the vehicle.

Factual Background

[4] Mr. Bryan attended an Enterprise office in Pickering, Ontario on March 17, 2017, entered into a rental agreement until March 22, 2017 and took possession of a Jeep Grand Cherokee vehicle. Mr. Bryan extended the duration of the rental of the vehicle beyond the initial date.

[5] Mr. Bryan opted for the damage waiver whereby the plaintiff agreed to waive the defendant’s responsibility for all or part of the cost of damage from loss of theft of the vehicle subject to the actions that invalidate the waiver as listed in the rental agreement.

[6] On April 3, 2017, at approximately 1:00 a.m., according to Mr. Bryan, he stopped at his daughter’s former residence in North York to check if there was mail for her on route to pick his daughter up at her friend’s residence. He left the vehicle outside the entrance to this residence and went inside to check the mail. Mr. Bryan could not recall if he left the vehicle running or not. During his brief time inside this location, the vehicle was stolen. Mr. Bryan says that he called his wife and also called Uber and took an Uber taxi back home. The defendant was unable to produce any documentation to corroborate these calls despite an undertaking to do so.

[7] The vehicle was in an accident at 1:21 a.m. and was subsequently discovered by the police at the side of Highway 401 flipped over after it had rear-ended another motor vehicle. Two occupants of the other vehicle were injured and transported to hospital. The location of the accident was near the Keele Street exit in Toronto. The driver of the vehicle did not remain at the scene, fled and was otherwise never identified.

[8] Later that day at 12:21 p.m., Mr. Bryan contacted the defendant’s office and enquired if the defendant had picked up the vehicle the day before. A representative of the defendant indicated that they had not. Mr. Bryan then advised the plaintiff’s representative that the vehicle had been stolen from his daughter’s residence at 2:00 a.m. and that he left the original ignition keys in the vehicle.

[9] Mr. Bryan then later that day attended the 31 Division of the Toronto Police Department and reported the vehicle was stolen at 1:45 a.m.

[10] Approximately one year later, Mr. Bryan indicates that he subsequently found the vehicle fob in a pair of baggy pants and provided this to his counsel. By that time, the vehicle had long been disposed of for salvage.

The Proceedings

[11] The plaintiff issued a statement of claim for damages to the vehicle. The defendant has filed a defence, claims the damage waiver applies and he owes the plaintiff nothing.

[12] The court received the affidavit of Kaitlyn Thorpe sworn May 2, 2018, the affidavit of George Bryan sworn June 8, 2018, the affidavits of Edna Gavaghan, a representative of the plaintiff. sworn July 13, 2018 and August 1, 2018, along with the June 8, 2018 examination transcripts of George Bryan and Edna Gavaghan.

The Position of the Parties

[13] The plaintiff requests summary judgment against the defendant for the amounts claimed on the basis that there are no genuine issues that require a trial, particularly that the damage waiver was invalidated by the defendant.

[14] Counsel for the defendant submits that summary judgment is not appropriate, there are factual issues in dispute, conflicts in the evidence and that a trial is required.

[15] For reasons that follow, summary judgment shall be granted in favour of the plaintiff.

The Law and Legal Principles

Summary Judgment

[16] Summary judgment motions are governed by Rule 20.04 of the Rules of Civil Procedure which provides:

(2) The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence…

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[17] The principles for summary judgment motions established from the leading cases can be summarized as follows:

1. The judge should first determine if there is a genuine issue requiring trial based only on the evidence before the judge, without using the new fact-finding powers. The judge must ask (1) On the basis of the evidentiary record alone, are there genuine issues that require a trial? and (2) Does the evidentiary record provide the evidence needed to fairly and justly adjudicate the dispute?

2. The onus of establishing that there is no genuine issue requiring a trial rests on the moving party. Where the moving party establishes that there is no genuine issue requiring a trial, the evidentiary onus shifts to the responding party to establish that there is a genuine issue requiring a trial.

3. The judge is entitled to assume that the record contains all the evidence that would be adduced at trial and must take a hard look at the evidence and the merits of the action at this preliminary stage. A party must put its best foot forward, lead trump or risk losing.

4. A responding party must set out in affidavit material or other evidence specific facts that establish that there is a genuine issue requiring a trial and cannot rest on mere denials of allegations of a party’s pleading.

5. There will be no genuine issue requiring a trial if the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).

6. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).

7. The judge may exercise discretion and use the expanded powers provided that their use is not against the interest of justice; that is, using the expanded powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[18] The tests for summary judgment can be expressed as follows:

1. Does the process (a) allow the judge to make the necessary findings of fact?
2. Does the process (b) allow the judge to apply the law to the facts?
3. If the process is a proportionate, more expeditious and less expensive means to achieve a just result.

[19] If the judge is able to reach a fair and just determination on the merits on a motion for summary judgment, there will be no genuine issue requiring a trial.

Analysis

The Damage Waiver

[20] The provisions of the rental contract that are relevant in this case are as follows:

(6) Accidents must be immediately reported in writing to the office where Vehicle rented, and in no event later than the following business days after the accident. Renter and AAD(s) must immediately deliver to the office where Vehicle was rented every process, pleading or paper relating to any claims, suits and proceedings arising from such accident.

(7) Renter accepts responsibility for damage to, loss or theft of, Vehicle, Optional Accessories or any part or accessory occurring during the Rental Period regardless of fault or negligence of Renter or any other person or act of God. Renter shall pay Owner the amount necessary to repair Vehicle or Optional Accessories…If Vehicle is stolen and not recovered or Owner determines Vehicle is salvage, Renter shall pay Owner the fair market value less any sale proceeds. For purposes of this Agreement, fair market value shall be the retail value of Vehicle immediately preceding the loss. If Optional Accessories are not returned Renter shall pay owner the replacement cost of the Optional Accessories. Renter is responsible for all towing, storage or impound fees, and other costs incurred by Owner to recover Vehicle and to establish damages. Renter agrees to pay a sum for loss of use, regardless of fleet utilization, calculated as follows: (i) if Owner determines Vehicle is repairable: total labor hours from the repair estimate divided by 3 multiplied by the daily rate (including any Car Class Change) on Page 1; (ii) if Owner determines Vehicle is repairable and the repair invoice does not include labor hours: the daily rate on Page 1 multiplied by .25; (iii) if Vehicle is stolen and not recovered or Owner determines Vehicle is salvage: 15 days at the daily rate on Page 1. Renter also agrees to pay: (a) an administrative fee of $75.00 when the repair estimate is less than $5,000.00 or greater; (b) a sum for diminishment of value if Vehicle is repairable calculated as 10% of the repair estimate if the damages are greater than $499.99. If Vehicle is returned during non-business hours or to any place other than Branch Address on Page 1, any damage to, loss or theft of, Vehicle or Optional Accessories occurring prior to an employee of Owner checking in and inspecting Vehicle in Renter’s responsibility.

(17) Optional Damage Waiver. If Renter purchases DW, Owner agrees, subject to the actions that invalidate DW listed below, to contractually waive Renter’s responsibility for all of the cost of damage to, loss or theft of, Vehicle or any part or accessory and related costs regardless of fault or negligence…DW does not apply to damage occurring outside.. Renter may wish to check with Renter’s insurance representative or credit card company to determine whether, in the event of damage to, or theft of, Vehicle, Renter has coverage or protection for such damage or theft and the amount of Renter’s deductible or out-of-pocket risk.

[21] The rental agreement also provided that damage waiver is invalidated for any of the following actions which include, where the vehicle is stolen, that the renter failed to do any of the following:

1. Return the original ignition key and owners key tag identifying the vehicle;
2. File a police report within 24 hours after discovering the theft;
3. Cooperate fully with the owner, police and other authorities in all matters in connection with the theft;
4. Ensure the vehicle ignition is turned off at the time the vehicle is stolen.

[22] It is essential to determine the central role of the disputed fact and to consider the state of the evidence in this regard as directed by the Ontario Court of Appeal recently in 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670. That case involved the rescission of a franchise agreement and the central role of the disputed factual issue was whether there was the showing of an earnings projection by the franchisor before a franchise agreement had been signed by the franchisees. The court directed that the judge ought to consider the central role of the disputed factual issue in the litigation and that the judge had to consider the state of the evidence before the court on the disputed factual issues. In that case, the court observed:

[39] …. There was no cross-examination of the appellants’ deponents, including Danny, whose evidence was key. The record that was available to the motion judge consisted of contradictory affidavit evidence on the central factual dispute. It also included inconsistent evidence by William. This was not a case where credibility could be determined by reference to documents the parties exchanged that was contemporaneous or otherwise.

[40] The more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record: A.C. v. Joyce, 2017 ONCA 49, at para. 92. The Supreme Court observed at para. 57 of Hryniak that “on a summary judgment motion, the evidence need not be equivalent to that at trial but must be such that the judge is confident she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly”.

[41] The motion judge ought to have determined whether, in these circumstances, it would have been appropriate, or indeed necessary, to hear oral evidence as he was entitled to require under r. 20.04(2.2). If credibility cannot be assessed on a written record that should be a sign that oral evidence or a trial is required: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55. Here, the motion judge ought to have considered whether oral evidence on the key disputed factual issue would have enabled him to determine the rescission claims on this motion: see for example Hryniak, at para. 51; Choquette v. Viczko, 2016 SKCA 52, 476 Sask. R. 273, at paras. 54-56.

[23] Here the role of the disputed factual issue is whether Mr. Bryan failed to fulfill at least one of the contractual obligations to render the damage waiver invalid.

[24] Counsel for Mr. Bryan submits that the rental agreement did not specify when the original ignition key has to be returned. He did concede during submissions that the inference would properly be that this would have been within a reasonable period of time. In this case the key fob was produced only to the defendant’s own counsel and never returned to the plaintiff. This also must be seen in the context of the defendant in his affidavit indicates that when he reported the theft, he “accidentally stated that I left the keys in the rental vehicle”.

[25] This issue must also be seen within the context of the all of the evidence presented as well. The vehicle had already been in an accident and was flipped on it’s the side along Highway 401 at 1:21 a.m. The defendant had reported initially to the plaintiff at approximately 11:55 a.m. that the vehicle was stolen at approximately 2:00 a.m. and later at 1:45 a.m. and that he did not have the keys. This reference to the time of the theft can only be seen as, at best, substantially incorrect and contrary to the fact that the accident occurred at 1:21 a.m.

[26] The defendant reported the theft to the police and was subsequently charged criminally. That charge was subsequently and recently withdrawn. There was also suspicion that the defendant’s daughter was driving the vehicle at the time of the accident and was not a permitted driver. I do not make any inferences in any way with the reporting, charge, suspicions or disposition in that regard. These features play no role in this decision.

[27] I find Mr. Bryan has failed to prove that he returned the original ignition key and owner’s key tag identifying the vehicle. This was a contractual obligation that the defendant had the onus to establish for the damage waiver to not be invalidated.

[28] I also find that the defendant did not ensure the vehicle ignition was turned off at the time the vehicle was stolen. The defendant admits that he had initially stated that he left the keys in the rental vehicle. The defendant must put his best foot forward on a motion for summary judgment and, as frequently expressed, play trump or risk losing. The defendant simply did not discharge the onus of proving that the vehicle ignition was turned off at the time the vehicle was stolen.

[29] Credibility in respect of these issues is not needed to be addressed nor determined based on the record before me. It is not necessary to hear any further oral evidence in this regard. In addition, the determination in respect of these two contractual obligations noted above disposes of, adjudicates and resolves the dispute between the parties on the record before the court in a timely, affordable and proportionate manner in light of the overall litigation.

[30] As to defendant not cooperating fully with the owner, police and other authorities in all matters in connection with the theft, this feature standing alone may not have been determined simply on the record before the court. Oral evidence would have otherwise been required in regard to that issue. However, this need not be addressed in view of the case being resolved on the other bases as mentioned.

[31] This is likewise for the issue of defendant not filing a report within the time of the theft. This could involve a determination of whether a theft even occurred and as well as other issues including full cooperation and permitting another person to drive. None of these aspects is required to be addressed in view of the case being determined as mentioned previously.

Excessive damages and unauthorized payments

[32] The defendant also indicated that the damage amount claimed by the plaintiff was excessive and that the plaintiff applied the towing and related charges of $1,722.12 on the credit card of the plaintiff and that this was unauthorized.

[33] Paragraph 7 of the rental agreement as outline earlier provides that a renter would owe, in the event of the theft of the vehicle determined to be salvage by the owner, the fair market value being the retail value of the vehicle immediately preceding the loss. In this case, the only evidence presented is that the retail value of the vehicle was in the range of $38,000 to $49,000. The repair costs for the vehicle was estimated to be $32,339.06. The plaintiff used only the repair amount for this motion. The claim by the plaintiff is not excessive.

[34] The charges for towing, impounding and storage were verified by the invoice from York Collision Center. This charge was permitted to be applied to the credit card under paragraph 3 of the rental agreement that authorized the owner to submit for payment of amounts owed to any third parties as a means of deposit or security. I find that the plaintiff was owed such an amount and was authorized to apply this on the defendant’s credit card as provided.

Summary and Conclusions

[35] As a result, there are no genuine issues that require a trial. Summary judgment must issue in the plaintiff’s favour against the defendant.

[36] This court orders that there shall be summary judgment granted in favour of the plaintiff against the defendant in the amount of $32,339.06 plus interest and costs;

[37] As to costs of the plaintiff, it shall, if requesting costs from the defendant make submissions in writing not to exceed 2 pages in addition to any bill of costs plus referenced cases within 15 days of the release of this decision. The defendant shall have 10 days to reply in writing not to exceed 2 pages plus referenced cases.

”Justice M.D. McArthur” Justice M. D. McArthur Released: September 7, 2018

COURT FILE NO.: 2835/17SR DATE: 2018/08/07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Enterprise Rent-A-Car Canada Company Plaintiff – and – George Bryan Defendant REASONS FOR JUDGMENT Justice M.D. McArthur Released: September 7, 2018