COURT FILE NO.: CV-14-509630
DATE: 20181127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Garfield Anthony Hibbert
Plaintiff
– and –
New Roads National Automotive Group, A Division of New Roads Leasing
Defendant
Vivek David, Counsel for the Plaintiff
Michael N. Freeman, Counsel for the Defendant
HEARD: November 14 and 15, 2018
D.A. Wilson J.
[1] On February 24, 2011, the Plaintiff Garfield Hibbert (“Hibbert”) signed an agreement with the Defendant New Roads National Leasing (“New Roads”) to lease a 2004 Black Hummer for a four year period. After he took possession of the car, Hibbert alleges he experienced nothing but problems and he paid thousands of dollars for repairs. Eventually, he stopped making the lease payments and the Hummer was repossessed. The Plaintiff brings this lawsuit asserting the Defendant made a negligent misrepresentation, breached the contract and as a result, the Plaintiff is entitled to damages. The Defendant disputes the allegations and argues that the Plaintiff got exactly what he contracted for.
The Lease
The Plaintiff’s Evidence
[2] Hibbert testified that he had previously leased a vehicle through Shaun Jalili (“Jalili”), who worked at Carnival Leasing. He met Jalili in November of 2010 and told him he was interested in leasing a Hummer. Jalili was working at the Defendant by that time and he indicated that he expected to have a Hummer to lease in February of 2011. Hibbert had leased a Hummer previously so was familiar with the vehicle.
[3] Hibbert went to meet with Jalili and he liked the vehicle, which was a 2004 Hummer. He recalled the odometer reading was approximately 77,000; he was not certain if it was miles or kilometres. Hibbert testified that it was important to him that the mileage was low; Jalili explained that the vehicle had been leased by an elderly couple who did not drive the car very much so he assured him the car did not have high mileage.
[4] Jalili asked if he was interested in leasing the car and the Plaintiff indicated that he was so a lease was prepared. Hibbert confirmed that Jalili guided him through the lease. Hibbert acknowledged that he initialled in various sections, including the one that notes “This vehicle was not sold with a service plan/contract.” However, Hibbert testified that there was no discussion about a service package or who was responsible for paying for repairs. Furthermore, he stated that he was not aware the vehicle came from the United States, even though the lease notes that the car came from Michigan and Hibbert initialled that section.
[5] Hibbert signed the lease and initialled various sections of it. He denied that he read the lease or that he discussed the issue of a service plan with Jalili. Hibbert denied that he was told the car was from Michigan, even though he initialled the box indicating that he was aware of this fact. The Plaintiff testified that he made a $3,400 down payment initially but made three or four further payments for a total down payment amount of $8,000. He does not have receipts for these additional payments.
[6] The Plaintiff did not qualify for the lease because there was an outstanding judgment against him for child support. As a result, his cousin, Jason Fowler, co-signed the lease along with the Plaintiff. After signing the lease the Plaintiff took the vehicle; he was happy with it.
The Events After the Lease Was Signed
[7] Hibbert’s happiness was short-lived, according to his testimony. As he was driving home from New Roads, he realized the speedometer was not functioning properly as it indicated he was driving at 200 km/hour. Furthermore, the remote did not work. He called Jalili after he arrived home and he took the car back and these items were fixed by New Roads at no charge.
[8] The Plaintiff testified that the problems with the Hummer continued. The passenger door would not open and he paid $500 to have it fixed; he has no receipt for this expense. He took the Hummer for alignment and was advised it could not be done because the car was unsafe. Hibbert described various problems with the vehicle, which he had to have fixed: starter, $542.40; exhaust system, $429.40; various parts, $563.86; serpent belt, $124.20; battery, $128.81; painting, $2,887.50. He had to rent a car for the month of June 2012 while work was being done on the Hummer, for a cost of $1,068.60.
[9] Each time there was a new issue that required repair, he called Jalili, who advised that New Roads was not responsible to pay for the repairs.
[10] One day in June 2011, he was driving on the highway and there was a problem with the steering; the drive shaft broke. He could not control it and he hit the guardrail, damaging the vehicle on the driver’s side at the front. Although it was difficult to discern from his testimony exactly how this incident occurred, Hibbert did not call the police. He called Jalili who told him that New Roads would not pay for the repairs. His cousin, Jason, tried to get the insurer to pay but they refused on the basis the damage was the result of mechanical breakdown, which was not covered under the policy.
[11] In June 2012, Hibbert issued an action in Small Claims Court claiming damages of $25,000 for the various repairs to the Hummer. He received a letter from the Defendant dated May 3, 2012 advising that the lease was in arrears in the sum of $12,808.71 and that if the payments were not brought up to date, the Hummer would be repossessed. He stopped making the lease payments on the vehicle and in 2013, it was repossessed by New Roads.
The Evidence of Shaun Jalili
[12] Jalili worked at New Roads for six or seven years running the leasing and sales department for the high end luxury vehicles. Prior to that, he worked at Carnival Leasing for four years. He became acquainted with Hibbert when he leased a Hummer from him when he was working at Carnival Leasing.
[13] Jalili explained that the information concerning the cars is available online so most customers come to the dealership having checked out the vehicle they are interested in. According to Jalili, 99.9 percent of the customers take the vehicle they are thinking of leasing or buying for a test drive. If a customer wished to have an inspection done elsewhere, that was acceptable to New Roads. Jalili always offered the extended service package to customers and went over the terms of the lease; he always provided a copy of the signed lease to the customer.
[14] Jalili recalled that as soon as Hibbert saw the Hummer, he fell in love with it and that was the only vehicle he was interested in leasing. It was a used car; Jalili recalled that it had been owned by another customer who had numerous vehicles so he did not drive it very much. He explained that to the Plaintiff but denied he ever said that it had been driven by an elderly couple.
[15] Jalili recalled the Plaintiff had difficulty getting financing because he had a poor credit rating so his cousin had to co-sign the lease with him. Jalili went over the terms of the lease with Hibbert and he was certain that the Plaintiff read the document. They discussed a service package but Hibbert was not interested in purchasing one. He told the Plaintiff that the car was American and the odometer was in miles and not kilometres. He also confirmed that the vehicle had been certified. The Plaintiff and his cousin signed the lease and took the vehicle.
[16] The following day, Jalili recalled Hibbert contacted him about the key remote not working and the speedometer being inaccurate. As a goodwill gesture, Jalili told him to bring the car back and these items were fixed at no charge to the Plaintiff.
[17] A few months later, Hibbert contacted Jalili and said there was damage to the car that needed to be repaired. He brought the Hummer in to New Roads and Jalili said it was clear the car had been involved in a collision as the bumper was sideways, the paint was chipped, and there was other damage on the door. According to Jalili, when Hibbert took the car on February 24, it was a 10/10 and when he returned a couple of months later, it was a 2/10. He told Hibbert that New Roads would not fix the damage as it was physical damage that had occurred while the vehicle was in the possession of the Plaintiff and under the terms of the lease, he was responsible for repairs.
[18] Jalili testified that under no circumstances would he or anyone at New Roads tamper with the odometer since that could result in the dealership losing its license. Furthermore, Jalili was not certain that the odometer could be altered since it was likely digital.
[19] In cross examination, Jalili was asked about the discrepancies on the odometer readings. He testified that individuals report mileage to the Ministry but there is no verification done of the accuracy of the mileage that is reported.
Ian Roy
[20] Roy has been employed with the Defendant for 33 years and is the leasing manager. In 2011, the salesmen were instructed on the proper steps to follow when leasing out vehicles. All of their cars were posted online with prices so full disclosure was made. The leasing business is governed by the Ontario Motor Vehicle Industry Council.
[21] Lessees were always given the opportunity to take a car for a test drive and to have an independent inspection done of the vehicle. Every vehicle that New Roads offered for sale or lease was certified. For used cars, if there was a factory warranty, that was given to the customer. If not, a customer could purchase an extended warranty or service package. If they decline to do so, the customer must pay for the repairs to the vehicle.
[22] For leased vehicles, New Roads remains the registered owner of the vehicle but it is the customer’s responsibility to place insurance on the car. If insurance is not in place, the vehicle would be repossessed immediately.
[23] Roy testified that New Roads would never roll back the mileage on an odometer as it is a serious offence. He was adamant it was not done on the Hummer. Customers are always given a copy of the lease they have signed.
[24] He noted that New Roads received the Hummer from Michigan in March 2009. It was leased to a numbered company that had leased cars from New Roads previously. The Hummer was returned to New Roads in February 2011.
[25] Any time a vehicle changes ownership or lessees or goes for an emissions test, the mileage may be reported to the Ministry but the information provided is only as good as what is reported and what is recorded by the Ministry. Sometimes, there is confusion between odometers that are in miles as opposed to those that are in kilometres. The odometer on the Hummer recorded miles, since it was an American car. Roy noted that at the times the Plaintiff alleges the mileage was rolled back, November 2010 and March 2015, New Roads was not in possession of the car.
[26] Roy testified that the vehicle was repossessed in 2012 because there were outstanding fines so Hibbert was unable to renew his plates. The fines were paid, it was plated and returned to Hibbert. In August of 2013, it was repossessed for non-payment of the lease. New Roads sold the Hummer in March 2015.
Analysis
[27] Hibbert agreed that he wanted to lease a Hummer and that he had dealt with Jalili previously on the lease of another Hummer. He denied that he knew the vehicle was not covered by a warranty and he denied that this was discussed with Jalili even though he initialled on the box indicating that he was aware there was no service plan with the car. He did not avail himself of the opportunity to take the Hummer for a test drive, although he certainly could have done so. That makes little sense, given that it was a seven-year-old vehicle and Hibbert was experienced in leasing cars. He knew the car was certified and he could have had an inspection done by a mechanic of his choice, but he did not do so. In his testimony, Hibbert insisted that he relied on what Jalili had told him, yet he failed to articulate what it was that Jalili allegedly said on which he relied.
[28] I find that Hibbert was experienced in leasing cars, having leased two high-end vehicles prior to 2011. Some of his evidence was simply not credible, such as his assertion that he did not understand the Hummer was not covered by a service plan. Furthermore, at his examination for discovery, Hibbert testified that he did not even look inside the car, which is contrary to the evidence he gave at this trial. He denied that he knew it was an American vehicle; yet on the lease, he initialed the portion indicating the car was from Michigan. I find that Hibbert’s evidence on these critical points is not credible; rather, his testimony was replete with statements that he presumably believed would assist his case, even if they were not accurate.
[29] Jalili struck me as a man experienced in leasing luxury vehicles; he was knowledgeable, gave his evidence in a straightforward fashion, and had no reason to assist the defence in this action. Where the evidence of the Plaintiff and Jalili differs, I prefer the evidence of Jalili. Similarly, Roy was a credible witness, well-versed in the practices of leasing vehicles. He testified in an honest fashion and answered questions in a direct manner. I found him to be an impressive witness.
[30] It is clear that Hibbert believes the odometer was tampered with and that New Roads rolled it back. There is simply no credible evidence to support this belief. Hibbert confirmed that Jalili said nothing to him about the odometer readings. The basis for this belief appears to be his recollection that when he looked in the car at the time he leased it, the odometer read 76,000 km yet on the lease it is indicated that the mileage was 53,014. The Plaintiff’s counsel obtained a letter from the Ministry of Transportation dated December 17, 2015 that showed various odometer readings for the Hummer. In October, 2010 the odometer reading was less than in March, 2009 and similarly, in 2015 the mileage recorded is less than in 2013. As a result, the Plaintiff concludes that the Defendant rolled back the odometer on the Hummer. The Plaintiff has not retained an expert to provide an opinion on the odometer readings.
[31] I prefer and accept the evidence of Jalili and Roy on the issue of the odometer readings. The Plaintiff overlooks the fact that the Hummer was an American vehicle and consequently, the odometer readings were in miles and not kilometers. It strains credulity to accept that the Defendant would roll back the odometer reading on the vehicle leased to the Plaintiff given the fact that it was an illegal practice which could have had serious repercussions for the dealership. As I have indicated, there is absolutely no evidence to support the contention that the odometer on the Hummer was tampered with by the Defendant. At best, there is a discrepancy in the odometer readings on the car; these readings at issue occurred when the vehicle was not in the possession of New Roads. It is mere speculation on the part of Hibbert that the Defendant engaged in tampering with the odometer.
[32] The Plaintiff cannot make out a case based on negligent misrepresentation because he failed to articulate what he was told by Jalili that he relied on when he decided to lease the car. The Plaintiff agreed the mileage on the car was low, so even if I accept his evidence (which I specifically reject) that the odometer reading when he looked at the car was 77,000 kilometers and at the time the lease was signed it was 53,120, that is not a significant difference and there is no evidence that the Plaintiff relied on anything to do with the mileage when deciding to lease the Hummer. In Hanisch v. McKean, 2014 ONCA 698, 325 O.A.C. 253, the Court of Appeal set out what is necessary to prove the tort of negligent misrepresentation. The Plaintiff has failed to prove any of the requisite elements.
[33] There is absolutely no evidence of negligence on the part of the Defendant or any of its representatives with respect to information provided to Hibbert. There is no evidence to support the Plaintiff’s contention that New Roads engaged in unfair practices and breached the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.
[34] The Plaintiff alleges a breach of contract; this cannot be made out on the evidence. I accept the evidence of Roy and Jalili that the provisions of the lease were reviewed with Hibbert prior to signature. He initialed various boxes, indicating the terms of the lease were made clear to him. I do not accept that he was told by Jalili to sign it without reading it. The lease is clear that the vehicle was leased “as is” and the Plaintiff could have purchased a service plan to cover the cost of repairs but he chose not to do so. His disillusionment with the Hummer was the result of numerous repairs that had to be undertaken. Furthermore, the lease is clear on its face that Hibbert was accepting the Hummer in the condition it was in. If Hibbert chose not to read the lease and understand its terms, he cannot later be heard to say that he did not get what he contracted for.
[35] I find that he was impressed with the Black Hummer, he liked how it looked, and he wanted to lease it. He could have had the car inspected by someone of his own choosing and he could have taken it for a test drive, but he did neither. He was not interested in any other car; he bought a vehicle that was seven years old so it is not surprising that repairs were necessary. The evidence is clear that the vehicle was certified by a mechanic prior to the Plaintiff taking possession.
[36] The accident of June 2011 is important. While the Plaintiff alleges he collided with the guardrail on the highway as a result of some defect in the steering system, there was no evidence called to support this belief. He did not report the accident to the police and at trial, there was no evidence called or filed to indicate the steering system was faulty and resulted in the collision. The accident occurred June 17, 2011; the Plaintiff seemingly relies on an invoice from North Keele Auto Repair Centre Limited dated April 4, 2011 in which someone has handwritten “Problems found 2 months after; alignment could not be done because there are too many unsafe problems”. That invoice predates the collision and if the Plaintiff was of the view the car he had leased was not roadworthy, it is surprising that he continued to drive it and did not return it to the Defendant, advising that he had leased a car that was not fit for the road, contrary to the terms of the lease agreement.
[37] Clearly, there was a collision in June 2011 that resulted in damage to the Hummer that had to be repaired. The Plaintiff and his cousin attempted to have the auto insurer pay for the damage but they refused on the basis it was not covered under the policy. While I accept the Hummer sustained damage when the Plaintiff struck the guardrail in June 2011, there was no persuasive evidence that there was some malfunction with the steering column that caused the impact.
[38] I pause to comment that the receipts and invoices provided by the Plaintiff are less than satisfactory and in any event, are not causally related to the lease of the Hummer. Hibbert testified that he paid for a number of repairs in cash, and did not get receipts. He could not recall precisely what the alleged cash payments related to. The receipts for the car rental and painting were the largest amounts, yet they appear to stem from the repairs necessary as a result of the collision, which the Plaintiff has failed to prove was caused by the unfitness of the Hummer.
[39] The Plaintiff asks for punitive damages for the manner in which he was treated by New Roads. There is no basis for punitive damages in this case. The Plaintiff bought a seven-year-old used vehicle and chose not to purchase a service plan and agreed that he was accepting the vehicle in an “as is” fashion. There is no evidence he was misled by Jalili or anyone else at New Roads. While he testified he paid $8,000 when he leased the Hummer, that is contrary to the documentation filed at trial and I reject his evidence on this point. They fixed a couple of small problems as a goodwill gesture early on. Their refusal to pay for subsequent repairs was entirely reasonable, based on the terms of the lease. The fact that the Plaintiff was unhappy about that does not form the basis for a punitive damages claim.
Conclusion
[40] The action is dismissed. If counsel cannot agree on costs, I will accept brief written submissions of no more than five pages by December 15, 2018.
D. A. Wilson J.
Released: November 27, 2018
COURT FILE NO.: CV-14-509630
DATE: 20181127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Garfield Anthony Hibbert
Plaintiff
– and –
New Roads National Automotive Group, A Division of New Roads Leasing
Defendant
REASONS FOR JUDGMENT
D. A. Wilson J.
Released: November 27, 2018