Court File and Parties
COURT FILE NO.: CV-17-5192-00 DATE: 2019 03 21 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PINNACLE MOTORS (TORONTO) INC. operating as BRAMPTON CHRYSLER DODGE JEEP Plaintiff – and – COURTNEY CATER also known as COURTNEY A CATER and JENNIFER PARKER also known as JENNIFER A PARKER Defendant
COUNSEL: Alexander Soutter, for the Plaintiff Self-Represented, for the Defendants
HEARD: November 2, 2018
REASONS FOR JUDGMENT
Shaw J.
1. Overview
[1] The plaintiff, Pinnacle Motors Inc., operating as Brampton Chrysler Dodge Jeep (“Pinnacle Motors”) is a car dealership. It entered into a Vehicle Purchase Agreement (the “Agreement”) with the defendant, Courtney Cater (Mr. Cater) on June 12, 2017 for the purchase of a vehicle. Pursuant to the terms of the Agreement, Pinnacle Motors sold to Mr. Cater a 2015 Kia Sorrento VIN number 5XYKT3A64FG861893 (the “vehicle”) for $25,146,77, inclusive of all fees and taxes. According to the Agreement, Mr. Cater was to obtain financing to purchase the vehicle within two business days. If he did not do so, the vehicle was to be returned to Pinnacle Motors.
[2] Contrary to the terms of the Agreement, Mr. Cater did not obtain financing and kept possession of the vehicle for one year until it was seized by a bailiff hired by Pinnacle Motors.
[3] This is a simplified procedure matter governed by rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The action was commenced in November 2017 before Pinnacle Motors had secured the return of the vehicle. In its Statement of Claim, in addition to seeking the return of the vehicle, Pinnacle Motors sought damages in the amount of the purchase price of $25,146.77 plus payment of $20 per day from June 14, 2017 to June 1, 2018 in accordance with the terms of the Agreement. The defendants filed a Statement of Defence dated February 2, 2018. Paragraph 13 of the Statement of Defence included a counterclaim seeking damages.
[4] After Pinnacle Motors secured possession of the vehicle on June 1, 2018, the defendants brought a motion seeking its return. That motion was heard by Bielby J. on September 18, 2018. He denied the relief requested by the defendants and found that, pursuant to the Agreement, Pinnacle Motors was entitled to possession of the vehicle.
[5] While Pinnacle Motors has had possession of the vehicle since June 1, 2018 and intends to sell it, it seeks damages from the defendants for breach of the Agreement in the amount of the unpaid balance owing for the vehicle.
[6] Pinnacle Motors is also seeking a dismissal of the defendants’ counterclaim seeking damages for “harassment leading to my dismissal from work in the amount of $28,320”. The only facts pleaded in support of this claim are set out in paragraph 13 of the Statement of Defence as follows:
- Counterclaim: I Courtney Cater and Jennifer Parker make a claim against Brampton Chrysler for harassment leading to my dismissal from work in the amount of $28,320.
[7] Based on the wording of this paragraph and the lack of any evidence presented regarding the counterclaim on this motion, it is impossible to determine which defendant is claiming they were dismissed from their employment and which defendant is seeking damages. The defendants provided no evidence in any of the affidavits they filed regarding this claim.
[8] The defendant, Jennifer Parker (Ms. Parker), is Mr. Cater’s spouse. Although it was Mr. Cater who signed the Agreement and the vehicle was registered in his name, Ms. Parker was also named as a defendant in the action. While she may have been the person who dealt primarily with Pinnacle Motors, there is no basis for her to remain a party to this action nor is there any basis for Pinnacle Motors to seek damages from her as she was not a party to the Agreement that Pinnacle Motors claims was breached.
2. Position of the Parties
[9] Pinnacle Motors asserts that the defendants had possession of the vehicle for almost one year without making any payment for it or securing financing contrary to the terms of the Agreement. It alleges that the defendants are in breach of the Agreement and that it is entitled to the purchase price of the vehicle as damages together with a daily rate for use of the vehicle as set out in the Agreement. Its position is that there is no genuine issue requiring a trial and as such the court should grant summary judgment in its favour. It also seeks a dismissal of the counterclaim as there has been no evidence presented by the defendants in support of that claim.
[10] The defendants, who are self-represented, take the position that the matter should proceed to trial. Ms. Parker argued during the motion that it was not Mr. Cater’s signature on the Agreement but there was no evidence presented to support that position. The defendants also question why they were given possession and ownership of the vehicle if the initial loan was not approved. They assert that they tried to set up a payment schedule but Pinnacle Motors would not agree. They also take the position that the questionable conduct on the part of the salesperson they dealt with from Pinnacle Motors and that evidence ought to be heard by a trial judge.
[11] They also take the position that they did not know they were to present evidence on this motion to support their counterclaim and, as such, it also should proceed to trial so that they can present the evidence in support of that claim.
3. Review of the Evidence
[12] There are some preliminary issues to address regarding the evidence presented in the affidavits filed for this motion. There are some key facts that are not in dispute. The facts that are in dispute are, for the most part, peripheral to the issues that are central to this summary judgment motion.
[13] As this proceeding was commenced under the rules for the simplified procedure, rule 76.04(2) specifically excludes cross-examination on affidavits. Accordingly, the only evidence before me were the affidavits filed by various deponents. If there were credibility issues to resolve, the lack of cross-examinations would make it difficult to determine the issues in dispute by way of a summary judgment motion. There are, however, no credibility assessments needed to make the necessary findings of fact for this motion.
[14] Mr. Cater and Ms. Parker presented evidence of what transpired after Pinnacle Motors requested the return of the vehicle. They submit such conduct was indicative of fraudulent behaviour. The events that transpired after Pinnacle Motors requested the return of the vehicle, which may have been confusing to the defendants, is not, however, relevant or necessary to resolve the issues in dispute.
[15] Mr. Cater and Ms. Parker both filed affidavits for this motion. When the matter was before Bielby J. on September 18, 2018, only Ms. Parker had filed affidavits sworn June 12, 2018 and August 28, 2018. After the Order of Bielby J. and before the hearing of this motion, Ms. Parker filed an additional affidavit sworn October 4, 2018. Mr. Cater also filed an affidavit sworn October 29, 2018 which was identical to Ms. Parker’s affidavit and simply repeated her evidence. His affidavit failed to provide his own evidence regarding his dealings with Mr. Chris Shah, a salesperson at Pinnacle Motors, when he signed the Agreement and the applications for financing. His affidavit was of little assistance in this matter and I place little weight on it as it clearly is Ms. Parker’s evidence in an affidavit sworn by Mr. Cater.
[16] Although the defendants were self-represented, the fundamentals of the Rules of Civil Procedure and the law regarding evidence to be presented in response to a motion for summary judgment must still be complied with. When this motion was heard on November 2, 2018, the defendants had been in court on four prior occasions for this matter. They had more than sufficient time to prepare fulsome responding materials given the relief being sought by Pinnacle Motors. The summary judgment motion was originally returnable on August 28, 2018. Pinnacle Motors’ motion record, factum and book of authorities had been served on the defendants by mail on July 26, 2018. The defendants were therefore aware for four months that Pinnacle Motors was not only seeking damages but also a dismissal of their counterclaim. In paragraph 26 of its factum, Pinnacle Motors stated that a party must provide evidence setting out specific facts showing that there is a genuine issue requiring a trial. In paragraph 27, it relied on the principle that a party to a motion for summary judgment must put its best foot forward. The defendants were, therefore, aware of the position Pinnacle Motors would be taking regarding the counterclaim and yet the defendants failed to provide any facts in support of their claim for damages.
a) The Purchase of the Vehicle
i) Ms. Parker’s Evidence
[17] Ms. Parker deposed that she and Mr. Cater first went to Pinnacle Motors in May 2017 to purchase a Dodge Journey. They were approved for financing but given the size of the monthly payments, decided they could not afford to buy the vehicle.
[18] A salesperson contacted them a week later and asked them to meet Mr. Shah, who showed them three vehicles. She deposed that she and Mr. Cater decided to purchase the Kia Sorrento and they were told their bi-weekly payment would be $238 with the first payment due on June 26, 2017.
[19] Mr. Shah did all the paperwork and they were told the car would be ready in a couple of days. She did not provide any evidence regarding what paperwork was completed that day. One week later, Mr. Cater was contacted to pick up the car. She deposed that when he came home with the car, she was upset as he did not have copies of any of the paperwork such as the purchase agreement. He then returned to the dealership and returned with the paperwork which Ms. Parker deposed included only the loan documents from Scotia Dealer Advantage (“SDA”) from whom they had applied for financing through Pinnacle Motors. Mr. Cater told her that Mr. Shah said it would take two to three days to get the ownership as a vehicle inspection was necessary. Ms. Parker denied receiving a copy of the Agreement from Pinnacle Motors and only received an unsigned copy from the insurance company. She attached an unsigned copy of the Agreement to her affidavit.
[20] Attached to Ms. Parker’s affidavit was a copy of the Scotia Dealer Advantage Credit Agreement (the “SDACA”) and the Applicant’s Statement signed by Mr. Cater on June 12, 2017. The SDACA identified Mr. Cater as the borrower. According to the SDACA, the term of the loan was 72 months. In addition to the purchase price of the vehicle, interest of $11,418.24 was to be paid for a total amount borrowed of $37,278. The loan was to be repaid in bi-weekly payments of $238.96 with the first payment to be made on June 26, 2017.
[21] In the Applicant’s Statement, there was information about Mr. Cater’s employer and income. According to the form, Mr. Cater worked as a driver with Canada Post earning a gross monthly income of $4,000.
[22] Ms. Parker’s evidence was that she contacted Mr. Shah saying that she did not believe this was all the paperwork they should have and he told her that once the vehicle inspection was done, they would get everything.
[23] Mr. Shah subsequently contacted them to bring the car back for a vehicle inspection and they were given a courtesy car for a few days. Mr. Cater then went to pick up the vehicle and was given the ownership. Attached to Ms. Parker’s affidavit was a copy of the ownership dated June 21, 2017 indicating that the vehicle was owned by Mr. Cater.
[24] Ms. Parker’s evidence was that the first loan payment due on June 28, 2017 did not “go through” and they called Mr. Shah who said that it sometimes happens with new loans and to give it some time. She deposed that they called Mr. Shah when the second payment did not go through and he said he would look into it. They continued to put payments “in”. I presume she meant that they put payments into a bank account from which the monthly payments were to be withdrawn. Based on a review of the documentation filed by the parties for this motion, there was no personal banking information provided. It is unclear, therefore, how the lender, Scotia Credit, knew from which account to withdraw any payments.
ii) Mr. Shah’s Evidence
[25] Mr. Chris Shah, a former employee of Pinnacle Motors, swore an affidavit dated July 9, 2018. He dealt with Mr. Cater and Ms. Parker in connection with the purchase of the vehicle and the attempts to arrange financing.
[26] Mr. Shah first met with the defendants in May 2017 as they were looking to purchase a vehicle. Mr. Shah deposed that, at that time, they did not qualify for financing. That conflicts with Ms. Parker’s evidence regarding the first meeting but that evidence is not necessary to resolve the issues in dispute on this motion.
[27] Mr. Shah deposed that he met with Mr. Cater on or about June 12, 2017 and he applied for credit with SDA. A copy of the Applicant’s Statement dated June 12, 2017 signed by Mr. Cater was attached to his affidavit. What was not attached was a copy of the SDACA that was attached to Ms. Parker’s affidavit. No explanation was given for that.
[28] Mr. Shah’s evidence was that he submitted Mr. Cater’s application for credit to SDA and was advised that the application was approved subject to certain conditions which included satisfactory verification of all sources of income. Attached to Mr. Shah’s affidavit was a print-out of the conditional approval from SDA. The date and time stamp on that document under the heading “Deal Specific Conditions” is June 12, 2017 at 1:17:43 pm.
[29] Mr. Shah deposed that on June 12, 2017, after Mr. Cater’s application for credit with SDA was conditionally approved, Mr. Cater also signed the Agreement. A copy of that signed Agreement dated June 12, 2017 was attached to Mr. Shah’s affidavit.
[30] Paragraphs 9 and 10 of the Agreement state the following:
This agreement is an agreement to buy the vehicle. If there is an unpaid balance, your obligation to buy and our obligation to sell the Vehicle are expressly conditioned upon you obtaining financing for the Unpaid Balance. You have two business days from the date of this Agreement to obtain such financing. If you pay us with a cheque that is dishonoured or unpaid for any reason we may, at our sole option, declare this Agreement null and void and retake the Vehicle or make claims against you on the cheque. In addition, to the extent permitted by law, we will charge you a $24.00 refund cheque charge.
If for any reason you and we do not complete the Vehicle sale and purchase, financing is not obtained, or this Agreement is declared void, this section applies. You will return the Vehicle to us. You will pay us on demand all reasonable charges and expenses for any damages to the Vehicle. Unless prohibited by applicable law, you will pay us the greater of $0.30/per kilometer or $20.00 per day for use of the Vehicle. When you have paid us the amounts you owe under this Agreement we will return the trade-in unless we have sold it. Where the trade-in has been sold by the dealer we shall pay you the sale price, less the sales commission of 15% and any expense in storing, insuring, conditioning or advertising it for sale. If you fail to return the vehicle within 24 hours of notice, you agree that we may solely at our option, cancel the sale and retake immediate possession of the Vehicle and in addition to those charges specified above, you agree to pay us all reasonable expenses we incur in connection with retaking the Vehicle including attorney’s fees and other expenses to the extent permitted by applicable law.
[31] These are the terms of the Agreement that Pinnacle Motors relied upon to seek the return of the car and now for damages which it claims is the unpaid balance owing for the vehicle and the daily rate as set out in paragraph 10.
[32] Paragraph 10 also refers to a trade-in vehicle. In the Agreement, there is no mention of the defendants trading-in a car to purchase this vehicle. In addition, there was no evidence presented that the defendants traded-in one of the existing vehicles with Pinnacle Motors to assist in the purchase of this vehicle.
[33] During her submissions, Ms. Parker stated that Mr. Cater’s signature on the Agreement was fraudulent. However, in his affidavit, Mr. Cater did not deny signing the document or that it was his signature. Without any evidence to the contrary, I find that Mr. Cater signed the Agreement on June 12, 2017 and, as such, it is a binding agreement.
[34] Mr. Shah deposed that he asked Mr. Cater and Ms. Parker to return the vehicle for an inspection as the Safety Standards Certificate for the vehicle had expired. Mr. Cater brought the vehicle to Pinnacle Motors on June 17, 2017 for an inspection and the vehicle passed the inspection. Attached to his affidavit was a copy of the Safety Standard Certificate for the vehicle, indicating the date of the inspection was June 17, 2017. He submitted the Safety Standards Certificate to the Ministry of Transportation and he received a vehicle and plate permit in Mr. Cater’s name. A copy of that document, dated June 21, 2017, was attached to his affidavit as it was to Ms. Parker’s affidavit.
[35] Once he had the vehicle inspection and plate and vehicle permit in Mr. Cater’s name, Mr. Shah submitted the documents for approval of the loan. Mr. Shah deposed that SDA did not approve the financing application as there had been a delay since the initial approval for financing and it required a more recently executed credit application before extending financing. Mr. Shah’s contacted Mr. Cater and arranged to have him attend at Pinnacle Motors to execute a new application for credit. A copy of the Applicant’s Statement dated June 30, 2017 signed by Mr. Cater was attached to Mr. Shah’s affidavit. Also attached was a copy of the SDACA dated June 30, 2017. According to that agreement, as with the one attached to Ms. Parker’s affidavit, the bi-weekly payments were $238.96. The first payment was due on July 14, 2017, unlike the SDACA attached to Ms. Parker’s affidavit which indicated that the first payment was due on June 26, 2017.
[36] Mr. Cater did not deny in his affidavit that he was contacted by Mr. Shah to arrange to meet to sign a second Applicant’s Statement. He does not deny that he signed that document. I therefore accept Mr. Shah’s evidence that this second Applicant’s Statement was signed by Mr. Cater and a second application submitted to SDA.
[37] Mr. Shah deposed that these documents were resubmitted to SDA and that in the week of July 3rd he received a telephone call from a representative of SDA requesting proof of Mr. Cater’s income before his application for financing would be approved. Mr. Shah’s evidence was that he contacted Mr. Cater and asked for proof of his income. His evidence was that Mr. Cater provided him with a letter of employment from another employer namely Vertical Staffing Resources. That letter, dated June 28, 2017, was attached to Mr. Shah’s affidavit and states that Mr. Cater had been employed with Vertical Staffing Resources as a warehouse associate since October 30, 2016 and was earning $15 per hour. This differs from the information in the Applicant’s Statement which indicated that Mr. Cater’s employer was Canada Post and he was earning $4,000 per month. Mr. Cater did not deny in his affidavit that Mr. Shah asked for confirmation of his employment and he did not deny that he provided him with this letter.
b) The Denial of Financing and the Request to Return the Car
i) Ms. Parker’s Evidence
[38] Ms. Parker’s evidence was that four or five weeks after having possession of the vehicle, Mr. Shah called Mr. Cater and told him that the loan was not approved and that they would need to return the vehicle. Ms. Parker’s evidence was that she then contacted Mr. Shah and asked him why they were given possession of the vehicle if the loan had not been approved. Mr. Shah told her to leave it with him and he would apply for another loan with another bank.
[39] Ms. Parker deposed that Mr. Shah called her that evening and told her that a loan with Toronto Dominion (“TD”) had been approved and that the monthly payment would be lower at $212 bi-weekly. Attached to Ms. Parker’s affidavit was an unsigned copy of a TD Auto Finance Conditional Sale Contract dated July 3, 2017. Also attached was a TD Auto Finance Credit Application dated June 29, 2017 that was not signed. In those documents, the names of the borrowers are Mr. Cater and his son, Jaime Cater.
[40] Ms. Parker asked Mr. Shah to email her the TD loan documents to review before signing. The following day, she contacted TD and was told that the loan number did not exist and seemed fraudulent and she was told not to sign the documents. She contacted Mr. Shah immediately and said she did not feel comfortable speaking with him as he was a “liar”. He then asked her why she had called TD as he told her the loan was approved and he also told her to return the car.
[41] Mr. Shah did not file an affidavit responding to Ms. Parker’s affidavit regarding this loan with TD and there is therefore no evidence to dispute Ms. Parker’s evidence. What was not explained, however, is how or when Mr. Shah was given the information regarding Mr. Cater’s son including his name, address and employer. In her submissions, Ms. Parker stated that Mr. Shah told her to put her son’s name on the application but that was not evidence in the affidavits before me. I also note that the TD Credit application forms had not been signed so it is unexplained how a loan could have been approved without the documents being signed. Nonetheless, in the absence of any conflicting evidence, I accept Ms. Parker’s evidence that Mr. Shah attempted to arrange financing with TD when financing was denied by SDA.
[42] Regardless of the circumstances of this loan application with TD that may not have been submitted, by early July 2017, Ms. Parker and Mr. Cater were aware that they had possession of the vehicle that they had not paid for or qualified for financing to pay for it.
ii) Mr. Shah’s Evidence
[43] Mr. Shah deposed that after he submitted the second application for financing, he was advised by SDA that it had rejected Mr. Cater’s application as the employment information listed in the application for credit did not match his proof of income. He deposed that on July 10, 2017 he called Mr. Cater and told him that the application for financing was rejected and that he must immediately return the vehicle. His evidence was that Mr. Cater told him that he would return the vehicle that day but he did not. Mr. Shah deposed that on the evening of July 10th he attended at the defendants’ address and saw the vehicle parked in the driveway. He spoke with them and asked that they return the vehicle. His evidence was that Ms. Parker told him that they had been advised not to return the vehicle and would not do so.
c) Events After the Request to Return the Vehicle
[44] Ms. Parker’s evidence was that after Mr. Shah requested the return of the vehicle and after Ms. Parker called him about the TD loan, she then went to Cassey Campbell police station and spoke to an officer. She deposed that the officer told her to not talk to the sales person as he was trying to cover himself. She also deposed that he told her to go to Pinnacle Motors as something went wrong and they need to work out the kinks.
[45] Mr. Shah deposed that sometime in July 2017, an individual by the name of Kevin from Boss Recovery attended at their home saying that she needed to return the car and he was there to pick it up. She refused to give him the keys. The police were contacted and Kevin was asked to leave the property.
[46] Ms. Parker also deposed that on July 17, 2018 she spoke with Andrea from SDA who informed her that the loan had been started but not completed.
[47] Ms. Parker’s evidence was that she retained a paralegal in September 2017 who wrote to the general manager at Pinnacle Motors. Correspondence was exchanged between the legal representatives between September 22 and October 10, 2017. Attached to Ms. Parker’s affidavit were copies of the correspondence. In an email dated October 3, 2017, counsel for Pinnacle Motor’s advised that legal action was contemplated unless the matter could be resolved to recover the vehicle. Further emails requested a response and also asked if the defendants would be paying for the vehicle in full or returning it. Accordingly, as of October 2017, Pinnacle Motor’s position was clear: either the defendants had to pay for the vehicle or return it. The defendants did neither and kept possession of the vehicle without paying for it for almost an entire year when it was seized by a bailiff.
[48] Contrary to Ms. Parker’s evidence that she had not received a copy of the signed Agreement, one of the emails she attached to her affidavit was from the paralegal they had retained which included a copy of the Agreement. The paralegal pointed out that it was signed by Mr. Cater. Although that email is not dated, it was forwarding an email received from Pinnacle Motor’s counsel dated October 3, 2017.
4. Legal Test - Summary Judgment
[49] There are two issues before the court. The first issue is whether this is an appropriate case for summary judgment. If it is, the question is whether the defendants breached the Agreement and, if so, what damages flow from that breach. The second issue is whether summary judgment ought to be granted in connection with the counter-claim.
[50] As indicated above, while Ms. Parker appears to have been the defendant who dealt with Mr. Shah and the events subsequent to the request for the return of the vehicle, she did not sign the Agreement. If any damages are owing as a result of a breach of the Agreement, those would be owing by Mr. Cater only.
[51] The test for summary judgment is set out in rule 20.04(2.1) in the Rules. Summary judgment is to be granted where the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. Rule 20.04(2.1) and (2.2) provides for additional fact-finding powers available to the court. Specifically, rule 20.04(2.1) permits the court to weigh the evidence, evaluate the credibility of the deponent and draw any reasonable inference from the evidence in order to consider whether there is a genuine issue requiring a trial.
[52] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada held that, on a motion for summary judgment, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record without using any of the enhanced fact finding powers available under rule 20.04 (2.1) and (2.2). The factual record should be reviewed and summary judgment granted if there is sufficient evidence to fairly and justly adjudicate the dispute. The court should also consider if summary judgment would be a timely, affordable and proportionate procedure. The court specifically found that summary judgment rules are to be interpreted broadly. The focus must be on providing access to justice in a timely manner. At para. 50, Karakatsanis, J wrote:
When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or costs effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it give the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to the resolve the dispute.
[53] In Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, aff’d 2014 ONCA 878, Corbett J. reviewed the process by which the court considers whether summary judgment is appropriate. At paragraph 33 he found:
…the court on a motion for summary judgment should undertake the following analysis:
The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
If the court cannot grant judgment on the motion, the court should:
a. Decide those issues that can be decided in accordance with the principles described in 2), above;
b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
[54] The moving party has the burden to demonstrate that there is no genuine issue for trial. If that is established, the burden shifts to the responding party to prove that its claim has a real chance of success. The responding party must “lead trump or risk losing”: 1061590 Ontario Limited v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (Ont. C.A.), at para. 36.
[55] In Sweda, Corbett J. noted at paragraph 27 that on a motion for summary judgment, the court is entitled to assume that the record contains all of the evidence the parties would present at trial. If there is evidence that one of the parties alleges is necessary, the burden rests on that party to show that it has taken reasonable steps to obtain the evidence it needs for the motion for summary judgment and that the missing evidence would be material to the disposition of this motion.
5. Analysis
[56] In this matter, there are a number of material facts that are not in dispute. Those facts can be summarized as follows:
- Mr. Cater signed an Agreement to purchase the vehicle on June 12, 2017;
- Mr. Cater signed a new financing application on June 30, 2017;
- In early July 2017, Mr. Cater was informed by Mr. Shah that Scotia Credit had declined financing;
- In early July 2017, Mr. Shah requested the return of the vehicle;
- By way of email from counsel for Pinnacle Motors dated October 3, 2017 to the paralegal retained by the defendants, Pinnacle Motors sought either full payment or the return of the vehicle;
- The defendants had possession of the vehicle until June 1, 2018 when it was seized by a bailiff;
- The defendants did not make any payments for the vehicle during the time they had possession of the vehicle; and
- The vehicle plate permit issued by the Ministry of Transportation registered the vehicle in Mr. Cater’s name.
[57] It is not in dispute that the defendants had possession of the vehicle for almost one year and, during that time, they were aware that they had not qualified for financing or paid for the car. Mr. Shah requested the return of the vehicle in June 2017 and counsel retained by Pinnacle Motors requested its return or payment in October 2017. Pursuant to his Order dated October 12, 2018, Bielby J. found that the Agreement was binding and that Pinnacle Motors had properly taken possession of it. He dismissed the defendants’ motion to return the vehicle.
[58] In her submissions, Ms. Parker stated that she and Mr. Cater had tried to set up a payment plan with Pinnacle Motors but, again, there was no evidence of that filed for this motion. Even if that evidence was before me, the Agreement was clear – Mr. Cater was to obtain financing to pay the unpaid balance of the vehicle, which was $25,146.77. Pinnacle Motors had no obligation to accept a payment schedule for the vehicle. It was owed the entire amount of the car either from Mr. Cater or through financing arrangements.
[59] I accept Ms. Parker’s evidence that Mr. Shah completed a further loan application with TD and that it was only when she contacted TD the next day that she was told not to sign it as it may have been fraudulent. That same day, however, Mr. Shah again requested the return of the vehicle. This second application for financing with TD has no bearing on the central issue, which is that, for one year, the defendants had possession of a vehicle for which they had not paid.
[60] The issue of possession of the vehicle was determined by Bielby J. He found that the Agreement was binding. There was no additional evidence before me which creates a genuine issue for trial with respect to whether the Agreement is binding. I do not have to resort to any additional fact-finding powers as provided for in the Rules to make that determination. In addition, there are no credibility issues. I can reach a fair and just determination on the merits of this matter based on the affidavit evidence and supporting documentation filed with the court.
[61] Having found that the Agreement is binding, I also find that there was a breach of the Agreement as the defendants had possession of the vehicle knowing that financing had not been secured and failed to return it pursuant to paragraph 10 of the Agreement.
[62] Paragraph 10 of the Agreement is the term that applies when financing is not obtained. According to that paragraph, the vehicle was to be returned to Pinnacle Motors. Also, Mr. Cater, who signed the Agreement, was to pay all reasonable charges and expenses for damage to the vehicle as well as a daily rate for use of the vehicle as specified in that paragraph. If the vehicle was not returned within 24 hours of notice, Pinnacle Motors could take immediate possession of the vehicle and Mr. Cater would be required to pay all reasonable expenses incurred to retake possession.
[63] Pinnacle Motors claims $20 per day from June 14, 2017 to June 1, 2018 which totals $7,040 as the amount owing pursuant to paragraph 10 of the Agreement and I am prepared to grant judgment in that amount payable by Mr. Cater to Pinnacle Motors.
[64] Pinnacle Motors is also seeking the full amount of the unpaid balance for the vehicle of $25,146.777 plus pre-judgment interest. Paragraph 10, which is the applicable term of the Agreement that applies when financing is not secured, does not state that Pinnacle Motors is also entitled to full payment of the unpaid balance owing after it has secured possession of the vehicle. The wording of paragraph is 10 clear with respect to what amounts the defendants must pay if they do not secure financing and Pinnacle Motors is required to take steps to secure possession of the vehicle. It does not include paying the unpaid balance with a credit to be given once the vehicle is resold.
[65] This is an unusual situation as the defendants had possession of the car for one year. There was no evidence before me with respect to what efforts Pinnacle Motors had made to secure possession of the vehicle prior to June 1, 2018. An affidavit was filed by the bailiff, Mr. Clinton Bourne, who described what transpired when he took possession of the vehicle on June 1, 2018. There was also evidence from Ms. Parker about the bailiff attending to seize the vehicle in July 2017. I heard no evidence about what occurred between those dates regarding attempts to seize the vehicle.
[66] Pinnacle Motors now has possession of the vehicle. Counsel submitted that the vehicle would be sold and that the amount recovered would be credited against the unpaid balance owing. Again, I was not directed to anywhere in the Agreement which states that Mr. Cater would be obligated to pay any deficiency between the unpaid balance and the amount recovered from the sale of the vehicle.
[67] I therefore find that the only amounts owing by Mr. Cater to Pinnacle Motors are those specified in paragraph 10 of the Agreement.
[68] Pinnacle Motors did not provide any evidence on this summary judgment motion of the costs it incurred to recover the vehicle from the defendants. As with the defendants, it had an obligation to put its best foot forward on this motion and present that evidence. It failed to do so and those costs will therefore not be granted.
[69] I also dismiss the defendants’ counterclaim. Firstly, the pleading does not disclose who suffered the damages. Secondly, the defendants had ample opportunity to present evidence regarding their claim and failed to do so. They were served with Pinnacle Motor’s motion record and factum four months before this motion was heard. They were aware that Pinnacle Motor’s position was that a party to a motion for summary judgment cannot rely on the prospect that additional evidence will be available at trial. Based on Sweda, the defendants were required on this motion to present the evidence they intended to rely upon at trial in support of their claim for damages. As they failed to present any evidence, they cannot rely on the bald allegation in their pleading saying that harassment led to either Ms. Parker or Mr. Cater losing their employment. They were required to present evidence to support their position that there was a genuine issue for trial and failed to do so.
Conclusion
[70] Summary judgment is granted in favour of Pinnacle Motor for the amount of $7,040 to be paid by Mr. Cater. The action against Ms. Parker is dismissed. The defendants’ counterclaim seeking damages is also dismissed.
[71] If the parties cannot agree on costs, they may file written submissions, of no longer than two pages, double-spaced by April 12, 2019 together with a copy of their Bill of Costs.
L. Shaw J.
