Somerville National Leasing and Rentals Ltd. v. Vassileva, 2019 ONSC 2693

COURT FILE NO.: CV-15-542217 DATE: 20190514

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SOMERVILLE NATIONAL LEASING AND RENTALS LTD. Plaintiff – and – MARIA VASSILEVA Defendant

Counsel: Barry Nussbaum, for the Plaintiff Alpesh Patel, for the Defendant

HEARD: April 29, 2019

M. D. FAIETA j.

Reasons for Decision

Introduction

1The plaintiff brings this action, pursuant to Rule 76 of the Rules of Civil Procedure, for payment of $86,024.36 that it claims is owed pursuant to the defendant’s lease of a 2011 Rolls Royce. The defendant denies that she signed the lease.

2The plaintiff called two witnesses at trial - David Berman and Lynne Cavuto. The defendant was the only person to testify on her behalf.

David Berman

3David Berman’s affidavit sworn May 1, 2018 states:

• He is a sales representative for the plaintiff;
• In October, 2014 he began having discussions with the defendant’s husband, Reza Mokhtarian, with respect to leasing an automobile;
• On October 31, 2014, he met with the defendant at her family’s restaurant, Parisco Café, 214 Fort York Blvd., Toronto. During that meeting, the defendant provided Berman with a copy of her Canadian passport and Ontario driver’s licence to confirm her identity. Berman then reviewed the Lease, the Addendum to the Lease and Insurance Undertaking:
  • The Lease relates to the lease of a 2011 Rolls Royce Ghost for a term of 48 months commencing on October 31, 2014 at a monthly rental rate of $3,717.21 inclusive of taxes. The Lease provides that upon default and termination of the Lease the Vehicle may be sold by the Plaintiff and that in the event of any loss, the Defendant shall pay any deficiency to the Plaintiff;
  • The defendant also signed an Addendum to the Lease Contract which states that the plaintiff has no responsibility as to the condition of the automobile and that the defendant is satisfied as to its condition;
  • The defendant also signed a Lessee’s Insurance Undertaking whereby the defendant agreed to arrange and maintain a standard automobile insurance policy in respect of the leased automobile;
  • Berman witnessed the defendant’s signature of the Lease, the Addendum and Lessee’s Insurance Undertaking;
  • Berman noted that the defendant’s signature on the Lease, the Addendum and the Lessee’s Insurance Undertaking match the signature on her passport;
  • The Addendum to the Lease Contract indicated that the automobile was a “used vehicle” that the defendant had an opportunity to inspect and that the plaintiff had no responsibility as to the condition of the automobile; and
  • The Lessee’s Insurance Undertaking states that the defendant agreed to maintain a standard automobile insurance policy in respect of the leased automobile and provide proof of same to the plaintiff.
• On November 5, 2014, Berman delivered the automobile to the defendant. He provided her with a copy of the Lease. At that time, the defendant signed a Pre-Authorized Debit Agreement and a Cost of Credit Disclosure Addendum; and
• Berman states that a copy of the Lease and related documents were mailed by the plaintiff to the defendant to her home address. Further, Berman states that the plaintiff gave a copy of these documents to the defendant upon delivery of the automobile.

4In cross-examination, Berman stated that:

• He arranged and negotiated the Lease solely with Mokhtarian;
• In his discussions with Mokhtarian, it was always intended that the defendant would be the lessee;
• Mokhtarian did not sign any documents with the plaintiff related to the lease of the automobile;
• He met Mokhtarian off-site to inspect the automobile;
• Before he met with the defendant at her family restaurant, Berman received: (1) a credit application that had been submitted by the defendant; (2) the defendant’s driver’s licence and passport;
• He does not recall whether he delivered the automobile to the defendant or to Mokhtarian; and
• He is “100% sure” that he spent almost 5-8 minutes reviewing the main terms of the Lease and related documents with the defendant and that the defendant signed the Lease although he does not recall whether the defendant asked any questions.

Lynne Cavuto

5Lynne Cavuto’s affidavit sworn May 1, 2018 states:

• Cavuto is the plaintiff’s Credit Manager;
• On April 28, 2015, Aviva Insurance wrote to the plaintiff confirming that effective April 19, 2015 the policy for the vehicle, in the defendant’s name, had been cancelled;
• On May 7, 2015, the plaintiff re-possessed the vehicle because the defendant had failed to maintain adequate insurance coverage pursuant to the Lessee’s Insurance Undertaking;
• Cavuto sent a letter dated May 7, 2015 to the defendant at her home address which states: The above noted leased vehicle was re-possessed on May 7th, 2015 for failure to maintain adequate insurance coverage placing you in default of our Lease Agreement. You may retire the obligation under the Lease Agreemetn by paying the total balance outstanding within seven (7) days from the date of this letter: Buyback (as at May 31st, 2015): $232,747.99 Selling Fee: $350.00 ON H.S.T. $30,302.74 $263,400.73 Re-possession Fee: $604.55 TOTAL: $264,005.28 Unless $264,005.289 is paid within seven (7) days from the date of this letter, the vehicle will be sold by public or private sale and you will be legally responsible for any resultant deficiency.
• The defendant did not respond to the above letter;
• The vehicle did not have its original tire rims when it was recovered by the plaintiff. Mokhtarian advised the plaintiff that he had submitted an accident claim to the insurance company on March 29, 2015, advising that he had hit a pothole causing damage to the front lip of the vehicle, the four wheels and the rims. After conducting an investigation the insurer denied the claim. Aviva advised that Mokhtarian was driving without a valid driver’s licence;
• The cost of restoring the vehicle to its pre-accident condition was $25,744.79;
• On May 14, 2015, Mokhtarian advised Cavuto that he had the funds to purchase the vehicle however he did not contact her to complete the purchase;
• On or about October 28, 2015, counsel for the plaintiff sent a demand letter to the defendant. On the same day, counsel for the defendant advised that the defendant was separated. The letter states: Ms. Vassileva was in a common law relationship with Mr. Reza Mokhtarian. It is he, not she, who forged her signature on the lease for the vehicle in question. It is he, not she, who drove it and he, not she, who should be responsible for the payments.
• The defendant has not crossclaimed against Mokhtarian even though her lawyer alleges that he forged her signature on the lease; and
• On November 11, 2015, the plaintiff sold the vehicle for $183,635 inclusive of taxes.

6The plaintiff’s claim is as follows:

Buyout as of November 30, 2015 $215,189.71 Proceeds from Sale $162,500.00 Deficiency from Car Sale $52,689.71 Plaintiff’s Selling Fee $350.00 Account Arrears (non-taxable) $26,089.49 Subtotal $53,039.71 Other (non-taxable) $26,089.49 Taxes GST/HST $6,895.16 Total outstanding under the Lease $86,024.36

7The defendant does not dispute the plaintiff’s calculation of damages.

8In her cross-examination, Cavuto stated:

• She was not present when the Lease or any related document was signed;
• She does not recall any direct conversations with the defendant regarding the Lease; and
• She recalls being in contact with Mokhtarian who told her in 2015 that he had run into marital problems and would ensure that the Lease would be satisfied.

Maria Vassileva

9The defendant’s affidavit sworn May 25, 2018 states:

• She has been a real estate agent in Ontario since 2010;
• She denies that she met with Berman on October 31, 2014 and denies that she reviewed, discussed and signed the Lease and related documents described above;
• She denies that she provided Berman with her passport and driver’s licence;
• She denies that Berman delivered the vehicle to her;
• The first contact she had with a representative of the plaintiff occurred when Douglas Moore, on behalf of the plaintiff, contacted her in summer 2015 about the money owed under the Lease.

10In cross-examination the defendant states that:

• She and Mokhtarian separated in 2015. They co-parent and share custody of their daughter. She speaks with Mokhtarian about every weekend;
• Her signature appears to be on the Lease and related documents however it is not her signature. At first, the defendant stated that she could not remember signing the Lease and shortly thereafter became more direct in saying that she did not sign the Lease; and
• She believes that Mokhtarian forged her signature. She went to the police to report this forgery and was told that she should proceed by civil action before filing a criminal complaint. However, the defendant has not pursued this allegation of forgery directly against Mokhtarian as she has not made a claim against Mokhtarian in this action nor did she summons him to testify at trial.

Analysis

11The following legal principles apply in determining whether the defendant signed the Lease:

• “… [T]here is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof.”: C. (R.) v. McDougall, 2008 SCC 53, para. 40. Thus, where it is alleged that the defendant’s signature on an instrument has been forged, the plaintiff must prove on the balance of probabilities that the defendant signed the instrument;
• A signature on an unattested document may be proved by:
  • The writer;
  • A witness who saw the document being signed;
  • An admission of the party against whom the document is tendered;
  • A witness who has a general knowledge of the writing of the person whose signature or handwriting is sought to be proved;
  • A comparison of the disputed document with other documents proved to the satisfaction of the judge to be genuine: R. v. Abdi, [1997] O.J. No. 2651 (C.A.), paras. 22-25; Batt v. Hilscher, (1994), 19 Alta. L.R. (3d) 144, paras. 19-20;
  • Expert evidence pursuant to section 57 of the Evidence Act, R.S.O. 1990, chap. E.23, s. 57;
  • Judicial notice of official signatures; and
  • Where a purported signature is deemed by statute to be the actual signature. See Sopinka, Lederman & Bryant, The Law of Evidence in Canada, Fourth Edition, LexisNexis Canada Inc., 2014, para. 18.114.

12A court may draw a negative inference when a party has failed to call expert evidence to prove or rebut forgery: Lomas v. DiCecca (1978), 20 O.R. (2d) 605 paras. 17-18.

13The Plaintiff submits that Berman was a credible witness in that he candidly acknowledged that he dealt solely with Mokhtarian in arranging and negotiating the terms of the Lease. The Plaintiff submits that Berman’s emphatic evidence that he witnessed the defendant sign the Lease is credible as: (1) the signature on the Lease and other lease related documents were similar to the defendant’s signature on her passport and driver’s licence; (2) the defendant did not present any expert evidence to support her claim that her signature was forged by Mokhtarian; (3) the defendant did not bring a claim in this action against Mokhtarian alleging that he forged her signature; (4) the defendant did not summons Mokhtarian to testify in this action.

14The defendant submits that her evidence that she did not sign the Lease is supported by the evidence that Mokhtarian, not the defendant, was not involved in the arrangements and negotiations with Berman for the lease of the automobile.

15I am satisfied on the balance of probabilities that the defendant signed the Lease for the following reasons:

• Berman’s evidence was candid and consistent. The defendant’s evidence was less candid and consistent. Initially, she testified that she could not remember signing the Lease but soon categorically denied that she had signed the Lease;
• Although the defendant states that the police told her that she should commence an action against Mokhtarian for forgery before filing a criminal complaint, the defendant did not do so, nor did she explain why she did not do so;
• Given that it was her evidence that her signature had been forged by Mokhtarian, I would have expected that the defendant would have summonsed him to testify; and
• As noted by the defendant, the signatures on the Lease and related documents appear similar to the signatures on the defendant’s passport and driver’s licence.

16In arriving at the above conclusion, I place no weight on the fact that the defendant did not call a handwriting expert to support her position that her signature was forged as either party could have called a handwriting expert to address the issue of whether the defendant’s signature had been forged.

17Finally, the defendant’s casebook included several cases related to the defence of non est factum even though it was not pleaded. The defendant, appropriately, did not pursue this defence in its submissions. Given the defendant’s evidence that she did not sign the Lease there would have been no basis for her to submit that the document that she signed was fundamentally different from the document that she thought she was signing: Patel v. Borges, 2015 ONSC 6606, para. 58, aff’d 2017 ONCA 761.

Conclusions

18The plaintiff is awarded Judgment in the amount of $86,024.36 plus pre-judgment interest at the rate of 2 per cent per annum.

19The applicable principles related to the award of costs in a simplified procedure action are set out by Justice Mew in Cataraqui Cemetery Company v. Cyr, 2017 ONSC 7359, paras. 12-18. The plaintiff is entitled to its costs on a substantial indemnity basis from November 22, 2018 given that the result at trial was more favourable than the offer to settle for $60,000 that it made on November 22, 2018. The plaintiff’s bill of costs was $20,749.91 inclusive of disbursements and taxes on a full recovery basis. The defendant’s bill of costs was $11,714.50, inclusive of disbursements and taxes, on a full recovery basis. The plaintiff’s bill of costs lump together all of the services provided by counsel, junior counsel and articling student into one line item. I note that the defendant was ordered to pay costs thrown away of $2,500 to the plaintiff on December 12, 2018 in respect of the adjournment of this trial. The only other steps taken by plaintiff’s counsel after the date of the offer were preparation for, and attendance at, trial. The trial lasted less than two hours. In my view, it is fair and reasonable and within the expectations of the parties for the defendant to pay costs of this action in the amount of $9,500.00, inclusive of disbursements and taxes, to the plaintiff within 30 days.