COURT FILE NO.: CV-19-00619750-0000
DATE: 20210115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MERCEDES-BENZ FINANCIAL SERVICES CANADA CORP.
Plaintiff
– and –
JANOSH CHANDRAKULARAJAH and CHANDRAKULARAJA AMIRTHAYANASIVAM
Defendants
Wendy Ngai, for the Plaintiff
Janosh Chandrakularajah and Chandrakularaja Amirthayanasivam,
In Person
HEARD: January 15, 2021
papageorgiou j.
[1] This is a Motion for summary judgment brought by the plaintiff Mercedes-Benz Financial Services Corp (“Mercedes”) against the defendants in respect of an alleged breach of a lease agreement entered into by the defendants, in particular, the defendants’ failure to make required lease payments.
[2] The defendants were served with the summary judgment material as directed by Justice Myers in his endorsement dated November 4, 2020, were given an opportunity to file materials in response to this motion but did not, and did not attend at the hearing of the motion to make any submissions although we waited until 11:30 am.
[3] For the reasons that follow I am awarding Mercedes damages in the amount of $29,822.18 plus interest at the contract rate of 20 % up to the date of judgment.
Analysis
What is the test on a summary judgment motion?
[4] In accordance with Rule 20.04(2), of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), the court shall grant summary judgment if:
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
[5] In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and a judge may exercise any of the following powers under Rule 20.04(2.1): (1) weighing the evidence; (2) evaluating the credibility of a deponent; and (3) drawing any reasonable inference from the evidence.
[6] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, succinctly explained when there will be no genuine issue for trial:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[7] In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party on a summary judgment motion cannot rest solely on allegations in a pleading. Each side must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, 62 B.L.R. (5th) 211, at para. 9.
[8] “The motion judge is entitled to presume that the evidentiary record is complete and there will be nothing further if the issue were to go to trial”: Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, 137 O.R. (3d) 570, at para. 54. “A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial”: Diao v. Zhao, 2017 ONSC 5511, at para. 18.
[9] I have determined that there is no genuine issue requiring a trial based on the evidence filed on the motion which is uncontroverted. I have determined that there is sufficient evidence to fairly and justly adjudicate the issues in dispute, and a summary judgment motion is an affordable and proportionate procedure.
Did the defendants breach a lease agreement with the plaintiff?
[10] On or about November 5, 2015 the defendants, as lessees, entered into a lease agreement with Mercedes for the lease of a 2015 Mercedes-Benz CLA250 4Matic Coupe (the “Lease Agreement”).
[11] Pursuant to the Lease Agreement, the defendants agreed to pay to the plaintiff $1,155 upon signing the Lease Agreement and 44 monthly payments in the amount of $555 commencing December 5, 2015.
[12] The defendants made payments under the Lease Agreement from time to time but ceased to meet their payment obligations as they became due. The last payment made by the defendants was on June 7, 2018.
[13] In or around July 2018, Mercedes learned that the leased vehicle was destroyed or damaged beyond repair.
[14] Mercedes made a claim under the defendants’ insurance policy but the insurer denied the claim.
[15] Mercedes made a demand for payment on April 11, 2019.
[16] Pursuant to the Lease Agreement, Mercedes is entitled to the following payments upon default pursuant to sections 16 and 17:
a. Lease payments due under the Lease Agreement: $7,215;
b. The estimated residual value plus applicable taxes;: $23,108.50; and
c. Early termination charge: $491.15;
Total: $30,814.65
[17] From the above amounts the Lease Agreement directs that the security deposit in the amount of $600 must be deducted resulting in an overall outstanding liability of $30,614.65.
[18] Mercedes is not seeking the full amount, but the lesser sum of $29,822.18 which amount is based on the sum it had wished to settle this matter for.
[19] I am satisfied that the defendants have breached the Lease Agreement and that Mercedes is entitled the sum of $29,822.18.
Interest
[20] The Lease Agreement provides for an interest rate of 20 % from the date of the commencement of the action which is calculated as $10,213.08 in terms of prejudgment interest.
[21] In Capital One Bank v. Carroll, 2019 ONSC 6261 at paras 20-26, the Court held that the contractual rate of interest applies unless there are exceptional circumstances. In my view there are no exceptional circumstances in this case and accordingly the contract rate of 20 % is applicable both pre and post judgment.
Costs
[22] is Section 17 of the Lease Agreement provides that the defendants “agree to pay …the Total Amount in section 16 plus all costs and fees actually incurred by you [the Plaintiff] to assert or pursue any of your [the Plaintiff’s] remedies, including legal fees and disbursements.
[23] Mercedes is claiming partial indemnity costs in the amount of $5,146.02 which I find fair and reasonable.
Conclusions
[24] Accordingly, I award Mercedes:
a. Damages in the amount of $29,822.18;
b. Prejudgment interest at the contract rate in the amount of $10,213.08;
c. Post-judgment interest at the contract rate of 20 % for contract amounts due and owing and 2 % in respect of costs; and
d. Costs in the amount of $5,146.02.
Papageorgiou J.
Released: January 15, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MERCEDES-BENZ FINANCIAL SERVICES CANADA CORP.
Plaintiff
– and –
JANOSH CHANDRAKULARAJAH and CHANDRAKULARAJA AMIRTHAYANASIVAM
Defendants
REASONS FOR JUDGMENT
Papageorgiou J.
Released: January 15, 2021