Alphera Financial Services Canada v. Ambihaipalan, 2021 ONSC 3530
COURT FILE NO.: CV-19-138827
DATE: 20210513
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alphera Financial Services Canada, A Division of BMW Canada Inc.
Plaintiff
– and –
Sumatherdevi Ambihaipalan and Nilani Ambihaipalan also known as Nilani Ambihaipalan
Defendants
COUNSEL:
Ron Aisenberg, for the Plaintiff
Sumatherdevi Ambihaipalan, Self-Represented, for the Defendants
HEARD: February 17, 2021
REASONS FOR DECISION
DE SA J.:
Overview
[1] The Plaintiff moves for summary judgment in relation to a Conditional Sales Agreement for the sale of a used 2011 Porsche Cayenne (“the Vehicle”).
[2] The Defendants entered into the Agreement on September 16, 2017 and have failed to make any payments other than the initial down payment. The Vehicle has not been returned and its whereabouts are unknown.
[3] One of the Defendants, Nilani Ambihaipalan, has filed for bankruptcy. The Plaintiff now seeks judgment against the other Defendant, Sumatherdevi Ambihaipalan, in the amount of $60,671.95 which is the outstanding amount for the Vehicle.
[4] After reviewing the evidence, I agree that summary judgment in favour of the Plaintiff is warranted here.
[5] The reasons for my decision are outlined below.
Summary of Facts
[6] On or about September 16, 2017, the Defendants and Premium Cars Wholesale Ltd., as retailer (“the Retailer”), entered into a Conditional Sales Agreement (“the Agreement”) for the purchase of the Vehicle for $60,909.82. [^1]
[7] The Defendants, Sumatherdevi Ambihaipalan (“Sumatherdevi”) and Nilani Ambihaipalan (“Nilani”) made a down payment of $3,000 (plus $61.73 for a security registration fee) and financed the remaining amount of $57,909.82 which financing was subject to the terms of the Agreement. Nilani is the daughter of Sumatherdevi.
[8] The Defendants failed to make any payments (other than the down payment) under the Agreement and therefore defaulted under the Agreement. Clause 19(b)(ii) of the Agreement provides that upon default, the Plaintiff may accelerate all amounts due under the Agreement, and such amounts are due and payable immediately. The full balance due of $57,909.82, remains owing, plus interest at 18% per annum, pursuant to clause 9.
[9] The Plaintiff has not been able to obtain possession of the Vehicle and does not know the Vehicle’s whereabouts.
[10] Sumatherdevi does not dispute signing the Agreement. According to Sumatherdevi, she was a victim of fraud committed by a person named Nivethanan Sivagurunathan, (“Naveen”).
[11] Sumatherdevi had become acquainted with a woman named Indumathy Selvarajah and she became a friend. Naveen was her grandson. In September 2017, Indumathy and Naveen took Sumatherdevi and her daughter, Nilani, to a car dealership in Newmarket, Premium Cars Wholesale Ltd.
[12] According to Sumatherdevi, Naveen pressured her to sign some forms at the dealership. Given her issues with the English language, she did not understand the forms when she signed them.
[13] She points out that she was never asked to provide her financial information or work history and did not make any payments to the dealership. She was not financially qualified for the loan given to her.
[14] According to Sumatherdevi, she herself did not directly receive the Vehicle from the dealership, does not know of its whereabouts, nor did she ever have de facto possession of the Vehicle.
[15] Sumatherdevi has also included medical information together with her affidavit. The materials indicate that Sumatherdevi suffers from various medical conditions including chronic diabetes, thyroid deficiency, heart conditions, and depression.
Position of the Parties
[16] The Defendant claims that she was pressured to sign the forms at the dealership by Naveen. She maintains that she did not understand the nature of the forms. She seeks to rely on the defences of duress and non est factum. She asks that the action be dismissed.
[17] The Plaintiff takes the position that in the context of all the evidence, the Defendant’s evidence is so disingenuous, it does not constitute a genuine issue for trial: Royal Bank of Canada v. Feldman (1995), 23 0.R. (3d) 798 (Gen. Div.), at p. 800, appeal quashed (1995), 27 0.R. (3d) 322n (C.A.). Even if the Defendant’s evidence were accepted, the Plaintiff argues that the defences advanced by the Defendant of duress and non est factum would not be made out.
Analysis
Is there a Genuine Issue Requiring a Trial?
General Principles
[18] Pursuant to Rule 20.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall grant summary judgment if it is satisfied there is no genuine issue requiring a trial. Animating the interpretation of rule 20.04(1) is rule 1.04 which requires that the rule be liberally construed to secure the just, most expeditious and least expensive determination of a proceeding on its merits having regard to the complexity of the issues and the amounts involved.
[19] Rule 20.04 aims to avoid protracted litigation in circumstances where such litigation is unnecessary to achieve a just result. The judge in deciding whether to grant summary judgment must ask: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?
[20] The assessment, by its nature, is necessarily contextual. What is fair and just turns on the nature of the issues, the nature of the evidence required to resolve those issues and what is the proportionate procedure having regard to the amounts involved. As the Supreme Court of Canada explained in Hryniak v. Mauldin, 2014 SCC 7, at paras. 27-29:
A proper balance requires simplified and proportionate procedures for adjudication and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial and that alternative models of adjudication are no less legitimate than the conventional trial.
This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible—proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
There is, of course, always some tension between accessibility and the truth-seeking function but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil dispute must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result. [Emphasis added]
[21] Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. The Court is entitled to assume that the record contains all the evidence which the parties will present if there is a trial: See New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC 1037, at para. 12.
[22] In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers for the purpose, unless it is in the interests of justice for such powers to be exercised only at a trial:
a. Weighing the evidence.
b. Evaluating the credibility of a deponent.
c. Drawing any reasonable inference from the evidence.
[23] It is only after the moving party has discharged its evidentiary burden of proving that there is no genuine issue that the burden shifts to the responding party to prove that its claim or defence has a real chance of success. As explained in Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5:
A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue for trial. Once this burden is discharged the responding party must prove that its defence has a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence the parties would present at trial.
1) Duress
[24] Duress is a sub-set of unconscionability. In order for the Defendant to rely on duress as the basis to set aside her consent, she must prove that she was subjected to illegitimate pressure to such a degree that her will was coerced.
[25] The Defendant must establish that illegitimate pressure put her in a position where she had no realistic alternative but to agree. (See Stott v. Merit Investment Corp., (1987) 1988 CanLII 192 (ON CA), 25 OAC 174; 63 OR (2d) 545 (C.A.), at para. 48; Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 (OCA), at para. 9; and Pytka v. Pytka Estate, 2010 O.J. No. 4907 (S.C.J.).
[26] There is a “distinction between “stress” and “duress” and that stress is “not a ground to decline to enforce a contract”. In Stott, at para. 48, the Court of Appeal emphasized that:
[N]ot all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to a ‘coercion of the will’, to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no ‘realistic alternative’ but to submit to it…duress has the effect of vitiating consent and an agreement obtained through duress is voidable at the instance of the party subjected to the duress…
[27] The other party to the contract must also be aware of the duress or coercion where he was not the perpetrator of such duress or coercion. Brooks v. Alker, (1975) 1975 CanLII 423 (ON SC), 9 OR (2d) 409 (SCJ), at p. 35; see also Davis v. Cooper [2010] O.J. No. 3309, at para. 13.
[28] Having reviewed the evidence, I do not accept the Defendant’s assertion that she was forced to sign the documentation. This claim is merely a bald assertion in her affidavit without any meaningful support.
[29] Sumatherdevi states in her affidavit that “I trusted Indumathy [Naveen’s grandmother] as a good friend and signed the forms”. This statement is itself inconsistent with Sumatherdevi’s claim that Naveen forced her to sign.
[30] Further, nothing would indicate that the contracting party (the dealership) was aware that the Defendant was experiencing any kind of pressure to sign the documentation.
[31] In my view, a defence of duress is unavailable here and has no meaningful chance of success at trial.
2) Non Est Factum
[32] The defence of non est factum is available to “someone who, as a result of misrepresentation, has signed a document mistaken as to its nature and character and who has not been careless in doing so.”: Marvco Color Research Ltd. v. Harris, 1982 CanLII 63 (SCC), [1982], 2 S.C.R. 774, and Bulut v. Carter, 2014 ONCA 424.
[33] The absence of a misrepresentation and carelessness are fatal to the defence: The Guarantee Company of North America v. Ciro Excavating & Grading Ltd., 2016 ONCA 125. See Dorsch v. Freeholders Oil Co. Ltd., 1965 CanLII 90 (SCC), [1965] S.C.R. 670. This approach is based not only upon the principle of placing the loss on the person guilty of carelessness, but also upon a recognition of the need for certainty and security in commerce. Waberley v. Cockerel (1542), 1 Dy. 51.
[34] In Muskham Finance Ltd. v. Howard, supra, at p. 912, Donovan L.J. stated:
Much confusion and uncertainty would result in the field of contract and elsewhere if a man were permitted to try to disown his signature simply by asserting that he did not understand that which he had signed.
[35] In this case, on her own evidence, the Defendant was careless in signing the documentation. She claims that she did not read it. She did not ask any questions about it. She did not ask for an opportunity to obtain independent legal advice.
[36] On this basis, the defence of non est factum is not open to her.
[37] Furthermore, for non est factum to apply, the guarantee must have been signed as a result of misrepresentation as to its nature. There is no evidence of misrepresentation by the seller in this case.
[38] In The Guarantee Company of North America v. Ciro Excavating & Grading Ltd., 2016 ONCA 125, in citing the decision of the motion judge, summarizing carelessness in the context of signing a contract stated:
Stella’s own evidence established that she never read any documents presented to her; she never asked for a translation of any document; she took no steps to inform herself of what she was signing; she did not ask questions about the document; she never asked to speak to a lawyer or friend about the document; and she never took time to think about what she was signing.
[39] The same level of carelessness is evident in this case. Sumatherdevi simply went ahead and signed the documentation without bothering to read it or inquire about it. She had her daughter present with her who was obviously assisting her with what was going on. Both she and her daughter signed the Agreement.
[40] In doing so, Sumatherdevi made herself liable for the amounts owing.
[41] Moreover, I do not accept her evidence that she was unaware of what was going on. The record here suggests complicity on her part.
[42] There is no apparent wrongdoing on the part of the dealership.
Disposition
[43] I will grant judgment in favour of the Plaintiff in the amount of $60,671.95.
[44] Pre-judgment interest on that sum is granted from April 10, 2018, and post-judgment interest from the date of judgment at the rates pursuant to the Courts of Justice Act.
[45] Costs are also ordered in favour of the Plaintiff in the amount of $8,000.
Justice C.F.de Sa
Released: May 13, 2021
2021 ONSC 3530
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alphera Financial Services Canada, A Division of BMW Canada Inc.
Plaintiff
– and –
Sumatherdevi Ambihaipalan and Nilani Ambihaipalan also known as Nilani Ambihaipalan
Defendants
REASONS FOR DECISION
Justice C.F. de Sa
Released: May 13, 2021
[^1]: The rights of the Retailer were assigned to the Plaintiff under the terms of the Agreement.