



COURT
    OF APPEAL FOR ONTARIO

CITATION: Kitchen v. Brian Garratt
    (Garratts Garage), 2020 ONCA 309

DATE: 20200522

DOCKET: C67729

Lauwers, Huscroft and Thorburn
    JJ.A.

BETWEEN

John
    Kitchen and Nancy Kitchen

Plaintiffs (Respondents)

and

Brian
    Garratt c.o.b. as Garratts Garage

Defendant (Appellant)

Brian
    Garratt, acting in person

Scott
    McMahon, for the respondents

Heard: In Writing

On
    appeal from the judgment of Justice Gary W. Tranmer of the Superior Court of
    Justice, dated August 12, 2019.

REASONS
    FOR DECISION

[1]

The respondents hired the appellant in 2000 to
    conduct a partial restoration of their 1974 Corvette. The appellant also had
    possession of other vehicles owned by the respondents. The respondents claim
    they paid the appellant about $79,000 over a 15-year period to restore the 1974
    Corvette. In 2016, the parties fell out and the respondents brought an action
    seeking the return of the Corvette and damages. The appellant brought a
    counterclaim for unpaid accounts and storage fees, but it was dismissed because
    of his failure to deliver an affidavit of documents. The respondents obtained
    an order compelling the return of the Corvette and purported to discover that
    very little work had been completed.

[2]

A trial date was adjourned at the appellants
    request on the day of the trial, and the respondents were permitted to bring a
    motion for summary judgment. Although he had been represented by counsel in the
    past, at the return of the summary judgment motion, the appellant was
    self-represented. He did not file any affidavit evidence on the motion,
    although he did arrive with some photographs of the vehicle in hand, which he
    proferred.

[3]

The motion judge granted the motion for summary
    judgment, awarding $78,565.16 to the respondents as a return of monies paid to
    the appellant to restore their 1974 Corvette, plus pre-judgment interest and
    costs for a total of $103,949.79.

[4]

In his endorsement, the motion judge noted:

The defendant did not seek an adjournment
    today. He did not file affidavit evidence or a factum. I heard his submissions
    that he wants a trial permitting him to file Exhibit 1 (photographs of the
    automobile). The motion materials clearly support that there is no genuine
    issue for trial. The defendant had the vehicle for 15 years, the plaintiffs
    paid $79,000. The evidence is that the work agreed upon was not done.

[5]

However, contrary to the assertion made by the
    motion judge, there were photographs before him that depicted work done on the
    Corvette including painting and polishing. Those photographs were made an exhibit
    at the hearing. The respondents conceded that some, albeit they say very
    little, work was done, which implies that the return of all funds paid to the
    appellant might not have been warranted.

[6]

The conflict in the evidence was not resolved. We
    therefore allow the appeal, set aside the order of the motions judge granting
    summary judgment and costs, and remit the case back for trial.

[7]

Mr. Garratt had several opportunities to file
    evidence in support of his position that he did work on other vehicles and or
    stored other vehicles for the respondents and did not do so. By his failure to
    do so, Mr. Garratt has wasted the time of counsel for the respondents and must
    pay some costs thrown away on the summary judgment motion.

[8]

We fix costs of the motion thrown away to be
    paid by Mr. Garratt to the respondents in the amount of $5,000 within 30 days
    of the date of this decision. Costs of this appeal, which we also fix at
    $5,000, will be costs in the cause reserved to the judge who finally disposes
    of the matter. The respondents are free to bring another summary judgment
    motion on proper evidence.

P.
    Lauwers J.A.

Grant
    Huscroft J.A.

Thorburn
    J.A.


