



COURT OF APPEAL FOR ONTARIO

CITATION: BMW Financial
    Services Canada v. McLean, 2015 ONCA 342

DATE: 20150514

DOCKET: C59659

Feldman, van Rensburg and Huscroft JJ.A.

BETWEEN

BMW Financial Services Canada, a division of BMW
    Canada Inc.

Plaintiff

(Respondent)

and

Amy McLean also known as Amy Katz also known as
    Amy Katz McLean also known as Amy A. Katz also known as Amy A. McLean also
    known as Amy A. Katz McLean

Defendant

(Appellant)

Howard E. Katz, for the appellant

Adam Nathanson, for the respondent

Heard: May 4, 2015

On appeal from the judgment of Justice Jane A. Milanetti
    of the Superior Court of Justice, dated November 14, 2014.

ENDORSEMENT

[1]

The appellant appeals from the judgment of Milanetti J. granting summary
    judgment to the respondent in an action arising out of an alleged default on a
    conditional sales agreement for the purchase of a used BMW car.

[2]

The appellant purchased the car from a BMW dealership and the respondent
    financed the purchase in two contracts dated August 7, 2009. The purchase price
    was $109,172.90.

[3]

The financing agreement assigned the dealerships rights and title to
    the car to the respondent, who registered a security interest in the car under
    the
Personal Property Security Act
, R.S.O. 1990, c. P.10 (the 
PPSA
)
. The appellant returned to the
    dealership for service on several occasions and was ultimately unsatisfied with
    the car. She failed to keep up with the payment schedule and made a unilateral
    decision to return the car to the dealership on December 15, 2010.

[4]

The respondent sold the car at a public auction for less than the amount
    outstanding on the loan and brought an action against the appellant for the
    balance owing. Milanetti J. granted summary judgment for $40,865.92 plus 18%
    interest.

[5]

The appellant says that she raised a genuine issue requiring a trial.
    She says that the dealership made false and misleading representations to her
    that induced her to purchase the car. She submits that the relationship between
    the dealership and the respondent is a close and continuing one and, as a
    result, she should be able to raise any defences relevant to the dealership
    against the respondent. In addition, she says that the respondent did not provide
    the required notice of sale under the
PPSA
and sold the car for less
    than its market value.

[6]

We reject these arguments. As to the relationship between the dealership
    and the respondent, it was open to the motion judge to conclude that they are
    separate entities. The appellant led no evidence on the point and the
    respondent was never cross-examined on the affidavit it filed indicating its
    independence from the dealership. The evidence shows no more than that the trade
    name BMW is common to the dealer and the respondent.

[7]

Moreover, there was no evidence that the respondent played any role in
    the relationship between the appellant and dealership. This is not a case like
Federal
    Discount Corporation v. St. Pierre
, [1962] O.R. 310 (C.A.), on which the
    appellant relied. In the absence of evidence establishing a relationship
    between the dealership and respondent, any false or misleading representations
    the dealership may have made to the appellant are not relevant to the
    respondents actions.

[8]

The motion judge concluded that she did not need to resolve the
    conflicting evidence as to whether notice of the intent to sell the car was
    properly given under the
PPSA.
According
    to the motion judge,
even assuming a failure to provide notice
    occurred, it would not undermine the respondents right to claim for a
    deficiency under the contract. We agree with this conclusion.

[9]

Although a failure to provide notice under the
PPSA
gives rise
    to a right to compensation, it is for the appellant to establish damages and
    she did not do so. The appellant argues that the respondent failed to mitigate
    properly, but the motion judge was entitled to conclude that the appellant led
    insufficient evidence to permit a conclusion that the sale was improvident and
    that she incurred a compensable loss as a result.

[10]

Although
    the motion judges reasons are brief, her conclusion is supported on the evidentiary
    record that was before her. There is no reason to interfere with her conclusion
    that the sale of the vehicle at a public auction was a commercially reasonable
    approach for the respondent to have taken.

[11]

Accordingly,
    the appeal is dismissed.

[12]

The
    appellant shall pay the respondent costs of $8,000 inclusive of taxes and
    disbursements.

K.
    Feldman J.A.

K.
    van Rensburg J.A.

Grant
    Huscroft J.A.


