



COURT OF APPEAL FOR ONTARIO

CITATION: St. Laurent Automotive Group Inc. v. Sami's Garage
    Ltd., 2019 ONCA 941

DATE: 20191128

DOCKET: C65803

Watt, Hourigan and
    Trotter JJ.A.

BETWEEN

St.
    Laurent Automotive Group Inc. and Import Auto Leasing Inc.

Plaintiffs (Respondents)

and

Samis Garage Ltd., Yassine Jabbar, Sami Abi
    Khaled and Dmitri Khalife

Defendants (Appellants)

BETWEEN

Samis
    Garage Ltd. and Sami Ani Khaled

Plaintiffs by Counterclaim (Appellants)

and

St. Laurent
    Automotive Group Inc., Import Auto Leasing Inc., John Mierins, Andrea Chambers,
    Yassine Jabbar and Dmitri Khalife

Defendants by Counterclaim
    (Respondents)

Diane Condo, for the appellants

Gary Boyd, for the respondents

Heard and released orally: November 25, 2019

On appeal from the
    judgment of Justice Toscano Roccamo of the Superior Court of Justice, dated
    July 16, 2018.

REASONS FOR DECISION

[1]

This appeal and cross-appeal arise from a scheme perpetrated by Dmitri
    Khalife and Yassine Jabbar in which they fraudulently sold used vehicles. The
    respondents, St. Laurent Automotive Group Inc. and Import Auto Leasing Inc.,
    were victims of the scheme. They commenced an action for conversion against the
    appellants and the appellants brought a counterclaim for conversion.

[2]

The trial judge found the appellant Samis Garage liable for conversion
    in relation to five missing vehicles and fixed damages at $40,792. She
    dismissed the respondents claim for conversion regarding certain consigned
    vehicles and the counterclaim for other consigned vehicles. Those conversion
    claims were dismissed because the trial judge found that the parties acquired
    the vehicles in good faith without notice of the sellers defect in title. The
    trial judge ruled that the parties should bear their own costs.

[3]

On appeal, the appellants argue that the trial judge erred in: 1)
    finding the five missing vehicles were stolen; 2) misapplying the law regarding
    mitigation of damages; 3) fixing the quantum of damages; 4) failing to
    adjudicate the counterclaims for misrepresentation and unjust enrichment
    against the respondent; and 5) failing to adjudicate the counterclaim for
    contribution and indemnity as against Mr. Jabbar.

[4]

The respondents cross-appeal, submitting that the trial judge erred in
    finding that Mr. Khalife was a mercantile agent within the meaning of s. 25
    of the
Sale of Goods Act
, R.S.O. 1990, c. S. 1. Accordingly, they
    argue that their claim for conversion should be allowed. They also submit that
    the trial judges costs ruling should be set aside and that they should be
    awarded their trial costs.

[5]

We do not give effect to any of the appellants grounds of appeal.

[6]

The factual finding that the vehicles were stolen was rooted in the
    evidence and does not disclose a palpable and overriding error.

[7]

The appellants submission regarding mitigation of damages is based on a
    conflation of the law of contributory negligence and mitigation. The trial
    judge properly applied the law of mitigation and we see no legal error.

[8]

We also see no error in the fixing of damages, as the trial judges
    calculation was based on the evidence in the record.

[9]

It is conceded by the respondents that the trial judge failed to
    adjudicate the claims for unjust enrichment and negligent misrepresentation. We
    are not satisfied that a claim for unjust enrichment could succeed. The
    respondents actually lost money on the counterclaim vehicles and therefore did
    not obtain an enrichment. There was also a juristic reason for any enrichment,
    given the trial judges finding that the respondents acted in good faith and in
    the absence of any notice of defect in title when they purchased the
    counterclaim vehicles.

[10]

With regard to negligent misrepresentation, there is no evidence of a
    special relationship between the parties and no specific representations were alleged
    to have been made. Therefore, a claim for negligent misrepresentation cannot
    succeed.

[11]

The respondents do not object to an order being made for contribution
    and indemnity as against Mr. Jabbar. The trial judge did not advert to this
    issue in her reasons. The order sought will issue.

[12]

With regard to the cross-appeal, the principal issue is whether the
    trial judge erred in finding that Mr. Khalife was a mercantile agent. We do not
    give effect to this argument. Given the trial judges finding that the
    respondent provided Mr. Khalife with free reign to take consigned vehicles off the
    lot to sell them to customers, there was a proper evidentiary basis for making
    this finding.

[13]

Finally, we are not satisfied that the trial judge erred in her costs
    award. There was mixed success at trial and it was within her discretion to
    award no costs.

[14]

The appeal is dismissed, save for the claim for contribution and
    indemnity against Mr. Jabbar. The cross-appeal is dismissed. As success here is
    also divided, there will be no order as to costs of the appeal and
    cross-appeal.

David Watt J.A.

C.W. Hourigan J.A.

G.T. Trotter J.A.


