



COURT OF APPEAL FOR ONTARIO

CITATION: Turtle Creek Landscape Inc. v. Summit Auto Brokers
    Inc.,

2018 ONCA 95

DATE: 20180201

DOCKET: C63456

Sharpe, LaForme and van Rensburg JJ.A.

BETWEEN

Turtle Creek Landscape Inc.

Plaintiff
    (Appellant)

and

Summit Auto Brokers Inc. and Shane Baghaee

Defendants (Respondents)

Leonard Reece, for the
    appellant

Sahar Cadili, for the
    respondent

Heard: January 29,
    2018

On appeal from the judgment
    of Justice G.P. DiTomaso of the Superior Court of Justice, dated February 24,
    2017.

REASONS FOR DECISION

[1]

The appellant Turtle Creek Landscape Inc. sued
    the respondents for damages, alleging defects in a truck it claimed to have
    purchased from the respondents.

[2]

The appellant appeals the dismissal of its
    action on a summary judgment motion. On appeal it raises many of the same
    arguments that it raised in the court below.

[3]

We are not persuaded that there was any error in
    the motion judges disposition of this matter, or in his reasons for dismissing
    the action.

[4]

We do not accept the appellants submission that
    the motion judge erred by failing to find that there were issues requiring a
    trial. The appellant itself moved for summary judgment and did not take the
    position before the motion judge that there should be a trial. The motion judge
    correctly applied the principles articulated in
Hryniak
    v. Mauldin
, 2014 SCC 7 in concluding that the case
    could properly be decided by way of summary judgment.

[5]

The motion judge concluded that the purchaser of
    the vehicle was not the appellant, but was Roberto Imbiscuso, who entered into
    an agreement to purchase the truck from Summit Auto Brokers Inc. Mr.
    Imbiscusos name appears as purchaser in the vehicle purchase agreement. He
    purchased a third party warranty in his own name. Title to the vehicle was
    taken in Imbiscusos name. While there is a copy of the agreement naming both
    Imbiscuso and Turtle Creek as purchasers, the motion judge accepted the
    evidence of the respondents that this was not the actual agreement but was
    created for tax purposes at the request of Imbiscuso.

[6]

There was evidence to support the motion judges
    conclusion that Turtle Creek had no cause of action against the defendants
    because it was not the purchaser of the vehicle.

[7]

While this is sufficient to dispose of the
    appeal, we would not give effect to any of the appellants other arguments.
    There was no error in the motion judges conclusion that the appellant failed
    to prove that the truck required repairs or that the appellant paid for
    repairs. As for the appellants claim that the respondents tampered with the
    vehicles odometer, as the motion judge noted, no fraud was substantiated or
    pleaded in the action.

[8]

For these reasons the appeal is dismissed. Costs
    of the appeal, including costs reserved to this panel by Cronk J.A., are fixed
    at $5,500 inclusive of applicable taxes and disbursements to be paid by the
    appellant to the respondents.

Robert
    J. Sharpe J.A.

H.S.
    LaForme J.A.

K.
    van Rensburg J.A.


