Ontario Civil


Civil Procedure

DEFAULT
Deputy judge should not have ignored admission of liability of respondents under lease

Appellant entered into four-year written agreement with respondent for used vehicle. Respondents failed to make lease payments. Appellant repossessed vehicle. Appellant terminated lease and sued for deficiency balance. Respondents failed to defend and were noted in default. Appellant’s motion for assessment of damages and action were dismissed with suggestion that appellant engaged in deceptive and unfair practices contrary to Consumer Protection Act, 2002 (Ont.). Appeal allowed. Decision was set aside. Matter was referred back for assessment of appellant’s damages on appellant providing further and better affidavit. Deemed admission by respondents of liability in law to appellant because of default meant respondents were admitting to liability to it in all respects. Respondents could not be alleging anything that would result in denial of liability including potential violation of provisions of Act. Deputy judge should not have ignored admission of liability of respondents under lease. Deputy judge misapprehended relevant evidence and made speculative inferences from evidence when there was no basis to do so, and factual errors amounted to palpable and overriding error. Deputy judge provided no notice to appellant that he was considering dismissal of claim or finding of no damages because of alleged applicability of Act notwithstanding admission of liability by respondents. There was lack of procedural fairness. Appellant should have been given opportunity to address concerns with provisions of Act.

Action Auto Leasing & Gallery Inc. v. Crawford (Oct. 16, 2013, Ont. S.C.J., R.J. Nightingale J., File No. CV-13-107) 233 A.C.W.S. (3d) 581.

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