DATE: 20060306

DOCKET: C43782

COURT OF APPEAL FOR ONTARIO

RE: RICK MUNRO and ANNE KELLY (Appellant) –and- BLUFFER’S PARK MARINA LIMITED and BLUFFERS PARK MARINA & TOTAL MARINE SERVICES LTD. (Respondents)

BEFORE: MCMURTRY C.J.O., FELDMAN and LANG JJ.A.

COUNSEL: Robert Doumani for the appellant W. Bruce Drake for the respondents

HEARD & RELEASED ORALLY: March 2, 2006

On appeal from the judgment of Justice John R.R. Jennings of the Superior Court of Justice, dated June 2, 2005 made at Toronto, Ontario.

E N D O R S E M E N T

[1] The application judge found as a fact that the respondents acted “reasonably” within the meaning of s. 18 of the Dock License Agreement (the “license agreement”). In our view, not only did the evidence support this factual finding, but the respondents acted more than reasonably in their efforts to resolve the issue of the municipal taxes payable with respect to the appellant’s docked vessel. Since the respondents acted reasonably, they are entitled to reimbursement for the taxes charged.

[2] The question remains whether the respondents are entitled to a lien for the outstanding taxes under the Repair and Storage Liens Act, R.S.O. 1990, c. R. 25. Section 4(1) of the Act provides a “storer” with “a lien against an article that the storer has agreed to store.” Section 4(3) specifies that a storer’s lien only arises when the “storer receives possession of the article for storage”.

[3] On the facts of this case, the respondents never received possession of the appellant’s vessel, which the appellant continued to occupy as his home throughout. In addition, under the terms of the license agreement, the appellant contracted only for “dockage” of his vessel at the respondents’ marina and not for its storage. Indeed, on cross-examination, the respondents’ general manager acknowledged that the dockage fees were for mooring of the vessel and not for its storage.

[4] Accordingly, the appeal must be allowed to the extent that a declaration will issue that, on the facts of this case, the Repair and Storage Lien Act does not apply.

[5] As success on this appeal is divided, there will be no order as to costs.