COURT FILE NO.: DC-07-084085-00

DATE: 20080207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AIRLUX COOLING AND HEATING SYSTEMS INC. v. APOLLCO PROPERTIES LTD.

BEFORE: The Honourable Mr. Justice Boswell

COUNSEL: Mr. M. Izadi in person and as agent for Airlux

Mr. W. Malamas as agent for the Defendant/Appellant, Apollco

E N D O R S E M E N T

Background:

[1] The Defendant, Apollco Properties Ltd. (“Apollco”), appeals from the Judgment of Deputy Judge Kowalishin dated April 18, 2007, in the Small Claims Court at Richmond Hill.

[2] The Claim of the Plaintiff is for damages for breach of contract – essentially the amount outstanding on an unpaid invoice.

[3] The parties agree that the Defendant was overseeing renovations to a property at 535 Pape Avenue in Toronto, Ontario in or about the late Fall of 2005. The Defendant hired the Plaintiff on a subcontract basis to, amongst other things, supply and install a high efficiency boiler, remove an existing oil tank and all waste from such work, including any asbestos on site.

[4] A $1,000.00 deposit was given against a contract price of $6,500.00, plus GST. The balance of the contract price was due 3 days after completion of the work and after any approvals of necessary authorities were obtained.

[5] The Plaintiff considers this to be a straightforward case of non-payment for services rendered.

[6] The Defendant alleges that the Plaintiff, and more particularly its principal, Mr. Izadi, is part of scheme or “plot” as he calls it, in concert with organized crime, to sabotage the project at 535 Pape Avenue.

[7] The Defendant alleges that there are numerous deficiencies with the work of the Plaintiff. Specifically, that an improper boiler was installed, that asbestos was not properly removed and that 2 radiators were not properly functioning at the completion of the Plaintiff’s work. The Defendant’s position is that the Plaintiff’s deficiencies were deliberate and calculated to cause him injury. His expressed view, in fact, is that the Plaintiff is working in connection with two solicitors with the surname Stanoulis, who are part of a larger conspiracy against him to cause him continued grief, aggravation, harassment and injury.

[8] The Plaintiff was successful at trial. The trial Judge Ordered the Defendant to pay to the Plaintiff the sum of $5,500.00, plus $215.00 in costs and $250.00 in counsel fees. The Defendant’s claim for damages for conspiracy was dismissed.

The Appeal

[9] The Defendant asks that the Judgment be set aside and that the following relief be granted:

a) An Order dismissing the Plaintiff’s claim, with costs;

b) An Order finding the Plaintiff in contempt for breach of certain interim orders;

c) A Judgment in favour of the Defendant on the Defendant’s Claim; or,

d) Alternatively, that a new trial be ordered.

[10] The issue of contempt is not properly before the Court and I decline to consider that matter altogether. There is no evidence before me to indicate that there was ever a motion brought against the Plaintiff, whether prior to or at trial, to find the Plaintiff in contempt. Moreover, the factual record before the Court does not justify a finding of contempt even if the issue was properly before the Court at this time.

[11] The Supplementary Notice of Appeal lists the grounds on which the appeal is brought. The trial judge is alleged to have erred in the following ways:

a) by failing to find that the Plaintiff was involved in a scheme to sabotage the home at 535 Pape Avenue;

b) by failing to find the Plaintiff in contempt of the Orders of Deputy Judge Rossi and Deputy Judge Baker;

c) by failing to strike out the Plaintiff’s claim for breach of the Orders of Deputy Judges Rossi and Baker;

d) by failing to find that the Plaintiff had breached its contractual obligations to the Defendant;

e) by refusing to permit the Defendant to solicit evidence from William Sheppard, who was proposed as a witness for the Defendant to provide evidence regarding the quality of the boiler installed by the Plaintiff; and

f) by putting pressure on the Defendant to release a further witness, Nicholas Stanoulis, from his Summons to Witness.

[12] The Supplementary Notice of Appeal sums up the Defendant’s position by saying that the Defendant was denied its day in Court.

Analysis

[13] I shall deal with the grounds for the appeal in turn. Before doing so, however