CITATION: Zanzibar Tavern Inc. v. Nikolakis a.k.a. Universal Light & Sound, 2013 ONSC 4896
DIVISIONAL COURT FILE NO.: 578/11
DATE: 20130722
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER J.
BETWEEN:
ZANZIBAR TAVERN INC.
Plaintiff/Respondent
– and –
GEORGE NIKOLAKIS aka UNIVERSAL LIGHT & SOUND and 1134048 ONTARIO INC. c.o.b. UNIVERSAL LIGHT AND SOUND
Defendants/Appellants
Allen Cooper, Agent with Leave for the Plaintiff/Respondent
Ying Fang Cui, for the Appellants
HEARD at Toronto: July 22, 2013
LEDERER J. (orally)
[1] This is an appeal from a judgment of the Small Claims Court. The trial judge found that the appellant (the defendant at trial) misrepresented the effect of the lighting that was to be provided. The appellant says the factual determinations on which this finding is based are incorrect and do not properly consider or weigh the evidence. It should go without saying that it would not be proper for me to reweigh or rebalance the evidence. There is no palpable and overriding error.
[2] On the other hand, the trial judge found that the individual defendant, George Nikolakis, to be personally liable. This arose because the corporate defendant at the time of the trial was dissolved and the judge found that George Nikolakis was the only “viable defendant” that remained. I confess I am unclear as to what the judge meant. What is clear, is that an action can still be maintained against a dissolved corporation (see Corporations Act, R.S.O. 1990, c. C.38, s. 318).
[3] The question that remains is whether George Nikolakis was a party to the contract on his own behalf, separate from the corporation.
[4] The cheques that were issued by the respondent (the plaintiff in the action) were made out to Universal Light & Sound. The letterhead on which the quote was provided is in the name of Universal Light & Sound Inc. There is no such corporation.
[5] At the time the statement of claim was served, the defendant advised the plaintiff that the numbered company was the incorporated entity and operated under the name Universal Light & Sound.
[6] What seems plain is that there was a corporate entity. All parties operated on the understanding that it (whatever it’s name) was a party to the contract.
[7] There is no evidence that George Nikolakis, independent of his role with the company was also a party to the contract. The fact that the company dissolved does not make him a party to the contract. The fact that he was found to be a “viable defendant” does not make him one.
[8] The appeal is dismissed insofar as liability is concerned.
[9] It is granted insofar as the identification of the proper defendant is concerned.
[10] At the time of the trial, the respondent (the defendant at the trial) brought a motion to dismiss the action against the defendant corporation under the misapprehension there was no point in continuing because it had been dissolved. In the circumstances, this ruling is set aside. Judgment is entered against the corporate defendant consistent with the award made by the trial judge.
[11] Consistent with the submissions of Mr. Cooper on behalf of the respondent (the plaintiff in the action) and counsel for the appellant (the defendant in the action), there will be no order for costs given that success is divided.
LEDERER J.
Date of Reasons for Judgment: July 22, 2013
Date of Release: July 30, 2013
CITATION: Zanzibar Tavern Inc. v. Nikolakis a.k.a. Universal Light & Sound, 2013 ONSC 4896
DIVISIONAL COURT FILE NO.: 578/11
DATE: 20130722
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER J.
BETWEEN:
ZANZIBAR TAVERN INC.
Plaintiff/Respondent
– and –
GEORGE NIKOLAKIS aka UNIVERSAL LIGHT & SOUND and 1134048 ONTARIO INC. c.o.b. UNIVERSAL LIGHT AND SOUND
Defendants/Appellants
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: July 22, 2013
Date of Release: July 30, 2013