NEWMARKET COURT FILE NO.: CV-24-00001005 DATE: 20240506 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TWISHA TALPADE and VINEET TALPADE Applicants – and – AMJ CAMPBELL COMPANY TORONTO EAST and JAMES YAECK Respondents
Counsel: Twisha Talpade and Vineet Talpade, Self-Represented Jonathan De Biasi, for the Respondents
HEARD: April 24, 2024
REASONS FOR DECISION
dE SA J.:
Overview
[1] This is a motion brought by Vineet and Twisha Talpade (the “Talpades”), seeking interlocutory relief under Rule 40 and s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Talpades seek to restrain the Respondent, AMJ Campbell Company Toronto East (hereinafter “AMJ”) from selling property held at the Respondent’s storage facility, namely the contents of their home.
[2] AMJ submits that the Repair and Storage Liens Act, R.S.O. 1990, c.R.25 (the “RSLA”) is a complete code with respect to the substance of the proposed action by the Talpades. Accordingly, the Talpades should be ordered to make use of the dispute resolution provisions contained in the RSLA.
[3] I agree with the Respondent. The RSLA is the proper legislation governing disputes in relation to the property at issue. While this Court has the requisite jurisdiction under the RSLA to grant injunctive relief, I see no basis to do so in this case.
[4] Accordingly, the Applicants’ motion is dismissed.
Summary of Facts
[5] AMJ is based in Markham, Ontario, and provides moving and storing services to its customers.
The Contract
[6] The Talpades contacted AMJ in or around December 2019. They required moving and storing services, as they intended to move to Birdsboro, Pennsylvania, USA. The contract governing the parties was signed in January 2020.
[7] The terms of the January 2020 contract included the following:
a. That an inventory would be prepared for items to be relocated; b. That items valued at $5,000 or more would be photographed; c. That insurance would be arranged for the total value of the items by AMJ; and d. Monthly storage charges would apply to items in AMJ’s warehouse at a rate of $3,000 per month, plus HST. e. Storage charges began after the last item was moved to AMJ’s warehouse, and were due and payable in 3-month increments. The first storage charge was due and payable within 90 days of the last item being moved, in the amount of $9,000+HST. After this, storage charges were due and payable every 3 months at a rate of $9,000+HST. In the first year, the sixth and twelve months were for free.
[8] Moving of the Talpades’ items began in January 2020, but was put on hold in April 2020 due to the COVID-19 pandemic. It resumed in the summer of 2020, with the last item required to be stored by the Talpades moved on September 10, 2020. Thereafter, AMJ charged for storage of the Talpades’ items at the above noted rate.
Dispute Concerning Photographs, Inventory, and Insurance
[9] AMJ used an insurance company to insure its customers items during the move. It was the responsibility of the customer to provide the estimated overall value of their items. In the event of a loss over $5,000 for a particular item, AMJ’s insurer required receipts or replacement quotes. In the event neither were available, photographs could be used to determine a value.
[10] The Talpades wished to photograph their items for insurance purposes and requested AMJ’s assistance with this. On January 23, 2020, it was made clear by Mr. Marcel Niles, an employee of AMJ, that the Talpades would need to identify any item valued above $5,000.
[11] During the packing of the Talpades’ items in 2020, the Talpades identified items they believed were valued above $5,000. AMJ took pictures of those items. An inventory for all items was prepared as boxes were packed. The pictures and the inventory lists were provided to the Talpades.
[12] In late 2020 to early 2021, Vineet Talpade sent a series of emails, where he demanded a fully detailed description and itemized list of items in each package, with pictures of each item. Vineet was of the view this was needed for any insurance claim that was made to AMJ’s insurer and for the purpose of moving to the USA. He also demanded AMJ obtain appraisals on all items to ascertain what is worth $5,000 or more.
[13] AMJ did not agree to take these additional steps as the items had already been packed and photographed. After speaking with their insurer, AMJ was also satisfied that they had taken the requisite steps to obtain the necessary coverage.
[14] In 2021, the Talpades decided to obtain their own insurance, and not use AMJ’s insurer.
[15] While the Talpades indicated an intention to obtain their own insurer, nothing was done to make the necessary arrangements.
[16] From 2021 to 2024, the Talpades’ move was delayed due to the following reasons:
a. The Talpades’ new home in the United States had a major problem with water in the basement, and they could not move anything to the United States until it was resolved. b. The Talpades themselves delayed the move. They booked dates for the move, only to cancel them. They then subsequently asked for new dates on short notice, which AMJ could not accommodate. c. AMJ attempted to get the Talpades to store the items in the United States, but they refused to do so because they did not like the storage options. d. AMJ would not proceed with the move until payment was received, and, in response, the Talpades informed AMJ they simply did not have the funds.
Current Charges to Date
[17] The items remain stored with AMJ. In March 2024, AMJ provided an updated invoice to the Talpades. Storage charges alone are now at $120,000, plus HST.
Analysis
Does AMJ have a Possessory Lien over the Talpades’ Goods, as defined in the RSLA?
[18] Under the RSLA, storer is defined as follows:
“storer” means a person who receives an article for storage or storage and repair on the understanding that the person will be paid for the storage or storage and repair, as the case may be.
Repair and Storage Liens Act, R.S.O. 1990, c. R.25, at s. 1.
[19] Under s. 4(1) of the RSLA, a storer has a lien on any article stored, and the storer may retain possession of the article until the lien is paid: Repair and Storage Liens Act, R.S.O. 1990, c. R.25, at ss. 4(1) and 4(3); Krates Keswick Inc. v. Brian Miller, 2018 ONSC 1976, at para. 34; Frontenac Mortgage Investment Corporation v. Hyde Park Residences Inc., 2015 ONSC 4457, at paras. 15-16.
[20] AMJ has stored the Talpades’ items since 2020, and continues to hold them today. The 2020 contract between itself and the Talpades expressly notes the cost for storage. In light of this, AMJ is a storer as contemplated by the RSLA and clearly has an automatic possessory lien to the items currently in storage.
[21] I agree with AMJ that the RSLA is a complete code that sets out the rights and obligations of repairers, storers and owners of personal property: Krates Keswick Inc. v Brian Miller, 2018 ONSC 1976, at paras. 23-26; Hamilton v. 1262108 Ontario Inc., [2001] O.J. No. 2626, at paras. 15-16.
[22] The RSLA provides access to the Court, specifically under ss. 23 and 24 to deal with disputes relating to property.
[23] In any event, even if the application were brought under the RSLA, I would not grant the relief sought.
[24] The Talpades have left the items in storage with AMJ since September of 2020. Despite expressing the intention to obtain their own insurance, the Talpades did nothing to follow up and deal with their shipment.
[25] They have not made any efforts to arrange for alternate storage or pay out the storage fees owing to AMJ which continue to accrue.
[26] The Talpades have also acknowledged that they no longer have the means to pay out the amount owing, nor do they have the money to pay out the costs associated with having the items delivered to their current address in the United States.
[27] The Talpades have repeatedly reassured AMJ that they had sufficient inventory to cover unpaid bills, acknowledging that AMJ could sell the items in the event it needed to recover its costs. Such a position is inconsistent with the Talpades now claiming that nothing can be sold and it would cause them irreparable harm.
[28] I agree with AMJ that the Talpades are merely attempting to avoid the consequences of non-payment.
[29] If an injunction were granted, AMJ would be forced to continue to store the items without payment.
[30] I would not grant the relief in the absence of the Applicants posting security for the outstanding amounts owed: Section 24(4) of the RSLA.
[31] The application is dismissed.
[32] AMJ has 2 weeks to provide its submissions on costs. The Talpades will have 2 weeks thereafter to provide a response.
Justice C.F. de Sa Released: May 6, 2024