v. Albona Investments Inc., 2019 ONSC 2878
DIVISIONAL COURT FILE NO.: DV-1074-17
DATE: 2019-05-29
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Poupore, J.
BETWEEN:
1582663 Ontario Ltd. aka M&R Mining Equipment
Respondent (Plaintiff)
– and –
Albona Investments Inc.
Appellant (Defendant)
J. Robert Leblanc, for the Respondent
Scott M. Whalen, for the Appellant
HEARD: April 26, 2019
DECISION ON APPEAL
[1] The appellant Albona Investments Inc. (“Albona”) appeals the judgment of Deputy Judge Cassidy of the Small Claims Court in favour of 1582663 Ontario Ltd. aka M&R Mining Equipment (“M&R”) in the amount of $25,000 and the dismissal of Albona’s claim for amounts owing to it from M&R.
[2] The facts are not in dispute. For six years M&R was the tenant of Albona in a commercial building. The landlord and tenant then signed a lease covering the period from January 1, 2012 to January 1, 2015. The lease provided for a base rent together with common area expenses.
[3] M&R was not remitting the common area expenses on a regular basis because it said that Albona was not maintaining the premises in a good state of repair.
[4] On February 13, 2015, Albona changed the locks on the rental premises. M&R removed the locks and re-entered its business on February 16, 2015.
[5] On March 13, 2015, Albona sent in a bailiff with a distraining order. Shortly thereafter Albona seized the chattels and placed concrete barriers on the premises preventing their removal by M&R.
[6] Albona had signed a waiver of distraint with Nickel Basin Federal Development Corporation (“Nickel”) on October 5, 2011. M&R’s equipment was pledged as security to Nickel in order to obtain a business loan. Nickel eventually obtained possession of the equipment including third party chattels from Albona and sold them at auction.
[7] Prior to the sale M&R requested the return of the chattels from Albona and obtained an order in the Small Claims Court to that effect. Albona refused to return the property (even though its value far exceeded Albona’s claim) and turned it over to Nickel.
[8] Albona on the appeal takes the position that M&R suffered no damages as a result of its actions. Rather if damages were incurred they are a result of Nickel’s seizure and sale of M&R’s goods.
[9] As well, Albona states that the Deputy Judge made an error by finding that Albona had not proven its damages for unpaid common area expenses.
[10] Having read the materials filed on the appeal, the decision of the Deputy Judge as well as hearing argument I am satisfied that the appeal be dismissed.
[11] The lease came to an end on January 1, 2015. At that point M&R became an overholding tenant.
[12] On February 12, 2015, Albona changed the locks thereby bringing the landlord and tenant relationship to an end.
[13] The distraint exercised by Albona on March 13, 2015 was illegal. M&R was entitled to the return of its chattels. Albona had no legal right to the chattels and was not in a position to turn them over to Nickel.
[14] The actions of Albona put M&R out of business. The Deputy Judge therefore had sufficient evidence before her to order damages.
[15] The claim of Albona for arrears of common area expenses was not supported in the evidence. There may have been evidence that M&R did not pay the requisite amount of common area expenses but there was insufficient sworn evidence at trial to assist the presiding judge in quantifying a proper amount. The Deputy Judge’s finding that Albona’s damages were not proven at trial is well supported by the lack of evidence at trial.
[16] Further the standard of review that I am bound to on this appeal prevents me from disturbing the findings of fact made by the Deputy Judge.
[17] The appeal is therefore dismissed. The parties have agreed to costs fixed in the amount of $5,000 plus HST. The plaintiff (respondent) shall have its costs fixed in that amount.
The Honourable Mr. Justice John S. Poupore
Released: May 29, 2019
v. Albona Investments Inc., 2019 ONSC 2878
DIVISIONAL COURT FILE NO.: DV-1074-17
DATE: 2019-05-29
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
1582663 Ontario Ltd. aka M&R Mining Equipment
Respondent (Plaintiff)
– and –
Albona Investments Inc.
Appellant (Defendant)
DECISION ON APPEAL
Pourpore, J.
Released: May 29, 2019