SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-10-4797-SR
DATE: 20120425
RE: Ecolab Co. v. SAVD Holdings Inc. and Peter Dimakos
BEFORE: Fragomeni J.
COUNSEL:
John M. Gray, for the Plaintiff
Paul Luizos, for the Defendants
HEARD: April 17, 2012
E N D O R S E M E N T
[ 1 ] The plaintiff seeks the following relief:
- An interim order for the recovery of the following property:
(i) A Jackson ES 2000 dish machine, serial number 22768;
(ii) A Moyer Diebel Dufyn glass washer, serial number C7522.
An order transferring the balance of this action to the Brampton Small Claims Court;
Costs.
[ 2 ] On May 5, 2004 Ecolab and Mixed Grill Catering Corp. entered into a rental agreement for the rental of the dish machine. On September 12, 2008 Ecolab and Mixed Grill entered into a rental agreement for the glass washer. Ecolab had the right, pursuant to these agreements, to terminate the agreement and take possession of its equipment on default.
[ 3 ] The said equipment was located at 2319 Lakeshore Road West in the Town of Oakville. This property is owned by the defendant SAVD, and Dimakos is the principle of SAVD.
[ 4 ] Mixed Grill defaulted and Ecolab attempted to make arrangements with Dimakos for the removal of Ecolab’s equipment from the premises. Dimakos did not claim ownership of the equipment, however, he would not return the equipment on the following grounds:
(a) He needed clearance from the Ministry of Revenue;
(b) He wanted Ecolab to pay for storage of the equipment while the premises were closed;
(c) Signatures on paper work provided by Ecolab as proof of ownership of the equipment were forgeries.
[ 5 ] When Ecolab’s solicitors demanded the return of the equipment from the new tenant, the Big Smoke Barbeque, Big Smoke took the position that it owned the equipment as a result of buying it from the landlord, Dimakos.
[ 6 ] Dimakos takes the following position:
(a) The signature on the landlord’s waiver is a forgery;
(b) The equipment belonged to the building, that he bought it from a bailiff and he had a Bill of Sale for the equipment from the bailiff.
[ 7 ] The Big Smoke took over the premises on or about October 2010. They took over the premises along with any equipment left at the premises. The Big Smoke left the premises on or about March 2011 without notice to the landlord. Big Smoke took all the equipment when they left. Dimakos has no knowledge of where the equipment is.
[ 8 ] At this time the defendants are not in possession of the equipment. According to Dimakos, Big Smoke left with the equipment and Dimakos has no idea where it is.
[ 9 ] In support of its motion the Plaintiff filed three Affidavits:
Heather Klodner – EDLP Administrator for Ecolab sworn December 19, 2011;
Anthony Marcantonio, Territory Manager for Ecolab, sworn March 16, 2012;
Mr. Earl Lewis, bailiff retained by Ecolab to attempt to recover the equipment sworn March 5, 2012.
[ 10 ] I will start with the Affidavit of Earl Lewis. At paragraphs 3 and 4 Lewis deposes the following:
On April 15, 2009, I sent a fax to the Defendant, Peter Dimakos, to arrange for the return of Ecolab’s equipment.
On July 3, 2009, I had a telephone conversation with Mr. Dimakos. Mr. Dimakos advised me that he would not allow removal of Ecolab’s equipment without Ministry clearance. Mr. Dimakos was fully aware of the rental status of ecolab’s equipment.
[ 11 ] At paragraph 3 of his Affidavit, Marcantonio sets out the following:
- On September 29, 2009, I visited 2319 Lakeshore Road West in the Town of Oakville. Prior to September 29, 2009, Ecolab’s customer, Mixed Grill Catering Corp., was carrying on business at this location. When I visited this location on September 29, 2009, the Big Smoke Barbeque was carrying on business at this location and I personally observed Ecolab’s equipment, a Jackson ES 2000 dish machine, serial number 22768, and a Moyer Diebel Dolfyn glass washer, serial number G7522, installed at this location.
[ 12 ] The owner of Big Smoke Barbeque, Dusan Jankovics, advised Marcantonio that he purchased Ecolab’s equipment from the defendants.
[ 13 ] In his Affidavit sworn February 10, 2012, the defendant, Peter Dimakos states the following at paragraph 7:
- The Big Smoke left the Premises on or about March 2011 without notice to the Landlord and took all the equipment at the Premises when they left. I have no knowledge of where the equipment alleged belonging to the Plaintiff is.
[ 14 ] However, Marcantonio sets out the following at paragraphs 6 and 7 of his Affidavit:
- The Defendants could not have obtained Ecolab’s equipment from Ricco’s Bar and Grille Inc. for the following reasons.
The Dish Machine
(a) Ricco’s Bar and Grille Inc. was not a customer of Ecolab and never rented a dish machine from Ecolab. The dish machine identified in Exhibit “B” to Mr. Dimakos’ Affidavit is a Diversey Dish Machine. Diversey is a competitor of Ecolab. This dish machine is not Ecolab’s equipment.
(b) According to the Exhibit “B” to Mr. Dimakos’ Affidavit, the dish machine he says he purchased was seized and sold to him in 2002. Ecolab’s dish machine was not installed at 2319 Lakeshore Road West until 2004. Attached as Exhibit “A” hereto is a true copy of the Bill of Lading for Ecolab’s dish machine.
The Glass Washer
(c) The glass washer referred to in Exhibit “B” to Mr. Dimakos’ Affidavit is not identified by make, model or serial number.
(d) According to the Exhibit “B” to Mr. Dimakos’Affidavit, the glass washer he says he purchased was seized and sold to him in 2002. Ecolab’s glass washer was not installed at 2319 Lakeshore Road West until 2008. Attached as Exhibit “B” hereto is a true copy of the Bill of Lading for Ecolab’s glass washer.
- Nobody from Ecolab has specific recollection with respect to the signing of the Landlord’s Waiver which is attached as Exhibit “C” to the Affidavit of Heather Klodner sworn December 19, 2011. I believe that the Landlord’s Waiver was likely left with a representative of Mixed Grill to arrange for the Landlord to sign.
[ 15 ] The Affidavits filed at this motion are conflicting. The material would indicate that there are issues relating to fraud, priorities, damages for loss of rental income. None of the Affidavits have been the subject matter of cross-examination.
[ 16 ] The Statement of Claim in this matter was filed on December 23, 2010. In the claim the plaintiff claims an interim and permanent order for the recovery of the equipment. The plaintiff also seeks damages in the sum of $26,000. The Statement of Claim indicated that the action is being brought under the Simplified Procedure provided in Rule 76 of the Rules of Civil Procedure.
[ 17 ] I am not satisfied that this matter ought to be transferred to Small Claims Court. The defendants strongly oppose a transfer to Small Claims Court. Section 23(1)(a)(b) of the Courts of Justice Act states:
JURISDICTION: The Small Claims Court,
(a) has jurisdiction in any action for the payment of money where the amount claimed does not exceed the prescribed amount exclusive of interests and costs; and
(b) has jurisdiction in any action for the recovery of possession of personal property where the value of the property does not exceed the prescribed amount.
[ 18 ] There is nothing in the evidentiary record setting out the value of the equipment.
[ 19 ] I am satisfied that this matter continue under the simplified procedure provided in Rule 76 as brought by the plaintiff in its Statement of Claim.
[ 20 ] The plaintiff’s motion is dismissed as the issues to be determined require a trial.
[ 21 ] On a preliminary view, it is my view that costs of this motion should be reserved to the trial judge. However, if counsel wish to make written submissions on costs they can file same within 10 days (2 pages in length).
Fragomeni J.
DATE: April 25, 2012