ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 07-CV-337931
DATE: 20120612

In the Matter of the Construction Lien Act , R.S.O. 1990, c.C-30 as amended

BETWEE N:

ABOVE ALL EMERGENCY SERVICES INC.

Gerard Barosan, for the Plaintiff

Plaintiff

• and -

EDA REUTER

Eda Reuter, the defendant, in person and represented by Alex Reuter on February 29, 2012 pursuant to leave granted at commencement of trial

Defendant

HEARD: February 29 and March 2, 2012

Master Polika

[ 1 ] The plaintiff seeks payment by the defendant of unpaid emergency flood remediation services in the amount of $80,948.19 and for unpaid storage of personal property in the amount of $40,500.00. The claim for unpaid emergency flood remediation services is based on an emergency authorization form which although it enumerated services to be performed did not set out the rates to be charged for such services. The claim for unpaid storage is based on an alleged verbal agreement or in the alternative on the basis of unjust enrichment or quantum meruit. In addition the plaintiff seeks a lien against the defendants lands and premises for the unpaid emergency flood remediation services, costs, pre-judgment interest and post-judgment interest at the rate of 26.82% per annum.

[ 2 ] The claim is defended on the basis that the plaintiff attempted to take advantage of the defendant, an elderly lady, that the plaintiff created a make work project for itself, that the plaintiff gave an estimate for the work of $60,000.00 but then charged $80,000.00, that the plaintiff caused unimaginable destruction to her lands and premises as well as other allegations and that the cost of rectification of the damage caused by the plaintiff exceeded any amount payable to the plaintiff. In respect of the claim for storage of personal property the defendant alleged that the plaintiff took possession of her personal property including art work, heirlooms, collector pieces and a Louis XVI Gilded Library and refused to allow her to view and retrieve her personal property notwithstanding she never authorized storage on a chargeable basis and that the plaintiff was holding her personal property hostage for the payment of the amounts claimed by it. On that basis the defendant pleads set-off and counterclaims for damage in the amount of $500,000.00.

[ 3 ] The trial commenced on February 29, 2012 and was adjourned to March 2, 2012 when it was completed. I reserved my decision.

Claim For Lien, Conduct of the Action and Conduct of the Reference

[ 4 ] The facts set out under this heading are not contentious and were accepted by the parties during the reference.

[ 5 ] The plaintiff registered its claim for lien as Instrument Number AT1481287 against the defendant’s lands and premises municipally known as 354 Hillcrest Avenue on June 21, 2007 claiming $80,948.39 for the supply of goods and services to the defendant from March 16, 2007 to May 11, 2007.

[ 6 ] On August 7, 2007 the plaintiff issued its statement of claim in this action claiming the sum of $80,948.39 from the defendant together with pre-judgment interest and post-judgment interest at the rate of 26.28% per annum based on an Emergency Authorization Form dated March 16, 2007 executed by the defendant. The plaintiff pleaded and relied upon 6 invoices, all dated May 17, 2007 totaling $80,948.39 one of which, invoice number 390 dated May 17, 2007 in the amount of $6,597.23, was solely for dealing with wrapping and removing the defendant’s personal belongings to the plaintiff’s warehouse.

[ 7 ] On September 4, 2007 the defendant’s solicitors wrote to the plaintiff’s solicitors stating “My client has requested the opportunity to attend at your client’s facility in order to conduct an inspection of the contents and retrieve some of her personal belongings.”

[ 8 ] The defendant delivered a statement of defence and counterclaim dated September 24, 2007 denying the claim and claiming by way of counterclaim damages in the amount of $500,000 and the return of her personal property allegedly unlawfully detained by the plaintiff.

[ 9 ] On March 16, 2009 the defendant’s solicitors wrote to the plaintiff’s solicitors confirming they had scheduled a motion for May 11, 2009 asking for the “return of my client’s personal property” and that “In our recent telephone discussion I asked you to contact your client and obtain instructions with respect to the release of the belongings. I understand from you that your client may take the position that he had some kind of a lien on the goods for storage. My client never agreed to pay any storage fees. Nonetheless it is an issue we can deal with in the context of the litigation.”

[ 10 ] On May 6, 2009 the plaintiff filed its reply and defence to counterclaim dated May 5, 2009. The defence amounted to a repetition of the allegations set out in the plaintiff’s statement of claim and a denial of the counterclaim. No leave of the court was obtained by the plaintiff for the delivery of a reply as required pursuant to the provisions of the Construction Lien Act and as such it is of no effect.

[ 11 ] The defendant served her motion record dated May 5, 2009 seeking the return of her personal property supported by her affidavit. The plaintiff responded to the motion with the affidavit of Nick Cigna sworn May 7, 2009.

[ 12 ] The motion came before Master McAfee on May 11, 2009 who endorsed the motion record as follows:

This is a motion brought in a construction lien action and should have been scheduled on a construction lien motions list not a regular motions list. Twenty-five minutes was confirmed for to-day. The parties have now scheduled this motion to proceed in a construction lien motions list for June 8, 2009 at 2:30 p.m. Costs of to-day are reserved to the return of the motion.

[ 13 ] Both parties filed additional affidavits in support of their respective positions on the motion, that of Catalina Lopez-Haynes and that of the defendant, both sworn June 4, 2009.

[ 14 ] The motion came before me on June 8, 2009 and after hearing the submission of counsel for both parties I endorsed my findings, reasons and disposition of the motion on the motion record as follows:

This is a construction lien action. The plaintiff has as security for its claim the property on which the alleged improvement was performed. Included in the claim for lien is the cost of transporting and wrapping the personal property removed from the real property by the plaintiff. Today verbally leave was sought pursuant to S.67(2) for leave to bring this motion. After hearing argument I granted leave on the basis of both prongs of the test. In terms of being necessary there appears to be no way of resolving the issue of possession of the personal property being determined in these unusual facts without the motion being brought. If left as is the goods appear to act as additional security for the claim for lien which is fully secured in any event. Further the second prong is satisfied in that it would expedite the resolution of the issues in dispute. Leave is granted to bring the motion. The only issue on the facts in relation to the personal property is whether free storage was conditional on the plaintiff performing reconstruction failing which storage costs would be charged. On the material before me it appears clear the removal of the personal property was part of the original contract re remediation of the property although terms not agreed to. There is a dearth of evidence relating to the rates to be charged by the plaintiff for all services. As to storage costs the contentious evidence is that no storage would be charged if plaintiff was hired to do reconstruction but no evidence at what rates. This part of the agreement is denied. The plaintiff cannot describe her property other than as set out in material given her age and given that the plaintiff has not provided as asked a listing of the property. Similarly other than a mutual acknowledgement of value the precise number is not available. Given my disposition about security value becomes de minimis in the context of the motion. There is no issue that the owner is the defendant and that she is entitled to lawful possession of the property. The basis of removal is such that once demand was made for return in the context of the agreement to remediate (verbal) there was no right to withhold possession of the goods. As to security the plaintiff by its lien is fully secured for its claim by the real property. Accordingly there shall be no order for security it being just in the circumstances. In the circumstances before me:

ORDER TO GO:

(1) Plaintiff to provide to defendant a list of all personal property it removed and their present state (freezing, etc.), from the defendant’s residence, by June 23, 2009 sufficient in order for the defendant to make arrangements for their removal.

(2) Plaintiff shall also indicate where the property is being stored along with the list.

(3) The defendant shall then on 7 days notice be entitled to attend at the place where the goods are being stored and receive possession thereof and at the time of removal shall give a receipt therefore which receipt shall indicate a description of the property, its value if known and its condition. Each party shall be entitled to take a digital photograph of each item at that time. Defendant is responsible for making any necessary arrangements to preserve the property from that point, e.g. if books have been frozen to arrest deterioration thereof it shall be defendant’s responsibility to take necessary steps to prevent any further deterioration or such deterioration shall be at defendant’s risk.

(4) Cost of returning personal property incurred by defendant to be paid by defendant in first instance.

(5) Costs of the motion fixed at $1500.00 inclusive of GST and disbursements payable as trial judge or reference master, as case may be, at the conclusion of the trial decides.

I heard counsel on costs. My determination was made on the basis of the reasonable expectation of the parties as to costs on a motion such as this, the material filed, the matters in issue and what is just in the circumstances as well as the importance of the motion to both parties.

[The remainder of the judgment continues exactly as provided in the source text, including all numbered paragraphs, headings, and the final disposition.]

Master Polika

Released: June 12, 2012

[^1]: Exhibit M, Nick Cigna’s Affidavit sworn June 17, 2011
[^2]: Paragraph 12, Affidavit of Nick Cigna sworn June 17, 2011
[^3]: Exhibit “E” Affidavit of Nick Cigna sworn June 17, 2011
[^4]: Exhibit 5
[^5]: Also see my findings in this respect in paragraph 53 above.