ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 08-CV-350836PD3
DATE: 20140326
BETWEEN:
Landmark Vehicle Leasing Corporation
Plaintiff
– and –
Mister Twister Inc., Amadeus Blazys a.k.a. Amadeus Amo Blazys a.k.a. Amadeus A. Blazys and Luisa M. Blazys a.k.a. Luisa Blazys
Defendant
David Winer, for the Plaintiff
Charles Wagman, for the Defendant
HEARD: June 25, 26 and 27, 2013
carole j. Brown j.
reasons for decision
[1] This trial arises from three vehicle leases held, by assignment, by the plaintiff, Landmark Vehicle Leasing Corporation, with the three vehicles driven by the defendants. It is alleged that there are arrears outstanding as regards all three vehicles. The plaintiff seeks payment of all arrears and concomitant charges from the defendant lessees as regards the three leases.
[2] The defendants submit that all cars were returned to the plaintiff and that there are no arrears outstanding.
[3] Several issues were raised at the outset of the trial. It was clear that the statement claim, which was prepared by the plaintiff's former counsel and not amended, contained errors as regards the various leases, their terms and the details thereof, as is evidenced from the documentation produced at discovery and trial, and based on the testimony of the parties at discovery and trial.
[4] At the commencement of the trial, Mr. Winer, counsel for the plaintiff, requested to amend the statement of claim. Mr. Wagman, counsel for the defendants, objected based on issues of limitation date. He further objected to introduction of documentation which he said had just been produced the previous week.
[5] This Court indicated that the trial could be adjourned to permit both parties to argue the issues of amendments and limitation date. However, Mr. Winer subsequently decided to proceed without amendments, stating that the statement of claim should be read by this Court generously in light of all of the evidence before the Court. He further submitted that there was no issue as regards the case that the defendants had to meet as the defendants knew, from the beginning, the case to be met.
[6] As regards production of documents, while there were numerous objections to evidence to be adduced by the plaintiff which the defendant stated he had never seen, based on correspondence between counsel, said evidence had been provided to the defendant in answers to undertakings, much of it sent in July of 2011, or was canvassed at the examination for discovery of the defendant, Amadeus Blazys. This was ultimately conceded by defendant’s counsel.
[7] While, at the commencement of trial, there were also issues raised by Mr. Wagman as regards the assignment of the lease from the original lessor, Ross Wemp Leasing Inc. ("Ross Wemp") to the plaintiff, by the end of trial, counsel were in agreement as regards the assignment of leases and, in particular, the three subject leases, and this was no longer an issue.
The Evidence
The Leases in Issue
[8] Leases and extensions of those leases for three vehicles were in evidence before the Court. The leases were executed between, Ross Wemp, as original lessor and the defendants, or some of them, as lessees.
The 1999 Mercedes-Benz
[9] Pursuant to a lease between Ross Wemp and Luisa M. Blazys, executed December 24, 2002, a 1999 Mercedes-Benz was leased to Ms. Blazys for a term of 48 months from January 1, 2003 at a monthly rental of $780.31 plus applicable taxes (Exhibit 13). The vehicle was delivered December 24, 2002, and there is no issue as regards the fact that the Mercedes was in the possession of the defendant from December 24, 2002. Pursuant to the lease, the defendant was to pay an additional $5,000 in April of 2003 which, based on the evidence of both the plaintiff and Amadeus Blazys, would reduce the monthly rental fee. The depreciated residual value of the Mercedes at lease end was stipulated, pursuant to the leasing agreement, Schedule A, to be $16,000. The lease was signed by Cynthia Jackson, the Vice President of Ross Wemp and there is a signature under Luisa M. Blazys which appears to be "L Blazys". Ms. Blazys, in her evidence, denied ever having signed this lease. Her husband, Amadeus Blazys, also denied signing this lease. Neither of them denied that the vehicle was leased pursuant to a written leasing agreement, nor that the vehicle was delivered to them, nor that Ms. Blazys drove the Mercedes "99.9% of the time", as her husband had another car which he drove.
[10] A second lease, as regards the Mercedes-Benz, was in evidence (Exhibit 14). This lease, between Ross Wemp and Luisa M. Blazys is dated June 9, 2003. The evidence indicated that this lease was signed as an amending lease after the $5,000 was paid, which reduced the rental fee to $665.50 per month plus applicable taxes. The term of the lease was 44 months from May 1, 2003 and the depreciated residual value of the vehicle at lease end continued to be $16,000. Again, the lease was signed by Cynthia Jackson for Ross Wemp and there is a signature under Luisa Blazys which appears to be "L Blazys". Again, Ms. Blazys denies that she signed the leasing agreement, as does Amadeus Blazys. They admitted that the vehicle remained in their possession, driven by Ms. Blazys, until January of 2008.
[11] A third lease as regards the Mercedes-Benz, dated January 24, 2007, which was described as an extension to the previous lease, was in evidence (Exhibit 3). This lease was between Ross Wemp Leasing and Luisa M. Blazys A/O Amadeus A. Blazys. "A/O" was indicated by counsel and by evidence given by the plaintiff to be "and/or". The term of the lease was for 60 months from January 1, 2003 at a monthly rental of $665.58 per month plus taxes. The depreciated residual value at lease end, namely January 1, 2008, was changed to $9,800. The lease was signed by Amadeus Blazys, as confirmed by him in his testimony. The evidence indicates that it continued to be driven by Ms. Blazys throughout.
The Dodge Ram
[12] A Motor Vehicle Leasing Agreement for a 2002 Dodge Ram 3500 Dually vehicle was executed between Ross Wemp Leasing and Amadeus A. Blazys on February 13, 2004 with the same delivery date (Exhibit 4). The term of lease was 48 months from March 1, 2004 at a monthly rental of $638.56 and a depreciated residual value of $14,000 at lease end, which was March 1, 2008. Schedule A of the leasing agreement indicated "Customer to pay an additional $5,000 plus taxes in May 2004 to reduce monthly rental". There is no indication that this was ever done. Mr. Blazys testified that he believed he had paid the $5,000. However, he had no records of such payment to support this. There is no amended lease, as with the Mercedes-Benz, and the monthly payments continued to be $638.56. Ms. Guglielmello testified that, had there been a payment of $5,000, it would have been indicated in the account statement and reflected in a reduction in monthly rental fees, which was not the case and, as well, there would have been an amended lease, which there was not.
The GMC Truck
[13] A Motor Vehicle Leasing Agreement for a 1994 GMC FCC truck was executed between Ross Wemp Leasing and Mister Twister on May 8, 2003, with the same delivery date (Exhibit 22). The term of lease was for 48 months from June 1, 2003 at a rental fee of $682.09 per month plus applicable taxes. The depreciated residual value at lease end, namely June 1, 2007, was $5,000. The lease was signed by Cynthia Jackson on behalf of Ross Wemp and by Amadeus Blazys on behalf of Mister Twister. In his testimony, Mr. Blazys admitted that the signature was his.
[14] A second lease was executed on July 21, 2005, again signed by Mr. Blazys on behalf of Mister Twister for a term of 48 months from July 1, 2005 at a rental of $700 per month plus applicable taxes, and with the depreciated residual value of $8,700 at lease end, which was July 1, 2009 (Exhibit 2). A notation on Schedule A of the lease reads as follows: "Loss from unit 37980 added to this unit". The evidence, while not conclusive, indicated that this appeared to be a refinancing of the unit, which precipitated the amended lease and the increased rental fee. The evidence of Landmark was that they, on occasion, repurchased a vehicle from a client and refinanced it for them on their behalf, which would result in another lease being executed, and which would explain the notation "Loss from unit 37980".
[15] The leased vehicle was used in the defendants’ business as an ice cream truck.
The Plaintiff’s Evidence
[16] On behalf of the plaintiff, evidence was given by the former president of the plaintiff, Mark Emin, the business manager responsible for accounts receivable, Cheryl Guglielmello, and the legal assistant, Ashley Spicer. The synopsis follows.
Mark Emin
[17] Mark Emin was the President of Landmark in November of 2007, when Landmark purchased the vehicle leases previously owned by Ross Wemp Leasing, as evidenced by the General Conveyance and Assignment of Leases Agreement, dated November 1, 2007 (Exhibit 1).
[18] Mr. Emin identified, in the Conveyance and Assignment Agreement, Schedule A, Leases, a list of all the leases that were transferred to the plaintiff pursuant to the asset purchase. The Schedule A list included the year and type of vehicle leased and the VIN number of each vehicle. By referring to the three subject leasing documents in this action and to Schedule A of the Conveyance and Assignment Agreement, he was able to identify all three of the vehicles leased to the defendants as being leases assigned from Ross Wemp to Landmark by virtue of the Agreement.
[19] As indicated at paragraph 7, supra, it was agreed by counsel, at the end of the trial, that the assignment of the leases was not in issue.
Cheryl Guglielmello
[20] Cheryl Guglielmello had worked with Ross Wemp from October of 2002 and, when Landmark purchased the assets (leases) from Ross Wemp, she began to work for Landmark. Recently, Landmark changed its name to AutoOne Palladini. Thereafter, in March of 2013, Ms. Guglielmello left to accept a different position at Somerville National Leasing. At Ross Wemp, during the material times, she was the Business Manager responsible for accounts receivable ("AR") and for ensuring that there was insurance on all vehicles. She supervised the other employee in the AR department. She was responsible for ensuring that outstanding payments or payments that came back NSF were paid by the customer. In order to do this, she made collection calls to customers.
[21] Ms. Guglielmello testified that she was familiar with Mr. Blazys and had dealt with him personally for over three years. She testified that his business, an ice cream truck business, was seasonal, generally from April through September or October, and therefore, because he did not have revenue coming in during the winter months, he tended to pay the monthly leasing fees sporadically rather than regularly during the Fall-Winter months. She stated that she spoke to him frequently and on many occasions, looking for payment on the accounts to ensure that he would bring his accounts current, although she indicated that the Company attempted to be flexible and to work with him, given that his business was seasonal. She testified that she had made over 100 collection calls over the material time (five years) to the defendants as regards late payments.
[22] Ms. Guglielmello testified that she also met Ms. Blazys, who sometimes came to the office to make payments in 2007. Ms. Blazys denies that she ever went to the Landmark offices or made any payments or had anything to do with the Mercedes lease or any of the other leases.
[23] Ms. Guglielmello testified that the last payment made on the three leases was in July of 2007 and arrears began to accumulate thereafter. There appear to have been no defaults prior to July 2007, although there were many late or sporadic payments, as above- described. Landmark produced account statements from the last payments made by the defendants on their leases. As regards the accounting documentation, all Ross Wemp accounts had been maintained on computer, which business records were merged by the IT Department with the Landmark computer system at the time of the asset purchase by Landmark of Ross Wemp. Ms. Guglielmello testified that she contacted or attempted to contact Mr. Blazys on numerous occasions thereafter regarding the outstanding arrears.
[24] The computer and notes as regards communications with Mr. Blazys were produced in evidence (Exhibit 6). Ms. Guglielmello stated that the computer program automatically indicated date and time when a note was made in the system. The user column indicated who input the note. In the notes provided, there were 14 entries made by Ms. Guglielmello from November of 2006 through December 21, 2007. Ms. Guglielmello testified that she was not very good at making consistent computer entries each time she spoke with the customer, and those notes in evidence did not represent all of the contacts she had made over the years with the defendants as regards collections issues. She stated that, while the account number was for only one vehicle, she made all entries for the three vehicles in the same account, rather than switching back and forth. This is evident from entries from 2006 made by another employee. All entries relate to contacts with or attempts to contact Mr. Blazys for payment on the leases. While Mr. Blazys denied that Ms. Guglielmello had made hundreds of collection calls to him over the material times, and testified that he had only spoken with her three or four times over five years, her notes indicate otherwise. I accept Ms. Guglielmello’s testimony in this regard.
[25] Ms. Guglielmello testified that when she learned of the asset purchase and lease assignment in October of 2007, she subsequently spoke with Mr. Blazys in November regarding the outstanding accounts and also advised him of changes, the merger and the new Landmark address and new location. She advised him that the Mercedes should be delivered by lease end, January 1, 2008, to the new address. The evidence indicates that Mr. Blazys returned the Mercedes to the new Landmark location on January 10, 2008.
[26] Ms. Guglielmello testified that, when she contacted Mr. Blazys in November of 2007 regarding outstanding payments, Mr. Blazys advised her that the GMC ice cream truck was in a farmer's yard up north and they would never find it. She testified that he also indicated that the Dodge Ram was in his company compound and that the engine was being redone.
[27] Based on this conversation, Ms. Guglielmello went directly to her manager to advise her of the conversation regarding the leased vehicles, and the files were taken into the possession of the manager and forwarded to the legal department for action.
[28] By January of 2008, the vehicles had been put out to the bailiff for repossession. Although the vehicles could not be located for repossession, the bailiff fees had to be paid. As of January 31, 2008, Notices of Repossession for the three vehicles, prepared by the legal department, were sent to the defendants by both regular and registered mail. Pursuant to the Notices of Repossession for each of the vehicles, arrears in the amount of $3,861.15 were owing on the 1999 Mercedes, arrears in the amount of $4,573.33 and repossession fee of $500 were owing on the 2002 Dodge Ram, and arrears of $4,903.64 were owing on the 1994 GMC truck.
Ashley Spicer
[29] Ashley Spicer was the legal assistant in the legal department, and worked under the supervision of Craig Stewart, the legal department manager.
[30] Pursuant to the evidence of Ms. Spicer, the legal assistant who prepared the Notices of Repossession, which were thereafter reviewed, approved and signed by the legal department manager, Craig Stewart, the copies of the Notices of Repossession sent by certified mail were all returned, unclaimed. The Notices sent by regular mail were not returned. Mr. Blazys denies that any of the Notices were ever received by them, although he verified that the address to which they were sent was the home address of Mr. and Mrs. Blazys.
[31] Thereafter, Statements of Account were sent to the defendants on February 8, 2008. The Statement of Account for the 1999 Mercedes was in the amount of $5,913.15. The Statement of Account for the 2002 Dodge Ram was in the amount of $21,586.47 which was amended, by Ms. Guglielmello, during her testimony, to $20,864.90, due to an additional month's leasing fee having been charged in error. The Statement of Account for the 1994 GMC truck was in the amount of $28,999.64, which was subsequently amended, on the witness stand, by Ms. Guglielmello to $28,208.64, due to an additional month's leasing fee having been charged in error.
[32] Again, as with the Notices of Repossession, these Statements of Account were all mailed together by both regular and registered mail. Again, the registered letters were returned, unclaimed. Mr. Blazys denies ever having received the Statements of Account, which were, however, sent to his home address, which he confirmed to be correct.
[33] Final Demands for Payment were sent February 15, 2008, for the three vehicles, in the same amounts as indicated above.
[34] Again, these Final Demands for Payment regarding the three accounts were mailed together in one envelope by both regular and registered mail, and again the registered letters were returned, unclaimed. Mr. Blazys denies having received the Final Demands for Payment, which were, however, sent to his home address, which he confirmed to be correct.
[35] As with the Notices of Repossession, Ms. Spicer testified that she prepared all of the documents including the Statements of Account and Final Demands for Payment in draft, for review and approval by the manager of the legal department, Craig Stewart, who would then sign the documents before they were sent out. She identified the handwriting on all of the registered mail receipts in this case as being hers.
The Defendants’ Evidence
[36] On behalf of the defendants, both Amadeus and Luisa Blazys testified.
Luisa Blazys
[37] Ms. Blazys admitted that she was the principal driver of the Mercedes. However, she denied having anything to do with the leasing, financing or leasing payments of the Mercedes. She denied that the lease was in her name. She denied having signed any of the leases, and denied that the signatures on the first two leases for the Mercedes were hers, although the leases were clearly indicated to be in her name and her typewritten name appeared above the signing line. She admitted that she accompanied her husband when the Mercedes was returned to Landmark, but waited in the car while he returned the keys. She stated that she never went into the Landmark offices. She confirmed their residential address as that to which all notices were sent, but denied receiving any documentation from Landmark.
[38] It was apparent throughout her testimony that she was attempting to distance herself from any involvement with the leases, including the leases for the Mercedes, the first two of which were in her name alone. I found her evidence, in this regard, to be disingenuous and unconvincing. Where her evidence differs from that of the plaintiff or the documentation before this Court, I prefer the evidence of the plaintiff and do not accept her evidence, unless otherwise indicated.
Amadeus Blazys
[39] Amadeus Blazys testified that he was the principal of Mr. Twister at the material time. He also testified that his cousin, Roland Blazys, had been involved in the company at a later date, but could not indicate when that was. When shown the Corporate Report dated June 20, 2013, the officer and director, president and secretary-treasurer were indicated to be Roland Blazys, which he identified as his cousin.
[40] In this regard, I note that, in cross-examination, Mr. Blazys was asked about the decision of the Hamilton Licensing Tribunal dated July 6, 2011, after Hamilton declined to provide a license to Mr. Twister to permit it to operate in Hamilton. The decision indicates that a show cause hearing was held respecting the Refreshment Vehicle License for Mr. Twister due to concerns regarding the corporate organization of the company. The Corporate Profile indicated that the officer, president, secretary and treasurer of the organization was one "Roland Blazys". The Report of the hearing indicates that, based on an Agreed Statement of Facts between the City and Mr. Amadeus Roland Blazys, Hamilton's concerns were assuaged. The Report indicates that "the corporate information has been clarified; confirming that Amadeus Blazys and Roland Blazys are the same individual (Roland is Mr. Blazys middle name). When asked about the discrepancy between the Hamilton report and Mr. Blazys’ testimony on examination for discovery and at this trial, he stated that he had no answer for that.
[41] Mr. Blazys testified that he had leased vehicles from Ross Wemp since approximately 1990 or 1991. He testified that he always negotiated a low depreciated residual value in order to be able to profit at lease end by either purchasing the vehicle at the end of the lease or selling the vehicle for a higher price than this stated residual value.
[42] Mr. Blazys admitted to having entered into all three subject leases, but denied that the first two leases for the Mercedes were signed by himself or his wife. There was no issue as to the delivery to them of the Mercedes, or any of the vehicles.
[43] While he denied that there were any arrears outstanding on any of the vehicles, he did confirm the evidence of Ms. Guglielmello that he occasionally missed payments and would then make lump sum payments to bring the accounts current. He denied that there were longer stretches during his business’ off season where he did not make payments, which would later be caught up with large lump sums. He testified that he paid every couple of months, pursuant to "an agreement with the lessor". There was no evidence of any such agreement. He confirmed Ms. Guglielmello's evidence that he would often pay in cash, $7-$10,000, for which he was given receipts by the lessor, but indicated that he also paid by cheque. He had no evidence of any receipts for payments, nor of any cancelled cheques. When asked about receipts for the business vehicle, the GMC, he also indicated that he had no receipts, and was unable to indicate whether he had kept the receipts to provide to his accountant for the financial year ends. It was of note that he had produced no business documentation relevant to the rental of his vehicle for use in the business.
[44] He denied having received hundreds of calls from Ms. Guglielmello. He stated that he had no more than 3 to 4 during the entire material time. He stated that he avoided talking to her because he did not like her. While her testimony and her computer notes indicate that she made numerous collection calls to him, and left messages for him, he denied this and denied having any answering machine or voicemail for himself or his business.
[45] He denied ever having received any notice of the assignment of the leases to Landmark. He denied that any of the vehicles were in arrears and also denied that the Dodge Ram and the GMC truck were not returned. He was initially unsure when he had returned the Dodge Ram and the GMC truck, but subsequently testified that it was in the summer of 2007. This was inconsistent with the evidence he had given on examination for discovery. He stated that it was only upon seeing the evidence at trial that he recalled having returned the vehicles in the summer of 2007, prior to the end of the Mercedes lease. He was unable to advise as to the date of the return or to whom he rendered the keys. He advised that he had no documentation in this regard. He was initially unable to provide any detail as to how the vehicles were returned, but subsequently, after seeing and/or hearing the evidence at trial, was able to indicate that the vehicles were returned by him one at a time, with someone, he could not remember who, accompanying him there and back in another vehicle.
[46] He denied ever having stated to Ms. Guglielmello that the GMC truck was in a farmer's field and that she would never find it. He further denied ever having said that the Dodge Ram was in his compound being reworked.
[47] It is clear that he did return the Mercedes Benz on January 10, 2008, after the lease end, to the new Landmark business premises and not to the old Ross Wemp property. He testified that as regards the Mercedes, he had placed an advertisement for the sale of the Mercedes in the AutoTrader Magazine, and had received an offer to sell the vehicle for $15,000. He testified that he provided this information and coordinates of the interested third party to Landmark. He stated that thereafter, he learned from the interested third party that Landmark refused to sell the vehicle to the third party for $15,000, but rather sold the vehicle, wholesale, for $9,000, $800 under the stipulated depreciated residual value in the lease. He stated that this should not have happened, that Landmark should have sold the vehicle to his third party purchaser for $15,000, and that he owes Landmark nothing. There is no evidence that the final sale price of $9,000, which was very close to the depreciated value agreed to by the parties, was not commercially reasonable. In cross-examination he was unable to indicate who the third party was. He did not have any name or coordinates for this person. Further, he had no evidence of an advertisement placed in AutoTrader.
The Credibility of the Parties
[48] As recognized by both counsel in this trial, this is a fact-based case, with credibility as a significant issue. The evidence on most material points is significantly divergent and credibility thus plays a large factor in the evidence given by both parties
[49] In assessing the credibility of the witnesses in this case, I am guided by the observations made by D. Brown J. in Atlantic Financial Corp. v. Henderson et al, [2007] 15230 (SCJ), as follows:
In deciding between these two diametrically opposed positions, I am guided by the observations made about assessing the credibility of witnesses by O’Halloran, J.A. in Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) where he stated, at page 357:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
[50] Additional factors to take into account when assessing a witness’ credibility include the presence or absence of evidence contradicting a witness’ statements and corroborative evidence: Sopinka and Lederman, the Law of Evidence in Civil Cases (1974), pp. 527-8.
[51] The defendants essentially denied any liability to the plaintiffs, and denied a significant amount of the seminal evidence of the plaintiffs. The defendants were unable to produce evidence of business records to support their version of the facts. Mr. Blazys was unable to provide details with respect to seminal events in the testimony, including when exactly the GMC and Dodge Ram vehicles were returned, nor to recall any details or to provide any documentary evidence as regards the third party purchaser for the Mercedes. His evidence on certain relevant testimony was challenged with prior inconsistent statements given on examination for discovery. His evidence, as regards the Corporate Profile and indication of a cousin, Roland, was unsatisfactory.
[52] I find the defendant’s evidence to be inconsistent and in some instances contradictory, and many of his answers to be self-serving. In cross-examination, when confronted with evidence which was not consistent with his version of the facts, he became vague or evasive. His evidence regarding the vehicles, leases, and payments thereon often did not accord with business sense, particularly from someone who had significant business experience, as did the defendant. I have also considered the improbability of his version of the facts as regards the return of the vehicles and his knowledge of the assignments of leases, which does not accord with common sense or with his business background, taking into consideration his experience as a businessman. I have further considered his failure to produce sufficient relevant and material documentation related to the facts in issue, and to his company’s rental of the truck.
[53] In contrast, the plaintiff’s evidence was forthright, direct, clear and concise in both examination-in-chief and in cross-examination. Based on all the foregoing, where there are discrepancies in the evidence given by the plaintiff and that given by the defendant, Mr. Blazys, I prefer the evidence of the plaintiff, unless otherwise indicated.
The Issues
[54] The issues to be determined by this Court are as follows:
Whether notice was given of the assignment of the leases to the defendants;
Whether the Dodge Ram and the GMC truck were returned by the defendants to the plaintiff;
Whether there are arrears outstanding on any or all of the subject vehicles;
If so, what amounts are outstanding and to be paid
Who is responsible for payment of any arrears owing.
[55] While the defendants argue that they never received notice of assignment of the leases, the evidence of Ms. Guglielmello was that, shortly after she learned herself of the assignment of leases, she gave verbal notice to Mr. Blazys, in November of 2007 of the change from Ross Wemp to Landmark, and provided the new address and coordinates, and the new location of the Landmark business premises and that Mr. Blazys dropped off the Mercedes to the new Landmark premises in January of 2008. There was evidence that correspondence was sent to all clients in the form of a general letter to "Dear Lessee"" in January 2008 advising of the asset purchase and the fact that a new ownership/vehicle permit would be forwarded to the client as soon as the transfer was complete and that vehicle insurance had to be changed to reflect the change. This correspondence was provided by way of an undertaking to the transcript of Craig Stewart. It was not entered into evidence at trial. It appears, in any event, to have been sent after the fact, namely on January 2, 2008. There was no evidence to indicate that it was sent to or received by the defendants.
[56] I am satisfied that there was a valid assignment of the subject leases from Ross Wemp to Landmark as evidenced by the General Conveyance and Assignment of Leases Agreement, Schedule A, Leases which clearly demonstrates that the assignee, Landmark, obtained the benefit of the choses in action, the subject leases. Further, I am satisfied that the debtors, the defendants, had notice of the assignment, such that Landmark obtained valid and enforceable contractual rights as regards the leases as against the defendants.
[57] It is clear from the evidence that Mr. Blazys was aware of a change in the leasing arrangements and location and returned the vehicle to the new Landmark premises. The defendant argues that without proper notice of assignment, the leases are not enforceable. I am satisfied that Mr. Blazys was notified of the transfer, was aware of the new company premises and that the action should not be defeated on this basis.
[58] While Mr. Blazys testified that he had returned both vehicles in the summer of 2007, there is no evidence to support this, and it is categorically denied by the plaintiff. He had no documentary evidence of return of the vehicles, could not remember to whom he had provided the keys, whether that person was male or female, could not indicate the actual date or month of the return. He could not remember who drove with him to return the vehicles. There is no documentary evidence to support this suggestion, but only business records from Landmark to the contrary. There is no explanation as to why he would have returned these vehicles prior to the end of the lease which, in the case of the Dodge Ram was March 1, 2008 and, for the GMC, was July 1, 2009. Such conduct does not accord with general business practice nor with common sense.
[59] The evidence of Ms. Guglielmello for Landmark was that the vehicles were never returned, that she would have been apprised if they had been, given that she was responsible for accounts receivable. Mr. Blazys testimony at trial is that he delivered the vehicles during the summer of 2007. However, Ms. Guglielmello testified that if the suggestion is that they were returned after the move, she remained as the only person at Ross Wemp when the business was closed and all leases transferred to Landmark. She testified that she had closed the business and that no vehicles were returned during that time, until the business was closed. She also indicated that she had given her name and her coordinates at Landmark to the new business that occupied the old Ross Wemp premises, that when any mail destined for Landmark was delivered to the old address after the move to the new Landmark premises, they would call and either she went to the old premises to pick up the mail, or the new business which thereafter occupied the premises would personally deliver the mail to her. She testified that no leased vehicles were ever delivered to the old premises after the move. Given that Mr. Blazys was aware of the new company premises and, in fact, delivered the new Mercedes to that new location, it is improbable that he would have delivered the other two leased vehicles to the old premises in any event.
[60] Where there are differences in the testimony of the two parties, I prefer the evidence of Ms. Guglielmello to Mr. Blazys. Her evidence was given in a direct and forthright manner. She is no longer employed with Landmark and has no personal interest in this lawsuit. On the other hand, Mr. Blazys had no documentation to support his position, his evidence at trial conflicted with that given on examination for discovery. He had been unable to remember the dates of the vehicle return, or any details regarding the return, until the trial when he said that, after having seen the Mercedes productions as regards his return of the Mercedes vehicle, he remembered that he had returned the two other vehicles prior to January of 2008, and indeed in the summer of 2007, prior to the assignment of the leases. As indicated above, this conflicted with the evidence given at his examination for discovery. I find his evidence, based on the foregoing, and based on my comments set forth above at paragraphs 49-53, to be unreliable.
[61] I prefer the evidence of Landmark, and find that the vehicles were not returned by Mr. Blazys.
[62] I accept the evidence of Landmark as regards the arrears outstanding on all vehicles. These amounts were amended as regards the Dodge Ram and the GMC truck. I note that the outstanding arrears should also reflect the actual wholesale value for which the Mercedes was sold, when the final accounting as regards the outstanding amount was prepared. I find that the arrears are owing and payable by the defendants to the plaintiff, as follows: as regards the 1999 Mercury, the lease was in the name of Luisa Blazys, and was, in the last lease dated January 24, 2005, amended to be in the name of Luisa Blazys and/or Amadeus Blazys. While the final lease, which is the operable lease, was in the names of both Luisa Blazys A/O Amadeus Blazys , it was signed by Mr. Blazys. I find that both parties are liable for payment of the outstanding arrears owing on that lease.
[63] The lease as regards the Dodge Ram was in the name of Amadeus Blazys and was admittedly signed by him. He is liable for payment of the outstanding arrears to Landmark.
[64] As regards the lease of the business vehicle, the GMC ice cream truck, the lease was in the name of Mr. Twister, signed by its principal, Amadeus Blazys. The outstanding arrears are owed by Mr. Twister.
Costs
[65] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.
Carole J. Brown J.
Released: March 26, 2014
COURT FILE NO.: 08-CV-350836PD3
DATE: 20140326
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Landmark Vehicle Leasing Corporation
Plaintiff
– and –
Mister Twister Inc., Amadeus Blazys a.k.a. Amadeus Amo Blazys a.k.a. Amadeus A. Blazys and Luisa M. Blazys a.k.a. Luisa Blazys
Defendant
REASONS FOR DECISION
Carole J. Brown J.
Released: March 26, 2014