Court File and Parties

CITATION: Baker v. J.P. Graci & Associates Ltd., 2015 ONSC 1733

COURT FILE NO.: 78/13

DATE: March 31, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Patricia Joanne Baker, plaintiff

AND:

J.P. Graci & Associates Ltd. as Trustee of the Estate of Nile Edward Baker, a bankrupt, defendant

BEFORE: MITROW J.

COUNSEL: Michael Odumodu for the plaintiff Dennis Touesnard for the defendant

HEARD: November 20, 2014

ENDORSEMENT

INTRODUCTION

[1] The defendant brings a motion for summary judgment pursuant to R. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”) dismissing the action commenced by the plaintiff on the basis that the applicable limitation period had expired at the time of the issuance of the statement of claim.

[2] For reasons that follow, the defendant’s motion is dismissed.

BACKGROUND

[3] The plaintiff is married to Nile Edward Baker (“Mr. Baker”).

[4] Mr. Baker deposes that his company, Glenile Electric, was faced with financial troubles in 2009 as a result of the fraud of one of its employees, for which that employee was subsequently convicted.

[5] As a result of the financial troubles, Mr. Baker deposes that he sought the advice of professionals. He asserts his accountant set up a meeting with Mr. Graci, the principal of the defendant, in January 2010.

[6] There is no dispute that, soon thereafter, the matrimonial home owned by Mr. Baker and the plaintiff was transferred into the name of the plaintiff for no consideration.

[7] Mr. Baker and the plaintiff allege they jointly owned a boat, a 2004 “Four Winns Vista 298” (“the subject boat”). Although there is no admission made by the defendant that the subject boat was jointly-owned by the plaintiff and Mr. Baker, there is significant affidavit evidence from both the plaintiff and Mr. Baker, corroborated by various documents, that the purchase of the subject boat for a little over $144,000 in 2004, was financed by increasing the mortgage on the jointly-owned home, and by a trade-in allowance of $45,500, being another boat owned jointly by Mr. Baker and the plaintiff at that time.

[8] The plaintiff and Mr. Baker agree, in relation to the subject boat, that only Mr. Baker’s name was on the purchase contract; however, both Mr. Baker and the plaintiff explain that there is no formal registration of ownership of a boat; they both depose that the subject boat came from joint funds and that they both regarded themselves as being equitable owners of the boat in equal shares and that they both used it together as a couple. They also depose that the previous boats owned by them, including the trade-in, were also owned by them jointly.

[9] In her statement of claim, the plaintiff pleads that “legal” title to the subject boat was in Mr. Baker’s name and that the plaintiff’s interest in the subject boat was “property subject to a trust.”

[10] The subject boat is at the centre of this court case.

[11] Mr. Baker claims he received professional advice in early 2010 to “get everything out of my name.”

[12] There is no dispute that at or about the time of the transfer of the matrimonial home to the plaintiff’s sole name, that Mr. Baker signed a written document dated January 25, 2010 wherein he declared that he gifted the subject boat to his son, Dan Baker.

[13] In April 2010, Mr. Baker made an assignment in bankruptcy. The defendant was the trustee in bankruptcy. Mr. Baker did not list the subject boat as an asset in his statement of affairs.

[14] The affidavit in support of the defendant’s motion is signed by Joseph Paul Graci (“Mr. Graci”), who is the president of the defendant and a licensed trustee in bankruptcy.

[15] Mr. Graci deposes that in May 2011 he was contacted by the official receiver from the Office of the Superintendent of Bankruptcy, and received information that Mr. Baker owned the subject boat and that it was maintained at a marina in Hagersville, Ontario.

[16] Mr. Graci’s evidence is that after contacting the marina, he learned that the subject boat was in the name of a Mr. Dan Baker, and that it had been formerly owned by Mr. Baker. It is Mr. Graci’s evidence that he then contacted Mr. Baker, who confirmed that he had been the owner of the boat and that he had gifted it to his son, Dan Baker, for no consideration. Mr. Graci advised Mr. Baker that he was required to take possession of the subject boat in his capacity as trustee and sell it, with the proceeds to go to the creditors.

[17] According to Mr. Graci, Mr. Baker did not object to this proposed course of action, nor did Mr. Baker even indicate that anyone else, other than himself, had an interest in the subject boat. Mr. Graci further indicated that Mr. Baker agreed that he was the subject boat’s real owner.

[18] Mr. Baker’s only request, according to Mr. Graci, was for an opportunity to remove his personal belongings from the boat, a request that Mr. Graci states was accommodated when he arranged for himself and Mr. Baker to attend together at the marina.

[19] At all material times it was Mr. Baker, and not the plaintiff, who was dealing with Mr. Graci. Mr. Baker’s evidence as to the discussions he had with Mr. Graci regarding the ownership of the subject boat conflicts sharply with Mr. Graci’s evidence.

[20] Mr. Baker denies that he told Mr. Graci that he was the sole owner; Mr. Baker deposes he explicitly told Mr. Graci that the subject boat was owned jointly with the plaintiff; it is Mr. Baker’s evidence that Mr. Graci said that did not matter, and that Mr. Graci left Mr. Baker with the impression that he had the lawful authority to take possession of the subject boat notwithstanding joint ownership.

[21] There is no dispute that the subject boat was sold by the defendant mid-June 2011 (either June 14 or June 15) for $65,000, with the net proceeds of sale being $52,050.88 after payment of all outstanding amounts owing to the marina.

[22] Mr. Baker deposes he first learned of the sale of the subject boat during a counselling session with Mr. Graci in August 2011; that he specifically told Mr. Graci that the plaintiff was a joint owner and that they had to increase their mortgage to pay for the subject boat. However, according to Mr. Baker, Mr. Graci indicated “that the bankruptcy supersedes it.”

[23] Mr. Baker further deposes that he raised the issue of the plaintiff’s share of the sale proceeds from August 2011 onwards “almost every time I spoke with Mr. Graci.” Mr. Baker appends, as an exhibit, a letter he sent to the defendant dated December 28, 2011, that refers to the plaintiff having contributed to the purchase of the subject boat and being entitled to have a share in the sale proceeds.

[24] The disparate nature of the evidence continues with Mr. Graci’s evidence that it was not until the plaintiff filed an affidavit in November 2012, in response to an application to set aside the transfer of the matrimonial home to the plaintiff for no consideration, that the plaintiff alleged for the first time that the subject boat was purchased from joint funds and that she had an equitable interest in the subject boat.

THE NATURE OF THE CLAIM

[25] The plaintiff issued a statement of claim on May 30, 2013, seeking, inter alia: (a) a payment in the amount of $40,000 for conversion and negligence; and (b) a declaration that she was the beneficial owner of a one-half interest in the subject boat and of the proceeds of sale thereof by operation of the common law, resulting trust, constructive trust and/or “the intention of the parties.”

[26] It is common ground that the plaintiff had to bring a motion for leave, pursuant to s. 215 of the Bankruptcy and Insolvency Act, to commence proceedings against the trustee for payment of the proceeds of the sale of the subject boat. That motion came on before the deputy registrar in bankruptcy and on May 15, 2013, he released a decision that he was satisfied that the evidence filed by the applicant is sufficient to meet the threshold test and that the plaintiff’s motion is allowed.

[27] The formal order stated that Patricia Joanne Baker is granted leave to commence proceedings for the payment of proceeds from the sale of a boat against the respondent, J.P. Graci & Associates Ltd.

[28] By order of the deputy registrar in bankruptcy dated October 2, 2013, the defendant was ordered to pay to the plaintiff her costs of the motion fixed in the sum of $2,500 forthwith.

[29] At the time of the argument of the motion for summary judgment, these costs were alleged by the plaintiff not to have been paid and, when the court asked about this allegation, the defendant’s counsel indicated he would speak to the defendant to ensure that the costs were paid.

[30] Further, there is no dispute between the parties that this claim is governed by the simplified procedure in R. 76 of the Rules.

[31] The plaintiff’s claim is founded in conversion and negligence. The conversion is based on the allegations of the plaintiff that the defendant wrongfully deprived the plaintiff of her lawful interest in the subject boat. The particulars of the negligence claim, as pleaded, are somewhat sparse, and were supplemented on the plaintiff’s examination for discovery, and include: that the defendant conducted an improvident sale by selling the subject boat at less than fair market value; that the defendant paid excessive fees and commission; that the defendant failed to make inquiries about the ownership of the subject boat, failed to give the plaintiff her share of the proceeds, and failed to take any necessary steps to ascertain ownership when told about the plaintiff’s interest in the subject boat.

THE LIMITATION PERIOD DEFENCE

[32] The plaintiff relies on the following sections of the Limitations Act, 2002, S.O. 2002, Sch. B:

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[33] The defendant’s affidavit evidence primarily was focussed on the date that the cause of action arose. The defendant relies substantially on the plaintiff’s examination for discovery. The defendant submits that the plaintiff’s testimony on her examination for discovery supports the following findings of fact (see paragraph 11 of the defendant’s affidavit):

a) that the plaintiff knew or at least believed that she was a one-half owner of the subject boat at least as early as January 2010;

b) that the plaintiff became aware at some time in 2010 that the subject boat had been gifted from her husband to her son;

c) that the plaintiff did not object to that gift because she would still have access to the subject boat;

d) that in May 2011, the plaintiff was told by her husband, Mr. Baker, that the defendant was going to take possession of the subject boat and that her husband needed to remove their personal belongings from the subject boat;

e) that the defendant took possession of the subject boat prior to May 24, 2011;

f) that once the defendant took possession of the subject boat, that the plaintiff would no longer have any access to it;

g) that the defendant was likely to sell the subject boat following taking possession of it;

h) that the plaintiff did not contact the defendant to object to it taking the subject boat; and

i) that the plaintiff did not make any inquiries with the defendant about whether or not the subject boat had been sold and what happened with the proceeds of sale.

[34] The defendant argues that the conversion would have occurred when the defendant took possession of the subject boat, which would have been prior to May 24, 2011, based on the plaintiff’s evidence at her examination for discovery.

[35] The defendant submits, in reliance on the plaintiff’s admissions as follows (per paragraph 23 of the defendant’s factum):

a) that the plaintiff knew or believed she was a one-half owner of the subject boat as early as January 2010;

b) that the plaintiff was told in May 2011 that the defendant was going to take possession of the subject boat;

c) that the defendant took possession of the subject boat sometime prior to May 24, 2011;

d) that the plaintiff understood at that time that the defendant was taking possession of the subject boat for the purpose of selling it;

e) that once the defendant took possession of the subject boat, that the plaintiff would no longer have any access to it.

[36] The defendant argues, applying sections 5(1) and 5(2) of the Limitations Act, 2002, that the alleged conversion would have occurred on the day that the defendant took possession of the boat, being “sometime prior to May 24, 2011” and that the statement of claim was issued more than two years later, on May 30, 2013.

[37] The defendant further submits that the limitation period in negligence is the same as the limitation period for conversion, namely, the day on which the subject boat was taken by the trustee.

[38] Accordingly, the defendant’s motion for judgment on the limitation period, according to the defendant, hinges on the date that the defendant took possession of the subject boat.

THE TEST ON A MOTION FOR SUMMARY JUDGMENT PURSUANT TO R. 20 OF THE RULES

[39] The position of the defendant is that there is no triable issue regarding the allegation that the statement of claim was issued after the expiry of the limitation period. Pursuant to R. 20.04(2):

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[40] Rule 20.04(2.1) gives the court expanded powers in dealing with a motion for summary judgment as follows:

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[41] The Supreme Court of Canada has interpreted subrule (2.1). The court held that a trial is not required if a summary judgment motion can “achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial”; and that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”: Hryniak v. Mauldin, [2014] SCC 7 (S.C.C.) at paras. 4-5.

DISCUSSION

[42] Assuming, for the purpose of the discussion that follows, that the limitation period does start with the day that the defendant took possession of the subject boat, I find that that submission has numerous obstacles.

[43] In relation to this argument, it becomes necessary to determine the date that the defendant took possession of the subject boat. In all of its submissions, the defendant, I find, sidesteps the evidence of its own principal, Mr. Graci, that he took possession of the subject boat on May 30, 2011.

[44] During his examination for discovery, Mr. Graci was asked to describe how he went about taking possession of the subject boat. He testified that he attended at the marina, served the marina with a copy of the assignment into bankruptcy, and the defendant’s appointment. Mr. Graci added that Mr. Baker, and his son, were already there, packing up their belongings from the subject boat.

[45] Mr. Graci also took pictures of the subject boat, made sure that the subject boat was secure and that the marina would not release it.

[46] When asked what day he attended at the marina, Mr. Graci testified that he did not recall the exact day (Q. 289).

[47] Mr. Graci was asked if there is anything “… in your records that might help nail down the date?”; he replied (Q. 293): “Yeah, probably can find the, the date.”

[48] Mr. Touesnard then characterized this as a “best efforts” undertaking to advise as to the date that Mr. Graci first attended the marina. Based on the transcript, I find that Mr. Graci had agreed to provide the date that he took possession of the subject boat.

[49] The defendant takes no issue in relation to the excerpts of Mr. Graci’s undertakings and responses thereto, attached as an exhibit to the plaintiff’s affidavit sworn August 27, 2014.

[50] In relation to the undertaking discussed above, the defendant’s response was that: “The Defendant attended at the marina on May 18, 2011 to serve the Notice of Bankruptcy. The Defendant returned to the marina on May 30, 2011 to take possession of the boat.”

[51] Further, there is no dispute that the plaintiff never had any contact or communication with Mr. Graci; all of the plaintiff’s knowledge about the possession of the subject boat came from her husband, Mr. Baker. When asked (Q. 139) whether she knew when “they came for the boat,” the plaintiff responded “around May 24” of 2011.

[52] The extent of the plaintiff’s second-hand understanding as to when the defendant allegedly took possession of the subject boat is captured in the following exchange from questions 166 to 176:

166. Q. Do you know what date in May it first came to your attention that the Trustee had taken possession, or control, over the boat? A. I know it was before May 24.

167. Q. Of 2011? A. Yes.

168. Q. Did you take any legal steps to either stop the Trustee from selling the boat, or to sue the Trustee for an interest in a boat, other than the statement of claim? A. No.

169. Q. And, the application your Counsel brought for leave to bring the statement of claim? A. Right.

170. Q. So, how did you become aware that the Trustee had taken possession of the boat sometime before May 24th of 2011? A. My husband told me that he had gotten a call that he had to get our personal stuff out of the boat.

171. Q. When did, do you remember when he told you that? A. I think it was the day before he had to go.

172. Q. Okay. And, and that was sometime before, it’s the May long weekend is your point of reference, right? A. It’s, yeah. Yeah.

173. Q. So, it’s sometime in May before the May long weekend of 2011? A. Yes.

174. Q. He told you the Trustee called him? A. Yes.

175. Q. And, did he tell you what the Trustee said? A. Not the exact words, no.

176. Q. Okay. What did he tell you about his call with the Trustee? A. Well, all my husband told me was that he had to, the Trustee was coming for the boat, and we had to get our personal stuff out.

[53] The plaintiff was using May 24, 2011 as a reference point because it was the May long weekend. However, I find that the plaintiff’s evidence is clear that she equated the trustee “taking possession or control” of the subject boat with her husband receiving a call from trustee to remove their personal belongings. (See in particular, Q. 170.) There is nothing in the plaintiff’s evidence to suggest that she had any actual knowledge as to when the defendant actually attended to take possession of the subject boat.

[54] Also, it appears from Mr. Graci’s answer to his undertakings that he attended at the marina twice. The answer to the undertaking states that he served the notice of bankruptcy on May 18, 2011. However, in his examination for discovery, Mr. Graci is clear that when he served the marina with a copy of the assignment in bankruptcy and his appointment that “… Nile Baker and his son were already there. They were packing up the, their personal belongings from the, from the boat” (Q. 289).

[55] This evidence is also consistent with the affidavit evidence of the plaintiff that it was around “mid-May” that her husband told her that the trustee had indicated to him that he needed to take possession of the subject boat. Further, Mr. Baker deposes that he received a call from the trustee around “mid-May,” being just prior to May 24 weekend, advising that he had to take possession of the boat.

[56] Mr. Graci deposes that he arranged for “Mr. Baker and I” to attend at the marina to remove his personal belongings. I find on the evidence that Mr. Baker attended at the marina and retrieved his personal belongings from the subject boat on May 18, 2011, and that he had some assistance from his son. Mr. Graci had testified on his examination for discovery that Mr. Baker’s son was there with Mr. Baker when they were retrieving their belongings from the subject boat.

[57] Mr. Graci would be the person most knowledgeable about the exact day that the defendant took possession of the subject boat. I can conceive of no plausible reason to reject the defendant’s response to its own undertaking that the subject boat was taken into possession by the defendant on May 30, 2011. The argument that the defendant stated it took possession of the subject boat on May 30, 2011 was raised by the plaintiff in her materials – yet the defendant appeared to fixate on the plaintiff’s examination for discovery, ignoring its own evidence given via an answer to an undertaking.

[58] Although Mr. Graci’s testimony on his examination for discovery initially suggested that his attendance at the marina, serving the marina with a copy of the assignment of bankruptcy, taking possession of the subject boat, and Mr. Baker and his son cleaning out their personal belongings all occurred on the same day, it is apparent, and I find as a fact, that Mr. Graci attended the marina on May 18, 2011 at which time a copy of the assignment into bankruptcy and the trustee’s appointment were served on the marina. Also, on this same date, Mr. Baker and his son were clearing out their personal belongings (this date being approximately three days after Mr. Baker was contacted by Mr. Graci in “mid-May”). I find as a fact that Mr. Graci, later, returned to the marina to take possession of the subject boat on May 30, 2011.

[59] As a result of the above finding of fact, the defendant’s best case scenario is that the proceeding was commenced on the second anniversary of the day that the claim was discovered, the latter being May 30, 2011 when the defendant took possession of the subject boat.

[60] Section 4 of the Limitations Act, 2002 provides that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered” (my emphasis). The first day after (my emphasis) the second anniversary is May 31, 2013; however, the claim was commenced before May 31, 2013, specifically May 30, 2013. Hence, the defendant’s limitation defence fails even assuming the defendant’s best case scenario.

[61] Also, it is critical to note that the evidentiary record does not contain any evidence to support a finding that the plaintiff was aware that the defendant had taken possession of the subject boat on May 30, 2011. The evidence is clear that it was not until a number of months later that the plaintiff and Mr. Baker became aware of what had happened to the subject boat, including the fact that it was sold in mid-June 2011.

[62] I also deal briefly with the defendant’s analysis that the limitation period starts to run when the defendant took possession of the subject boat.

[63] I agree with the plaintiff’s submissions, at least in relation to conversion, that the alleged conversion occurred not on the day that the defendant took possession of the subject boat but, rather, at the earliest, the date that the defendant sold the subject boat. Also, it may be open to the plaintiff to argue that the limitation period for conversion would not start to run until the plaintiff had notice of the sale.

[64] The evidence is clear that the plaintiff, and also her husband, Mr. Baker, were in fact content with the subject boat being sold, but on the understanding that half of the sale proceeds would be paid by the trustee to the plaintiff for her alleged 50% share of the subject boat.

[65] The plaintiff argues that s. 16(3) of the Bankruptcy and Insolvency Act obligates a trustee to take possession of a bankrupt’s property. I find that there is some merit to this argument. Accordingly, it would have been reasonable for the plaintiff not to regard the taking of possession as an act of conversion. On a practical basis, the trustee was securing possession to ensure that Mr. Baker’s interest in the subject boat could be realized. Simple possession in these circumstances would not constitute an unequivocal act of conversion against the plaintiff.

[66] The tort of conversion involves wrongful interference with the goods of another, such as taking, using or destroying these goods in a manner inconsistent with the owner’s right of possession: Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, 1996 149 (SCC), [1996] 3 S.C.R. 727 (S.C.C.) at para. 31.

[67] In Clow v. Gershman Transport International Ltd., [2000] A.J. 637 (Alta. Q.B.), the court cited a decision of the Federal Court of Appeal, 384238 Ontario Ltd. v. Canada, 1983 5076 (FCA), [1983] 8 D.L.R. (4th) 676, where it was found that the actions of a defendant, who had wrongfully seized the plaintiff’s goods and retained them for a period of three days, did not constitute conversion. It was held that “it is only where there has been some use made of goods taken by a defendant or some other dealing with them by him, that a conversion occurs" (see para. 16, Clow).

[68] In the case at bar, and on the balance of probabilities, the evidence does not support a conclusion that the conversion occurred when the trustee took possession of the subject boat. The plaintiff, and also Mr. Baker, were clearly expecting the trustee to sell the boat, and they both viewed the alleged conversion as occurring at the time when the boat was sold and when the trustee failed to remit 50% of the sale proceeds to the plaintiff.

[69] I do not see the decision relied on by the defendant, Musson v. Memorial University of Newfoundland, 2002 CarswellOnt 629 (S.C.J.) at para. 89, as to when the conversion occurred on the facts of that case, as assisting the defendant, given the facts in the case at bar.

CONCLUSION

[70] The defendant was incorrect in its submission that the subject boat was taken into possession by the defendant prior to May 24, 2011.

[71] Moreover, a finding of fact was made that the defendant took possession of the subject boat on May 30, 2011, and that the statement of claim, being issued on May 30, 2013, was within the limitation period, although marginally so, and this was assuming that the defendant was correct that the limitation period began to run from the date the subject boat was taken into possession.

[72] In the alternative, I would not agree, on the facts, that the limitation period would run from May 30, 2011, in any event, but rather it would start to run on a date that is after the date of issuance of the statement of claim.

[73] Given the defendant’s position that the commencement of the limitation period was the same for both the conversion claim and the negligence claim, it is not necessary to discuss whether there are different limitation periods for those claims.

[74] Accordingly, the defendant’s motion for summary judgment fails.

[75] Where a court refuses summary judgment, R. 20.05(2) sets out a number of directions the court may impose in moving the case towards trial.

[76] The issue of the limitation period defence was a discrete single issue. I have considered the Supreme Court of Canada’s direction in Hryniak (at para. 78) that, where a motion judge dismisses a motion for summary judgment, in the absence of a compelling reason to the contrary, the judge should seize himself or herself of the matter as the trial judge. In the case at bar, I find that the facts are not complex. There are already efficiencies given the streamlined procedure in R. 76 where evidence in-chief may go in by affidavit, with time limits on cross-examination. In my view, it would be best for me to direct that I hear the pre-trial in this case.

[77] Given that I am not scheduled to sit in Woodstock this year, the order below addresses the scheduling of a settlement conference.

[78] In the case at bar, it was not necessary to deal with the significant conflicting evidence as to whether the defendant was advised, or had knowledge of, the plaintiff’s alleged interest in the subject boat; nor was it necessary to determine if the plaintiff had any ownership interest in the subject boat. Those matters are to be dealt with by the trial judge. Accordingly, I am not prepared to make any other findings of fact, as urged by the plaintiff. I find that, on the remaining issues, there is a conflict of evidence, and that it is necessary to make findings of fact by assessing the credibility of witnesses after trial. Accordingly, in conjunction with R. 20.05(2) and R. 76, the order below sets out a number of conditions for the parties to follow in bringing this action to a conclusion.

ORDER

[79] For reasons set out above, an order shall issue as follows:

1. The defendant’s motion for summary judgment is dismissed;

2. A finding of fact is made that the defendant took possession of a boat, a 2004 “Four Winns Vista 298” (“the subject boat”) on May 30, 2011;

3. The issues for trial are as follows:

a) What ownership interest, if any, does the plaintiff have in the subject boat?

b) Is the defendant liable to the plaintiff in respect of the defendant’s alleged conversion of the subject boat?;

c) Is the defendant liable to the plaintiff in negligence as a result of the defendant taking possession of the subject boat and thereafter selling it and failing to pay to the plaintiff any share of the net sale proceeds?;

d) If the defendant is liable to the plaintiff in either or both of the above circumstances, what are the damages?

4. All the evidence in-chief of the plaintiff and the defendant, and their respective witnesses at trial shall be via affidavit, and the deponents of all the affidavits shall attend at trial for cross-examination.

5. At trial, the parties may elect to rely on their existing affidavits filed on the summary judgment motion;

6. If the plaintiff has not already done so, the plaintiff shall set the action down for trial in accordance with R. 76.09(1) within 30 days of the date of this order by serving and filing a notice of readiness for a pre-trial conference;

7. The registrar shall serve the notice of pre-trial conference as required by R. 76.10(1), and the pre-trial shall be scheduled before me either in London, if both parties agree and their counsel agree, or failing agreement of both parties and counsel, the pre-trial shall be scheduled before me in Woodstock on a date approved in advance by me. The plaintiff and Mr. Graci shall be present at the pre-trial.

8. In relation to the materials to be filed before the pre-trial conference, the parties shall comply with R. 70.10(4) and, in addition, each party shall also file a statement setting out what material facts are not in dispute;

9. At least 14 days prior to the pre-trial, each party shall serve the other with a copy of an affidavit from each witness that that party intends to call at trial containing the witness’ evidence in-chief;

10. If the parties are unable to agree on costs of the motion for summary judgment, then the parties shall forward their written submissions to the trial coordinator in Woodstock. The plaintiff shall forward her submissions within 14 days of the date of this order, the defendant shall forward its costs submissions within 14 days thereafter and the reply, if any, shall be forwarded by the plaintiff within 7 days thereafter. The costs submissions shall not exceed three typed pages, double spaced, in addition to any authorities, time dockets and offers to settle. The reply submissions, if any, are limited to two typed pages.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: March 31, 2015