CITATION: Kiskadee Ventures v. 2164017 Ontario Ltd, 2015 ONSC 3877
COURT FILE NO.: CV-11-433421
DATE: 20150616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KISKADEE VENTURES LIMITED
Plaintiff
– and –
2164017 ONTARIO LTD., PAL/MAX PROPERTY MANAGEMENT INC. AND METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 870
Defendants
Jeffrey A.L. Kriwetz, for the Plaintiff
Mark Terence Wong, for the Defendant, 2164017 Ontario Ltd.
Victor Galleguillos, for the Defendant, Pal/Max Property Management Inc. and Metropolitan Toronto Condominium Corporation No. 870
HEARD: June 8, 9, 10, 11, 12, & 15, 2015
WRIGHT, J.
REASONS FOR JUDGMENT
Introduction
[1] On December 11, 2010, the plaintiff claims to have incurred business losses in excess of $80,000.00 when their Bell Canada communication service line was cut or disrupted because of the actions of the defendant, 2164017 Ontario Ltd.
[2] The trial of this matter took 6 days to complete.
[3] The plaintiff relied on the evidence of two witnesses:
Latchman Narine, (Kiskadee Owner)
David Hay (Bell Canada)
[4] The defendant relied on the evidence of two witnesses:
Song Yang (2164017 Ontario Ltd.)
Ge Hong Su
[5] Both parties filed document briefs.
[6] This is my judgment.
Overview
[7] I will first give a very brief, overview of the evidence. I will further develop the evidence when necessary in my analysis.
[8] Both parties carried on business and owned units in the same commercial building located at 130 Dynamic Drive in Scarborough. Kiskadee owned units #13, 14, 15 and 16. 2164017 Ontario Ltd. owned unit #11.
[9] There is no dispute that in 2009, 2164017 Ontario Ltd. had a trench dug in their unit to address a drainage problem. In the course of digging the trench some hydro and telephone lines were accidently cut. This resulted in a disruption of service to 2164017 Ontario Ltd.’s unit and to another unit in the building.
[10] There is no dispute that all service was restored in a timely fashion.
[11] There is no dispute that the trench was left open until December 2010.
[12] There is also no dispute that in December 2010, 2164017 Ontario Ltd. made arrangements to have the trench filled in with concrete.
[13] The plaintiff takes the position that on the day that the trench was being filled in, they lost service to their telephone, fax and email.
[14] The plaintiff takes the position that this happened on December 11, 2010.
[15] The defendant take the position that this happened on December 18, 2010.
[16] There is no dispute that service was not restored until December 30, 2010.
Issues and the Law
[17] This case is grounded in the law of Negligence.
[18] The unique issues attached to it can be framed as follows:
Did 2164017 Ontario Ltd. cause the disruption to the plaintiff’s phone lines when they were filling in the trench in December 2010? If yes …
Did 2164017 Ontario Ltd. owe a duty of care to the plaintiff to ensure that any construction work did not interfere with them? If yes …
Did 2164017 Ontario Ltd. fail to take reasonable care and action when filling in the trench which then resulted in the plaintiff’s telephone service being disrupted? If yes …
Did the plaintiff suffer damages as a result of the telephone service being disrupted? If yes …
How much are the damages and what percentage is attributable to the defendant?
[19] The starting points in any trial are findings of credibility and findings of fact. This is the factual foundation or lack thereof that drives the answers to the issues at hand.
Analysis
Evidence of Mr. Narine
[20] I will first turn to the evidence of Mr. Narine, the main witness for the plaintiff. He was, and is, the owner and operator of Kiskadee Ventures Limited.
[21] Mr. Narine testified that Kiskadee is in the business of importing and exporting tropical fruits, vegetables and fish from the Caribbean and South America. He testified that it is a very time-sensitive operation because they are dealing with fresh produce. He says that his only way of communication with his suppliers is by telephone. Mr. Narine, for the plaintiff, claims that as a result of the delay in the telecommunications being restored, he suffered a business loss in excess of $80,000.00.
[22] There are, in my view, a myriad of significant difficulties with Mr. Narine’s evidence, such that I am unable to place any weight upon it.
[23] Let me give you just some examples.
[24] Mr. Narine testified that he made a payment to his St. Lucian supplier, Walter Richard, in the amount of $4,065.00 to cover his business losses that resulted from the disruption in telephone communication.
[25] He points to a letter from Mr. Richard (Tab 9) in support of this loss. The letter however, is void of any detail. It speaks in very general terms about not being able to get in touch with Mr. Narine but does not make any reference as to when that was. There is a general reference to losses for fruits and vegetables, but there is no breakdown or invoice attached to support the claim.
[26] The lack of detail in the Richard letter leaves me perplexed about its authenticity. However, when combined with the other letters from the suppliers, I find my concern elevated to one of suspicion.
[27] Here is why.
[28] There are five letters in total from different suppliers. I have set out below the dates on the individual letters and the corresponding fax dates:
Supplier
Date on Letter
Fax Date
St. Lucia (Tab 9)
January 5, 2011
April 26, 2012
Trinidad (Tab 11)
January 10, 2011
April 3, 2012
Jamaica (Tab 12)
January 19, 2011
April 26, 2012
Guyana (Tab 13)
January 20, 2011
April 3 & February 9, 2012
Dominican Rep. (Tab 39)
No Date
April 3, 2012
[29] The chart above reflects the evidence and the discrepancies between the date on each letter and the date that they were potentially faxed to Mr. Narine.
[30] Mr. Narine agreed that all the letters were faxed to him. He further agreed that the date the fax was received is typically reflected in the upper left hand corner of the document. He also said that if the fax date is wrong, that means the fax is “garbage” and it will not go through. Mr. Narine acknowledged the discrepancies between the dates but offered no explanation for it. He simply said he could not remember what day he received the letters. If these letters were faxed on the date reflected, that means Mr. Narine paid off the suppliers months before he received the letters requesting reimbursement. Of course this makes no sense at all. Without a reasonable explanation from Mr. Narine, I am at a loss as to what actually happened. If there is some truth in what Mr. Narine says about this issue, I am unable to discern it.
[31] Mr. Narine testified more than once that his only method of contact with his suppliers was telephone. He was adamant that his suppliers did not have email or fax service. Yet, at the top of Mr. Richard’s letter (Tab 9), it lists his email and his fax number. Mr. Narine repeatedly said that none of his suppliers had telephones or telephone numbers. He relied on them to call him. It is clear from the letterhead of at least three of his suppliers that they had either a telephone number, fax number, email address or, in some cases, all three.
[32] Mr. Narine testified that he had no way of getting a hold of his suppliers and that is why the loss occurred. When asked if he had a cell phone, he admitted that he did. Later, he said that it was broken on the same day that the service was disrupted. He said he could not use his home phone. He reluctantly admitted that his son had a business in the same building, but he did not use his cell. He also seemed to suggest that his son’s business did not have another phone. His evidence was at best confusing. It made no sense to me that Mr. Narine, knowing the time-sensitive nature of his business, did not use his son’s cell phone, his home phone or even a neighboring business’s phone to make the necessary calls.
[33] I am mindful that Mr. Narine at one point testified that it was his suppliers who called him and he had no way of calling them. This is inconsistent with the telephone bill he submitted into evidence, which clearly shows that Mr. Narine made frequent and multiple calls to his suppliers.
[34] I am also mindful that only six suppliers were affected. There is no evidence that he attempted to call any of them from December 11 to December 30. Mr. Narine testified that he had no way of getting a hold of his Ontario suppliers. This evidence falls into the realm of the absurd. The Ontario suppliers were less than a two hour drive away and I am certain that in 2010 they would have had multiple forms of communication available to them. Ultimately, Mr. Narine admitted that he was able to place orders with his Ontario suppliers within a week of the service disruption. When pressed, or perhaps when he realized the absurdity of his answer, he said he missed placing his weekly order because of the service disruption and had to wait until the following week to place it. Curiously, he said he did place the order the following week by using a telephone, which begs the question: if Mr. Narine had access to a telephone to contact his Ontario suppliers, surely he could have used that same telephone to contact his Caribbean suppliers?
[35] It is disturbing, that but for the questions about contacting the Ontario suppliers, Mr. Narine was comfortable leaving the Court with the impression that they had not been reached at all. In cross examination, counsel asked Mr. Narine about the roosters that were not delivered from Trinidad. Mr. Narine gave a complete explanation, yet failed to mention that the roosters were actually from an Ontario supplier. It was only when the Court noticed that the document reference listed them as being from Ontario that Mr. Narine spoke up. But for this intervention the court would have be left with the impression that the roosters were from Trinidad. The fact that Mr. Narine would put forward evidence that he know to be inaccurate impinges on his reliability and credibility at large.
[36] Mr. Narine, in my view, had a demonstrated pattern of guessing during his testimony. At best it supports a finding of carelessness with the evidence and, in my view, a disrespect for the sanctity of the judicial process. In the examples cited above, I am unable to say whether he was guessing or lying; either way, it significantly impinges on his credibility at large.
[37] Perhaps the most troubling is Mr. Narine’s evidence regarding the supplier Jose Lopez. Mr. Narine says he received a letter from Mr. Lopez asking to be reimbursed for $20,922.00 due to product loss (Tab 39). The letter is undated, void of detail and partially illegible. When pressed, Mr. Narine said “he thinks he received the letter in March or April 2011”. He also says that he made 20 individual payments to Mr. Lopez between February 3, 2011 and July 6, 2011 that totaled $48,815.00. He said that some portion of each payment was attributable to the $20,922.00 he owed Mr. Lopez for the loss of produce. None of what Mr. Narine said makes sense. According to Mr. Narine, he started paying Mr. Lopez back even before he received the letter requesting reimbursement. Mr. Narine was unable to say which portion of each payment was for the reimbursement. Moreover, there are no invoices, order forms or supporting documentation from Mr. Lopez outlining what products he lost that amounted to over $20,000.00. It seems highly unlikely to me that even in the best business relationship, one would simply take someone at their word that they lost $20,000.00 worth of product. I find the letter to be highly suspect. In fact, I belief that Mr. Narine may have generated this letter himself for his own purposes.
[38] In support of his claim for damages Mr. Narine directs me to a chart summarizing the product cost and profits lost. ( Tab 40) The chart was made at his direction in preparation for this claim. It is my view that it is entirely self-serving and I place no weight upon it. I make the same finding in relation to Mr. Narine’s detailed summary of the products from each country that were not delivered to him (Tab 40). This document was generated by Mr. Narine in preparation for this claim and there are no independent documents in support of it. When questioned as to how he came up with the quantity of products, his answer was most confusing. Admittedly, he had no paperwork to support it, which is a highly suspect business practice in my view. In re-examination, he agreed with counsel that he had conversations with suppliers and that is how he knew the quantity. This highly leading question did nothing to rectify the credibility of Mr. Narine in the Court’s eyes. It was apparent that he was caught in some kind of untruth and in reaching for an answer, he simply took the one that counsel handed him and I am not prepared to place any weight upon it.
[39] One would expect, given the extent of the losses claimed, that Mr. Narine would have some documentary support in the form of invoices or order forms. There are none. Mr. Narine said he just took the suppliers at their word that they had procured and paid for the amount of product detailed in their individual letters. This just makes no sense to me and, combined with my concerns about Mr. Narine’s credibility at large, I am not prepared to accept it.
[40] I am mindful that Mr. Narine, up until some unknown point in 2010, was a member of the Board of Directors for this condominium corporation. He was reinstated in 2012 and currently sits on the Board. In cross examination, it came out that Mr. Narine was removed from that position due to some kind of financial mismanagement. The fact that Mr. Narine sits on the Board for the condominium corporation who were co-defendants in this case, suggests some degree of bias. My concerns in this regard were heightened when it came to light that Mr. Narine inserted himself into the 2009 incident. Mr. Narine testified that as Board member, he was not allowed to interfere, but, as an owner, he had every right. In my view, this was a further illustration of Mr. Narine’s propensity to manipulate a fact situation to advance his position. I remain concerned about his self-serving agenda when it comes to his evidence about 2164017 Ontario Ltd. following protocol and obtaining approvals. In my view, his relationship with the Board impinges on his objectivity and his credibility at large.
[41] Mr. Narine presented a Bell Canada Telephone phone bill to support his claim that he had no contact with his suppliers from December 11 to December 30, 2015 (Tab 41). Upon closer inspection, it is apparent to me that this bill is for telephone calls for a billing period from November 10, 2010 to December 10, 2010. It has absolutely no bearing on the time period for which the disruption of service is being claimed.
[42] It became apparent through cross examination that Mr. Narine was prepared to say anything to put himself in the best possible position. Mr. Narine’s evidence was careless, self-serving and littered with far too many inconsistencies to mention.
[43] I am mindful that a court can accept all, part, or none of a witness’s evidence. In Mr. Narine’s case, it would be dangerous to accept any of it. I do not know where the truth lies if there is any in his evidence.
[44] For the aforementioned reasons, I reject his evidence in its entirety.
Evidence of David Hay
[45] I will now turn to the evidence of David Hay, the second witness called by the plaintiff.
[46] Mr. Hay was the Bell Canada technician who attended at 130 Dynamic Road and met with Mr. Narine regarding the service disruption. Mr. Hay said he was able to verify that the lines to one of Mr. Narine’s units was not working. He was uncertain as to which unit that was. He also said that he was able to determine that the problem was not coming from outside of the building. He was of the view that the problem was in the conduit running from the telephone room to Mr. Narine’s unit.
[47] He had no evidence regarding the cause of the problem and could not remember what date in December he attended.
[48] His evidence was not contested, but did little to advance the plaintiff’s case.
Evidence of Song Yang
[49] I will now turn to the evidence of Song Yang, the owner of 2164017 Ontario Ltd. Mr. Yang testified with the assistance of a Cantonese interpreter. I found Mr. Yang to be an honest, candid and forthright witness. He easily admitted responsibility for an incident in 2009 where the telephone and Hydro lines were cut to his and one other unit.
[50] Mr. Yang says he had, at the time the work was done, acquired all the necessary permits and the permission of the condominium corporation. In that regard he presented two sets of permits, one dated and one not. He explained that the undated permits were for the 2009 renovation and the second set were obtained after the 2009 incident. He does not know why the first set are not dated.
[51] I have no difficulty accepting Mr. Yang’s evidence on this point. There is absolutely no evidence to contradict him, except that of Mr. Narine whose evidence I have rejected.
[52] Mr. Yang says he was present when the cement was being poured and he told the men who were do the pouring to be extra careful because of what had happened in 2009. Again, I accept his evidence in that regard. He is, in my view, a sincere and genuine individual and there is no evidence to contradict him on this point.
[53] Finally, Mr. Yang says the work happened the Saturday before Christmas, probably December 18, 2010. I am not sure what turns on this except that Mr. Narine was adamant that the incident happened on December 11, 2010. The final witness for the defendant, Mr. Hong testified that he was helping with the pouring of the cement on December 18, 2010. He said he knew that was the date because he had just arrived back in Canada a few days prior. The plaintiff’s counsel asked if he could verify the date he returned. Mr. Hong in response produced his passport that clearly showed he returned back to Canada on December 14, 2010.
[54] I am satisfied and find as a fact that the pouring of cement took place on December 18, 2010.
Conclusion
[55] I find as a fact that Mr. Yang did have cement poured to fill in a trench in his unit on December 18, 2010.
[56] I accept and find as a fact that Mr. Narine’s telephone service was not working on December 18, 2010.
[57] There is, however, no evidence of which I do accept to support a finding that the pouring of the cement caused the disruption of service in the plaintiff’s unit.
[58] There is no direct evidence that the plaintiff’s phone lines ran through the defendant’s unit. Counsel argues that it is a logical inference to be drawn upon the evidence.
[59] I disagree.
[60] This is a multi-unit commercial complex. The evidence seems to point to a finding that telephone lines ran underneath the building floors to a common telephone room. But there is no evidence that the plaintiff’s telephone cables ran underneath the defendant’s unit. I know that another unit’s phone lines did, as they were damaged and repaired as a result of the 2009 construction. One might argue that if the plaintiff’s phone line did run through the defendant’s unit, it would also have been damaged in the 2009 construction. Given that the damage at that time seemed quite extreme in that it was hydro and phone cables, one would think that because Mr. Narine was overseeing that repair – if his cables were in that same vicinity he would have had them checked to make sure they were still intact. In my view, a finding that the plaintiff’s telephone line ran underneath the defendant’s unit would be speculative and thereby improper.
[61] As a result of my findings on the issue of causation it is not necessary for me to go on and consider the issues attached to this trial.
[62] Although, I will say that I find myself well satisfied, that Mr. Yang acted reasonably, responsibly and with much care when having the cement poured into the trench on December 18, 2010.
[63] My total rejection of the plaintiff’s evidence includes his evidence regarding damages. Accordingly, I find there to be no damages flowing from this incident to the plaintiff.
[64] After a thorough review of the evidence, the law and the submissions of counsel, I find that the plaintiff has failed to meet its onus.
[65] Accordingly, the action as against the defendant 2164017 Ontario Ltd. is dismissed.
Wright, J.
Released: June 16, 2015
CITATION: Kiskadee Ventures v. 2164017 Ontario Ltd., 2015 ONSC 3877
COURT FILE NO.: CV-11-433421
DATE: 20150616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KISKADEE VENTURES LIMITED
Plaintiff
– and –
2164017 ONTARIO LTD., PAL/MAX PROPERTY MANAGEMENT INC. AND METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 870
Defendants
REASONS FOR JUDGMENT
Wright, J.
Released: June 16, 2016