CITATION: G2000 Express Inc. v. 2251760 Ontario Inc., 2015 ONSC 6031
COURT FILE NO.: CV-15-2165-00
DATE: 2015-10-05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: G2000 EXPRESS INC. and 2251760 ONTARIO INC. operating as KING TOWING, KING TOWING INC., SUKHJINDER SINGH DHESI also known as SUNNY and ZURICH INSURANCE GROUP LTD.
BEFORE: LEMON J.
COUNSEL: Riaz S. Ahmed, Counsel for the Applicant
Yuvraj S. Chhina, Counsel for the Respondents
No one appearing for Zurich Insurance Group Ltd.
HEARD: August 26, 2015
ENDORSEMENT
The Issue
[1] The applicant, G2000, has brought this application for a declaration that the respondents, generally known as King Towing, are not entitled to a lien on G2000’s Volvo tractor pursuant to the Repair and Storage Liens Act. If successful with that argument, G2000 seeks an order that King Towing is not entitled to any payment of any storage charges and must immediately relinquish possession of G2000’s tractor.
[2] In its Notice of Application, G2000 also agrees that, if necessary, an order for the trial of any issue could be made.
[3] More succinctly, the issues are as follows:
Is King entitled to a Repairer’s Lien?
Is King entitled to a Storer’s Lien?
Does G2000 owe King any towing fees?
Depending on the answers to those questions, what is the appropriate remedy?
Should Zurich Insurance Group Ltd. be required to pay settlement funds to G2000, or, in the alternative pay them into court?
Background
[4] G2000 carries on business as a trucking company. The respondents, other than Zurich Insurance, carry on business as a towing company. Those respondents have their registered head office and their operations at the same address. The shareholders, directors and officers are the same and Sukhjinder Singh Dhesi is the controlling mind of the companies.
[5] G2000 is the registered owner of a 2007 Volvo 670 Tractor. That tractor had a breakdown in Wisconsin. G2000 and King agreed that King would tow the tractor from Wisconsin.
[6] King’s driver picked up the tractor in Wisconsin on January 26, 2014. On January 27, 2014, the tow truck was involved in a multi-vehicle collision in the state of Michigan. As a result, G2000’s tractor suffered extensive front and rear end damage.
[7] There is a dispute as to when King advised G2000 of that damage. In any event, the tractor was taken to King’s yard rather than G2000’s yard. There is a dispute as to whether that was at the request of G2000 or King.
[8] On May 28, 2014, G2000 reported the damage to Zurich. There is a dispute as to why it took G2000 so long to report the claim.
[9] As the tractor was still in King’s possession, Zurich contacted King. Zurich determined the tractor to be a total loss and offered a cash value settlement to G2000 of $27,440.33, less any applicable storage fees that might be owed to King. King claims $195.00 per day from January 26, 2014, onwards. G2000 denies those charges and denies King’s right to a lien.
[10] It is important to note that both counsel did not wish a trial of an issue in this matter. Although the principals of the companies were cross-examined on their affidavits, there was no request for viva voce evidence.
[11] Apparently Zurich Insurance takes no position on this motion.
- Is King Towing Entitled to a Repairer’s Lien?
[12] It is agreed that King did not undertake any repairs with respect to the tractor. In order to qualify for protection under the legislation, the service performed must result in improvement, alteration or some change in the properties of the condition of the tractor. The towing must be a necessary expenditure in connection with the repair service intended: see Repair and Storage Liens Act, R.S.O. 1990 c. R.25, ss. 1,3; 858579 Ontario Inc. v. QAP Parking Enforcement Limited, 1994 CarswellOnt 775 (Gen. Div.).
[13] It is clear, therefore, that King Towing has no lien pursuant to the repair provisions in the Act.
- Is King Towing Entitled to a Storer’s Lien?
Positions of the Parties
[14] G2000 alleges that King failed to advise G2000 of the collision and instead actively concealed it. G2000’s representative deposed that the principal of King advised that the driver was tired and so the tractor was towed to King’s yard instead. Further, King offered to tow the tractor to G2000’s yard the following week free of any charge. There was no mention of any storage fees during this discussion. Later, when the Volvo dealership advised G2000 that it would take time to obtain the requisite parts for repair, King offered to store the tractor, as a courtesy, until the Volvo dealership was ready to receive it. Again, there was no mention of any storage fees during this discussion.
[15] When the Volvo dealership advised that they were ready to take the tractor, only then did King say that G2000 had failed to pay the towing invoice. G2000 takes the position that the towing invoice had been paid to a representative of King. There is a dispute between the parties as to whether that individual had apparent authority to accept payment or even if the payment was paid to the right corporation.
[16] G2000 says that only in May of 2014 were they advised of the collision in Michigan. Upon obtaining that information, they reported the damage to Zurich. Only when Zurich contacted King was the issue of storage charges raised. King took the position that they would not release the tractor until the storage was paid in full.
[17] King denies almost all of that history. Rather, its principal deposed that the accident was reported to G2000 on January 30, 2014, and relies upon documentation from Zurich that a representative of G2000 stated that the tractor was left in King’s lot due to space constraints in G2000’s yard. As a result, it is owed storage fees.
[18] King denies that they have been paid for the towing charge. Rather, it says that a former employee of King apparently attended at the premises of G2000 and obtained a cheque payable to a company other than King. Accordingly, it has not been paid its towing fee. Without payment of that fee, they are entitled to retain the tractor and charge for its storage.
Analysis
[19] On the materials filed, I cannot make a determination of whether there was an agreement to store the vehicle at King free of charge, whether King has been paid or when G2000 was advised of the accident. I have reviewed the transcripts of the cross-examination. The cross-examination of G2000’s representative is interrupted so often by his counsel that it is difficult to follow. However, what does come from the cross-examination of the respondent is as follows:
- Q. So now you’re telling me that him coming is proof enough that he’s willing to pay your storage charges?
A. If it doesn’t get picked up, that’s right.
- Q. Okay. So ...
A. If he doesn’t …
- Q. Why did …
A. … pay … if he doesn’t pay my invoice, there’s going to be storage charges.
[20] And:
- Q. …But if your position is that he was informed and that the vehicle was there, would that not have been an opportune time to have him sign a storage contract saying …
A. There …
- Q. … these are our …
A. … there’s …
- Q. … daily rates for storage?
A. There’s never a storage contract.
[21] Pursuant to section 4 of the Act, a storer has a lien against an article that the storer has stored for an amount equal to the amount agreed upon for the storage. Alternatively, where no such amount has been agreed upon, the storer has a lien for the fair value of the storage and the storer may retain possession of the article until the amount is paid.
[22] Given the answers by King’s representative, there was no amount agreed upon for storage of the tractor. Further, there is no evidence in the materials before me as to what the fair value of the storage might be. While counsel have referred to other cases where a storage amount has been found, I cannot rely on other cases to find the appropriate fee.
[23] Without an agreement or evidence of the fair value of the storage, there can be no lien.
[24] Accordingly, King Towing is not entitled to a Storer’s Lien.
- Does G2000 Owe King Towing Any Towing Fees?
[25] On the evidence before me, I cannot tell whether the account has already been paid. It appears that four individuals were involved in those discussions. Only two have provided their recollection and they are diametrically opposed. I have been provided with hearsay notes of representatives of Zurich. On the cross-examination transcripts, I can make no determination of the credibility of the principals of the two companies. That issue should be left to the trial of an action.
[26] It may be that the parties might consent to transferring the action to the Small Claims Court. If not, the trial procedure of this action should be refined. Accordingly, I order as follows:
The application record, responding record of the respondents and supplementary application record shall form the pleadings. There will be no necessity of filing a further Statement of Claim or Statement of Defence.
The cross-examination transcripts shall take the place of examinations for discovery. Absent consent, there shall be no further questioning.
G2000 will file a Trial Record which will include the pleadings set out above as well as this Endorsement.
Within 45 days, both parties shall file affidavits of all other witnesses upon whom they rely. Those affidavits will constitute the examination in-chief of all witnesses.
The representatives of the companies, who have already filed affidavits, will give their evidence in-chief and cross-examination at trial. Their affidavits and transcripts of their cross-examinations will be available for cross-examination purposes.
The action shall be placed on the Assignment court list of November 23, 2015.
The issues for trial will be:
(a) Has G2000 paid the towing charge?
(b) What is the appropriate amount of storage fees, if any, that King Towing is owed?
(c) If King Towing is found to be entitled to storage fees, what is the duration of those fees?
- What is the appropriate remedy?
[27] As I have found that King is not entitled to a lien on the tractor, it shall make the tractor available to G2000 at G2000’s request. G2000 shall pick up and remove the vehicle within the next 30 days.
- Should Zurich Insurance Group be required to pay the settlement funds to G2000 or, in the alternative, pay them into court?
[28] Given that I have found that King Towing has no lien on the vehicle and G2000 should obtain the vehicle forthwith, I leave it to Zurich and G2000 to make their own determination of the insurance payment. If necessary, I shall remain seized of that issue and counsel may contact me for any further orders.
Costs
[29] Costs of this application shall be left to the trial judge to be determined as part of that action. However, should the parties transfer the matter to the Small Claims Court, written submissions may be made to me with respect to costs. Each submission shall be no more than three pages not including any bills of cost or offers to settle. I leave it to counsel to determine the timetable for the submissions so long as both are to me within 30 days.
Lemon J
DATE: October 5, 2015
CITATION: G2000 Express Inc. and 2251760 Ontario Inc., 2015 ONSC 6031
COURT FILE NO.: CV-15-2165-00
DATE: 2015-10-05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: G2000 EXPRESS INC. and 2251760 ONTARIO INC. operating as KING TOWING, KING TOWING INC., SUKHJINDER SINGH DHESI also known as SUNNY and ZURICH INSURANCE GROUP LTD.
BEFORE: LEMON J.
COUNSEL:Riaz S. Ahmed, Counsel for the Applicant
Yuvraj S. Chhina, Counsel for the Respondents
ENDORSEMENT
LEMON J.
DATE: October 5, 2015