Panarcadian Federation of Canada v. Synsweet Retail Inc., 2016 ONSC 401
CITATION: Panarcadian Federation of Canada v. Synsweet Retail Inc., 2016 ONSC 401
COURT FILE NO.: CV-14-504885
DATE: 20160125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PANARCADIAN FEDERATION OF CANADA
Plaintiff
– and –
SYNSWEET RETAIL INC. and JACK GREEN
Defendants
Nicholas P. Kapelos, for the Plaintiff
HEARD: In Writing
G. DOW, J.
REASONS FOR DECISION
[1] The plaintiff, Panarcadian Federation of Canada, seeks default judgment from the defendants in writing on the basis of motion material dated September 23, 2015. I reviewed same and requested additional materials which were delivered under cover of letter November 13, 2015.
Background
[2] The plaintiff is a non-profit corporation that is the registered owner of a building at 450 Danforth Avenue, the ground floor of which can be rented for retail operation. The plaintiff leased this space on February 25, 2008 to the corporate defendant to conclude on February 28, 2012 with an option to renew for an additional five years at fair market value. The corporate defendant is a bulk candy store operating under the name Suckers Candy Co. The signature on the lease for the corporate defendant is difficult to make out but is clearly not that of the non-corporate defendant, Jack Green.
[3] A renewal of the lease was negotiated and agreed to October 26, 2012 providing for payment of $5,000 per month plus HST and additional (operating costs) rent. The renewal agreement does appear to be signed by the defendant, Jack Green.
[4] The corporate defendant fell behind in the payment of the rent and a meeting was held sometime in December, 2013 when Jack Green tendered two cheques dated January 15 and January 30, 2014 in the amount of $4,000 each to the plaintiff from a numbered corporation, 176118 Ontario Limited.
[5] On January 17, 2014, the president of the plaintiff attended at the property and observed the corporate defendant had closed and removed the stock, fixtures and equipment. There was a notice taped to the side of the front window directing customers to a website. In the plaintiff’s mailbox (on the second floor) there was a note authored by Jack Green to the plaintiff with the keys to the premises.
[6] The evidence of the plaintiff is that $18,087 of outstanding and additional rent had accrued as of when the corporate defendant abandoned the premises.
[7] The plaintiff spent $9,322.50 cleaning and painting the premises for the purpose of renting it. This occurred effective August 1, 2014 with rent being paid as of October 1, 2014.
[8] The plaintiff provided a schedule of the lost revenue and expenses incurred as a result of the corporate defendant abandoning the premises. It totaled $490,524.67. It included the amount reviewed in the preceding paragraphs and legal expenses in negotiating the new lease of $8,473.08 which, in my view, is not recoverable as it is too remote and would be incurred by the plaintiff at some point in any event. This reduces the gross damages to $482,051.59.
[9] The plaintiff has then correctly credited the rent to be paid by the new tenant and totaled same to be $367,206.24. The net difference is $114,845.85 and this amount is awarded to the plaintiff as against the corporate defendant.
Additional Damages – Right to Distrain
[10] The plaintiff seeks additional damages alleging the defendants fraudulently removed the contents, fixtures and equipment in contravention of the Commercial Tenancies Act, R.S.O. 1990, c.L.7. The president of the plaintiff deposed his estimate of the “total stock, fixtures and equipment would be approximately $12,500”. However, it was also his evidence that it “is not possible to quantify exactly” what was removed. I requested additional evidence in this regard and the plaintiff supplied evidence from the secretary of the plaintiff of discussions with a similar bulk candy store business, Sugar Mountain and being advised by the manager of that store that they were of a similar size to Suckers Candy Co. and that they would maintain an inventory of between $17-$20,000.
[11] In my view, there was insufficient evidence to establish fraud and I requested additional evidence from the plaintiff if it wished to pursue this claim. In response I received copies of the January 15 and January 30, 2014 cheques apparently signed by Jack Green on behalf of 1761118 Ontario Limited.
[12] The plaintiff had previously tendered the corporation profile reports from the Ministry of Government Services for Ontario for the corporate defendant which failed to identify Jack Green as an officer or director of that corporation. I was not provided with a corporation profile report for 1761118 Ontario Limited.
[13] I also reviewed the statement of claim in which paragraph 1(c) seeks a declaration that the defendant(s) has “perpetrated a fraud” but does not specifically subsequently plead conduct that would, in my view, amount to the legal definition for civil fraud which includes a knowing misrepresentation or knowing concealment of a material fact made to induce another to that other’s detriment. For example, there is no evidence as to the balance in the account of 1761118 Ontario Limited when Mr. Green tendered the cheques or the known inability of that corporation to earn sufficient revenue such that those cheques would be honoured on their due date.
[14] As a result, the claim for these additional damages fail.
Amend Title of Proceeding
[15] Counsel also seeks to amend and include Suckers Candy Company as a defendant. Given the evidence of the defendant’s use of that name, I am prepared to grant this request.
Interest
[16] The damages claimed includes rent extending to the year 2018. As a result, a large portion of the claim would not attract pre-judgment interest. The statement of claim was issued May 26, 2014 and the applicable rate of interest under s. 127 of the Courts of Justice Act is 1.3 percent. I attempted to calculate interest for the rent due and not paid before issuance of the statement of claim and communicated my calculation of $225 in this regard. I received a draft judgment from the plaintiff that included my calculation. As a result, pre-judgment interest is assessed at $225 and awarded.
Costs
[17] The plaintiff submitted a Bill of Costs in the amount of $12,444.56. However, as I noted to counsel, the lawyer’s certificate certifying the dockets and rates was not signed. This was not remedied in the supplementary materials provided. I also indicated my difficulty with a claim of $3,500 for counsel fee with regard to the motion submitted (in writing) and assessed costs in the amount of $5,679.53 subject to further submissions. No further submissions were received and the draft judgment included this amount for costs which is thus awarded.
Summary
[18] As a result, the plaintiff shall have judgment against the defendant, Synsweet Retail Inc., operating as Suckers Candy Company in the amount of $114,845.85 plus pre-judgment interest in the amount of $225. It is also entitled to recover its costs fixed in the sum of $5,679.53. Post-judgment interest will accrue at the rate of 2 percent per year commencing as of this date. I have made the necessary alteration to the draft judgment submitted or will sign a revised judgment upon the request of counsel.
Mr. Justice G. Dow
Released: January 25, 2016
CITATION: Panarcadian Federation of Canada v. Synsweet Retail Inc., 2016 ONSC 401
COURT FILE NO.: CV-14-504885
DATE: 20160125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PANARCADIAN FEDERATION OF CANADA
Plaintiff
– and –
SYNSWEET RETAIL INC. and JACK GREEN
Defendants
REASONS FOR DECISION
Mr. Justice G. Dow
Released: January 25, 2016