CITATION: Massalin v. Garcia, 2016 ONSC 5945

BARRIE COURT FILE NO.: CV-16-0223

DATE: 20160922

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FERNANDO MASSALIN and MARIA MASSALIN, Applicants

AND:

OSCAR GARCIA, MARIA BARCHUK and LA COMPANIA, Respondents

BEFORE: THE HON. MADAM JUSTICE M.E. VALLEE

COUNSEL: Amanda M. Chapman, for the Applicants

Domenic Saverino, for the Respondents

HEARD: August 31, 2016

ENDORSEMENT

[1] The applicants bring an application for specific performance of an oral agreement between the parties that the respondents would store the applicants’ furniture and two oil paintings and then allow the applicants to obtain them when they when they were ready to move to Argentina. The respondent’s position is that the applicants gave some of these items to the personal respondents as gifts. The respondents state that the applicants may pick up the remainder of it.

[2] Almost all of the interactions between the applicants and respondents were verbal. There is no written agreement.

Issues

(1) Should this matter have been brought as an application?

(2) Did the applicant give certain items to the respondents as gifts?

(3) Did the applicants suffer damages as a result of the respondents’ failure to return all of the furniture and paintings?

Should this matter have been brought as an application?

[3] Rule 14.05(3)(a) - (h) states that proceedings may be brought by application when certain types of relief are claimed. Given the nature of this dispute, only (g) and (h) are applicable.

[4] The applicants state that they are requesting a mandatory order, which falls within (h) being specific performance. If the respondents took issue with the manner of proceeding, they should have raised it earlier. Cross-examinations have been held. The parties are ready to argue the application. The respondents should have brought a motion if their position was that this application should be converted to an action.

[5] The respondents state that many material facts are in dispute. Counsel wrote to counsel for the applicant three times asking what authority was being relied upon for the applicants’ entitlement to bring these proceedings by way of application. The last letter from the respondents was dated June 8, 2016. The respondents also state that it is not their responsibility to see that the applicants used the proper originating process.

[6] Rule 1.04 states that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Ordinarily, when certain facts are in dispute, an action is the proper way to proceed. Here, cross-examinations have been conducted. The respondents’ waiting until the application was immediately before the court and then raising the issue of whether this matter should proceed by way of action is inappropriate. I find that converting this application to an action at this stage would not accomplish the mandate set out in Rule 1.04.

Did the applicants give certain items to the respondents as gifts?

[7] The parties agree on the law that applies to gifts. They both rely on Fornasier v. Grills, 2009 CarswellOnt 9679. In paras. 51 and 52, the court set out the test for proving a gift as follows:

The onus of proving a gift is upon the donee…the donee is required to prove three things:

(a) An intention to donate;

(b) Acceptance of the gift; and

(c) A sufficient act of delivery.

The standard of proof to prove the intention to donate is high. The donee must show that the transaction was a gift by providing a clear and unmistakable intention on the part of the donor to make the gift to the donee. In weighing any conflict evidence, it is not sufficient that the preponderance of evidence may turn the scale slightly in favour of the gift. The preponderance must be such as to leave no reasonable room for doubt as the donor’s intention. It should be inconsistent with any other purpose. It falls short of going that far then the intention of gift fails.

[8] The applicants are originally from Argentina. They have lived in Canada for a number of years. They encountered financial problems and wanted to return to Argentina. They had two properties, a house in Toronto and a farm property. They listed the house in Toronto for sale and in the interim rented it. They eventually sold the farm.

[9] The applicants and respondents were either friends or acquaintances. The respondents owned a furniture company, the respondent La Compania. The applicants needed a place to store their furniture and paintings from the Toronto house until they sold the properties and could return to Argentina.

[10] The applicant says that the respondents agreed to store the items. They agreed that the respondent could sell some of the items. The applicant says that the respondent did sell a side table for $2,500. La Compania provided a cheque to the applicants for that amount.

[11] The respondent states that the applicants gave them certain pieces of furniture which included several antiques. The gift was to thank the respondents for everything that had done for the applicants.

[12] The respondents deny that they were to sell some of the furniture. They agree that their company provided the cheque in the amount of $2,500 to the applicants payable to “La Marotta”; however this was only to help them out.

Analysis

Intention to donate

[13] It is illogical that the applicants would give antique furniture to the respondents if the applicants were in financial difficulty. More likely, that furniture would have been sold. When the respondent Maria Barchuk was asked under cross-examination to explain what the respondents had done for the applicants such that the applicants would give them antique furniture to express their appreciation, Ms. Barchuk could not provide an answer.

[14] Given the respondents evidence on this point, I am left with a considerable doubt as to the applicants’ intention to donate. I find that the respondents have not met the onus to prove that the applicants had an intention to donate. The items that the respondents allege were gifts are the property of the applicants.

Did the applicants suffer damages as a result of the respondents’ failure to return all of the furniture?

[15] The applicants claim $10,000 as general damages because the applicant Mr. Massalin had to remain in Canada to resolve this issue concerning the furniture, while the applicant Ms. Massalin went to Argentina earlier because her mother was ill.

[16] The applicants claim $30,000 because they lost an opportunity to ship a container with Ms. Massalin when she left for Argentina. Their evidence is that each of them was entitled to ship a container, the contents of which would be duty free, when each of them travelled to Argentina.

[17] The applicants also claim $4,102.10 for storage costs in Canada as well as $2,107 which is the increased US domination exchange for a container to be shipped to Argentina now as compared to the price when the parties were ready to leave.

[18] No authority was provided to me to support the applicants’ request for $10,000 in general damages to compensate Mr. Massalin for having to remain in Canada.

[19] The evidence with respect to the shipping containers is not clear. When Ms. Massalin left for Argentina, she could have shipped a container at that time. Apparently, she chose not to do so because the container would not have been full and the shipping cost was not justified.

[20] There is evidence that the applicants did intend to take two containers. They stated that now they are limited to one container.

[21] The applicants state that there is a small difference in cost to ship a 20-foot container in contrast to a 40-foot container. The cost related to the 20-foot container is approximately $15,000 to $18,000. The cost to ship a 40-foot container is approximately $20,000.

[22] The respondents state that the applicants did not lose an opportunity to ship two containers to Argentina. Ms. Massalin could have shipped one container when she left for Argentina. Mr. Massalin can still ship the other container when he leaves for Argentina. They made a conscious decision not to ship the first container.

Analysis

[23] I agree with the respondents that the applicants did not lose the opportunity to ship two containers. While the applicants state that the cost of the container could not be justified because it would not have been full, no specific value was ever placed on the items that could have been shipped in the first container. The evidence is vague in this regard. With respect to the storage costs in Canada claimed in the amount of $4,102.10, some invoices were provided but they were addressed to 2405452 Ontario Inc. c/o Fernando Massalin. It is not clear what, if any relationship Mr. Massalin had with 240452. Accordingly, this amount is not allowed.

[24] Regarding the increased cost to ship a container now in contrast to what the cost would have been had the applicants been able to ship two at the time when they intended to leave, the applicant Mr. Massalin states in his affidavit that, “a 20 foot container will cost $15,000 to $18,000 USD, while if we have all of our belongings (including the personal belongings that the Garcia’s [sic] have in their possession) ready to ship, we could arrange to ship a 40 foot container which would only cost $20,000 USD.” The difference could be between $2,000 to $5,000.

[25] While the cost to ship the container with Mr. Massalin could be increased as compared to the cost that would have been incurred had Mr. Massalin left for Argentina at the same time that Ms. Massalin departed, as a result of the currency exchange rate, the evidence as to the shipping cost differential is vague. Accordingly, no amount is allowed for this claim.

Conclusion

[26] I note that some pieces of the furniture can be described as unique. There was evidence that some pieces were hand-made in Argentina. Some were family heirlooms. In contrast, the rest of the furniture was not unique. The respondent has not challenged whether specific performance is an appropriate remedy in these circumstances.

[27] The applicants shall have an order for specific performance of the oral agreement. The respondents shall permit the applicants to pick up the items set out in Schedule A of the Notice of Application.

Costs

[28] If the parties cannot agree on the amount of costs or who should pay them, they may provide written submissions. The text of the submissions shall be a maximum of 3 pages with 1.5 spacing, regular margins and 12 point font. The parties shall each serve and file written submissions within 20 days of the date of this endorsement. They shall file responding submissions, if they wish, within a further 10 days.

VALLEE J.

Date: September 22, 2016