Introduction

[1] In this trial under the simplified rules, the plaintiff 1741347 Ontario Inc. ("174") claims damages for trespass against goods from the defendants 1572482 Ontario Inc. and Revin Bailiffs Inc. (the "bailiff"). 1572482 Ontario Inc. was the landlord of certain premises from which a kitchen manufacturing business was carried on. I will refer to 1572482 Ontario Limited as the "landlord".

[2] At the commencement of trial, I was advised that the action was discontinued against the defendants Alex Marion and Lilia Marion, and that submissions would be made in respect of costs.

[3] The landlord, with the assistance of the bailiff, exercised a right of distress for unpaid rent against its tenant, another company. 174 claims that in so doing, the landlord and the bailiff seized and sold certain goods and equipment (the "goods") that were owned by 174 for a purchase price of $9,000. 174 claims that the landlord and the bailiff trespassed against the goods and misappropriated the value of the consideration that was paid for the goods. The plaintiff claims that the goods had a value of $80,000 when they were sold, and that the defendants are liable for damages in this amount or, alternatively, in such amount as the court determines to be the value of the goods when they were sold.

[4] The landlord denies that 174 owned the goods and, therefore, it denies that it trespassed against the goods of 174. Alternatively, the landlord submits that (i) the goods did not have a value of more than $9,000 when they were sold, and (ii) 174 delayed unduly in making and substantiating a claim to ownership of the goods and, as a result of this delay, the landlord suffered damages through loss of rental income for several months. The landlord submits that if it is found liable to 174 for damages, it is entitled to set off lost rentals against those damages.

[5] The bailiff submits that it acted properly and in accordance with the instructions of the landlord, and that it was entitled to follow these instructions. The bailiff denies that it is liable to 174.

[6] Each of the landlord and the bailiff has crossclaimed against the other for indemnification for any damages for which it may be liable.

[7] For the following reasons:

a. I find that 174 was the owner of the goods when they were sold and that 174 and its agent, the bailiff, are jointly liable to the 174 for the value of the goods when they were sold in June 2009.

b. I find that 174 has not proven that the goods had a value of greater than the purchase price of $9,000 when they were sold and, according, I assess damages at $9,000.

c. I conclude that the landlord does not have a right of set off.

d. I conclude that the bailiff is entitled to an order against the landlord indemnifying the bailiff for its joint liability to 174.

Evidence at Trial

[8] The landlord is a corporation that is controlled by Alex Marion and his wife, Lilia Marion. The landlord owns an industrial condominium unit on Steeles Ave. West in Toronto (the "Property").

[9] In January 2005 the landlord entered into a lease of the Property with Vuiton Kitchen Company Inc. ("Vuiton"). Vuiton used the Property as a kitchen manufacturing business.

[10] At some point in or around 2006, RNA Group Limited ("RNA") acquired the kitchen manufacturing business from Vuiton. RNA took over the lease of the Property from Vuiton and began paying rents due under the lease to the landlord, with the landlord's knowledge and approval. No formal documentation was entered into in order to reflect this arrangement. RNA acquired from Vuiton the assets of the business that had been carried on by Vuiton, and RNA carried on this business from the Property using the business name "Vuiton Kitchen". The shares of RNA were sold on three occasions, and in March 2007 Hussain Rahal became the owner of the RNA shares. RNA continued to pay rent to the landlord.

[11] The principal and sole shareholder of 174 is Samirali Ladha. Mr. Ladha incorporated 174 for the purpose of acquiring the kitchen manufacturing business that operated from the Property. In order to do so, 174 needed to purchase the equipment from RNA and enter into a new lease agreement with the landlord. 174 was represented in respect of this transaction by Talal Chehab, a lawyer.

[12] 174 obtained an appraisal of the leasehold improvements and the equipment used by RNA in its business from William Duffy & Associates Inc. The Duffy appraisal dated November 23, 2007 was put into evidence by 174, but Mr. Duffy did not give evidence at trial. The Duffy appraisal states that it reflects Mr. Duffy's best estimate of the present market value ("in place-in use") of the leasehold improvements and equipment of the Vuiton Kitchens business that operated from the Property. The estimated value of the leasehold improvements was $240,000 and the total estimated value of the leasehold improvements and the equipment ranged from a low value of $324,205 to a high value of $335,815. Therefore, the Duffy appraisal reflects a range for the value of the equipment of between $84,205 and $95,815. The Duffy appraisal included a schedule of assets with a list of items, each of which was assigned a low value and a high value.

[13] The Duffy appraisal states that "[d]isposal of these contents in a bulk sale would be reflected by a lower price".

[14] Mr. Ladha's evidence is that 174 purchased all of this equipment that was owned by RNA for a purchase price of $80,000. A Bill of Sale was signed by Mr. Rahal on behalf of RNA as seller dated December 12, 2007 evidencing the sale of the goods to 174 for a purchase price of $80,000. The Bill of Sale included as Schedule "A" a copy of the schedule of assets that was included in the Duffy appraisal. Mr. Ladha introduced into evidence a copy of a certified cheque payable to RNA and drawn on Mr. Ladha's personal bank account dated December 12, 2007 in the amount of $80,000.

[15] According to Mr. Ladha's evidence, having completed the acquisition of the equipment from RNA, his solicitor, Mr. Chehab, then approached the landlord with a view to negotiating a new lease. Although there was correspondence between Mr. Chehab and Lawrence Fine, the lawyer representing the landlord, no new lease was entered into. On or about July 1, 2008, Mr. Ladha was informed by Mr. Chehab that RNA would no longer pay the rent. Accordingly, 174 began paying the rent to the landlord, and it did so for the months of July, August, September, October and November, 2008. During this period of time, 174 was operating the kitchen manufacturing business from the Property with the assistance of Mr. Rahal, the principal of RNA.

[16] By November 1, 2008, a prospective purchaser had surfaced wishing to purchase the business. The prospective purchaser was 1412965 Ontario Ltd. ("141"), and the principal of 141 was Rolando Gualtieri. Mr. Ladha gave authority to Mr. Chehab to negotiate a sale of the business to Mr. Gualtieri's company. The negotiations dragged on for approximately two months and, according to Mr. Ladha's evidence, an agreement was never reached and no sale was ever consummated.

[17] Mr. Marion's evidence is that he was approached in the fall of 2008 by Mr. Gualtieri and Mr. Chehab and they indicated that Mr. Gualtieri's company, 141, was taking over the business at the Property and had bought all of the assets of RNA, including the goods. Mr. Marion's evidence is that he had seen Mr. Gualtieri before at the Property and, as far as he was aware, Mr. Gualtieri was a salesperson for RNA or otherwise worked for RNA. Mr. Gualtieri told him that he wanted to run a woodworking shop at the Property. Mr. Marion was content to let Mr. Gualtieri or his business operate at the Property and take over the business from RNA.

[18] According to Mr. Marion's evidence, Mr. Chehab told him that since Mr. Gualtieri had bought or taken over RNA's business, there should be a lease between the landlord and Mr. Gualtieri or his company. On November 26, 2008, the landlord entered into an Offer to Lease with 141. 141 immediately fell into arrears of rent and a "stop payment" was put on its cheque payable to the landlord in the amount of $17,655.82. The landlord retained the bailiff who sent a notice of distress to 141 dated December 11, 2006. After the notice of distress was posted, on December 14, 2008, Mr. Gualtieri brought to the landlord's former lawyer's office a certified cheque in the amount of $8,630 together with two other postdated cheques. Mr. Gualtieri promised Mr. Marion that the rent would be paid in a timely manner.

[19] A second Offer to Lease was entered into between the landlord and 141 on or about December 19, 2008. Mr. Gualtieri provided a series of postdated cheques, however, 141 again defaulted. Accordingly, the landlord again retained the bailiff to exercise its right of distress and a Notice of Distress dated January 12, 2009 was posted at the Property. Mr. Gualtieri did not provide any more money. Mr. Marion tried to contact Mr. Gualtieri and Mr. Chehab a number of times, but never received a response. Accordingly, in January 2009, the bailiff secured the Property and changed the locks.

[20] According to Mr. Marion's evidence, in January 2009, Mr. Chehab came to the Property and told Mr. Marion that he was the owner of the goods. In addition, according to Mr. Marion's evidence, Mr. Chehab also told him around the same time that he had a security interest of some kind in the goods and that he would sue Mr. Marion if he removed or sold the goods.

[21] In January, February, March and April, 2009 there was an exchange of correspondence involving Lawrence Fine, Mr. Chehab, and Patrick Di Monte, the lawyer representing 174 in relation to matters arising from the landlord's distress. The following is a summary of this correspondence:

a. On January 14, 2009, Mr. Fine wrote to Mr. Chehab and he referred to Mr. Chehab's attendance at his office in December. Mr. Fine stated that he understood that Mr. Chehab had given notice of a general security agreement with respect to certain assets located in the unit, and he asked for a copy of this general security agreement "as a matter preliminary to do discussions as to the proper ownership and disposition of the purported security and application of proceeds of sale".

b. On February 24, 2009, Mr. Di Monte wrote to the bailiff and to Mr. Fine and advised that he represents 174, "the owners of a list of chattels and tenant fixtures located at [the Property]." He enclosed a list (the same list that was attached to the Duffy appraisal) and advise that his client would like to have access to the premises for the purpose of taking inventory and identifying his goods. Mr. Di Monte advised that he understood that the lease had been abandoned or terminated by the tenant or the landlord and that his client has no interest in the lease. He advised that 174 is not prepared to abandon or release its interest in the goods without adequate compensation.

c. On March 3, 2009, Mr. Fine responded to Mr. Di Monte and advised that the tenancy continues under the distress rights provided for in the lease and governing legislation. Mr. Fine referred to a telephone call with Mr. Chehab on January 30, 2009 and he wrote that he repeated in this call that the landlord required "documentary proof of his entitlement to the chattels which he claimed". Mr. Fine advised in this letter that this "is a contest between the landlord in possession under distress rights and as supposed secured party in certain chattels". He asked that if Mr. Di Monte wished to enforce his client's rights as they may be, that he do so "in the proper course and in the proper proof".

d. On March 3, 2009, Mr. Di Monte responded to Mr. Fine and advised that "[w]e shall provide the proof. I did not say that my client was asserting secured creditor status. Only ownership status." He asked Mr. Fine to prepare proof that 141 owned anything other than the lease.

e. On March 31, 2009, Mr. Di Monte wrote to Mr. Fine and enclosed a copy of the certified cheque dated December 12, 2007 for $80,000 and the Bill of Sale from RNA to 174. He also enclosed Schedule "A" to the Bill of Sale and asked whether Mr. Fine had had any success in re-leasing the premises "with or without my client's chattels". Mr. Di Monte advised in this letter that if Mr. Fine as no prospect, then his client "will remove his goods and chattels and try to recoup some of his losses".

f. On April 22, 2009 Mr. Di Monte wrote to Mr. Fine and he referred to previous correspondence and exchange of phone messages. He advised that his client had indicated that Mr. Fine's client is on the verge of selling the chattels for the sum of $30,000 and, if this is the case, that his client will look to the landlord for the full value of the chattels that "clearly belonged to my client". Mr. Di Monte advised of his client's intention to commence an application "virtually immediately". He advised that if the landlord changes its mind, his client will make arrangements to remove the equipment and store it off site.

g. On April 29, 2009, Mr. Fine responded to Mr. Di Monte's letter and advised that his client "continues to be a landlord in possession exercising is distress rights under a lease of the premises in which outstanding rent continues to accrue". Mr. Fine advised that the landlord's exercise of distress is supervised by the bailiff, and he provided a telephone number for the bailiff.

[22] Mr. Marion's evidence is that he and Mr. Chehab had many conversations about the goods and that he repeatedly told Mr. Chehab that if he paid the rental arrears for the Property, he could take the goods and do whatever he wanted with them, or he could continue on with the lease at the Property, and operate a business there using the goods. According to Mr. Marian's evidence, Mr. Chehab told him that he was not interested in running a business and that the goods were not worth very much. According to Mr. Marion, Mr. Chehab told him that he had been a silent owner of the company that owned the goods, and that he was trying to arrange for a buyer for the goods or for someone else to operate a business at the Property.

[23] Mr. Revin gave evidence that he met with Mr. Chehab and had a short conversation with him. He recalls that he was at the Property with Mr. Marion, and that Mr. Chehab went over to him and said that he owned the equipment. Mr. Revin's evidence is that he asked Mr. Chehab for proof of ownership, and that none was provided then or later.

[24] Mr. Chehab gave affidavit evidence and was cross-examined. He agreed that he met at the Property with Mr. Marion and one or two other people. He denied that he had said to Mr. Marion that he owned the goods at the Property or that he had a security interest in the goods. Mr. Chehab's evidence is that Mr. Marion's recollection is mistaken. He recalls saying that the goods belonged to 174. He said that he was part of an investment group that had invested money in RNA.

[25] Mr. Chehab's evidence is that commencing in early to mid-November, 2008 and continuing up to the holiday period in December, 2008 he was involved in negotiations on behalf of 174 with Mr. Gualtieri and his company for the sale of the kitchen manufacturing business located at the Property. His evidence is that he left for an overseas trip sometime around Christmas of 2008 and, while he was overseas, he was advised by Mr. Ladha that a potential deal was close to being finalized for the sale of the business to Mr. Gualtieri's company, and that he should prepare a general security agreement as most likely the deal would involve a vendor take-back loan.

[26] His evidence is that he prepared a draft general security agreement to be signed by 141 in favour of 174, and forwarded this to his client, 174. He also arranged for the registration of a PPSA financing statement against 141 in favour of 174 in anticipation of a deal being finalized which would involve vendor take-back financing. A PPSA financing statement was registered on December 31, 2008 and a copy of the verification statement was put into evidence. Mr. Chehab's evidence is that he was advised by Mr. Ladha in January 2009 that, in fact, no transaction was ever finalized or consummated between 174 and Mr. Gualtieri's company, 141, and that all of the subject equipment remained the property of 174. According to Mr. Chehab's evidence, he attended at the offices of Mr. Fine in mid-December, 2008 and confirmed with him that the goods had not been sold to 141 by 174, the parties were still in the process of negotiating a deal, and 174 remained sole owner of the goods.

[27] Mr. Fine did not give evidence at the trial, so Mr. Chehab's evidence about this meeting was not challenged by other evidence.

[28] Mr. Marion's evidence is that the goods were sold to a purchaser that he found through an ad posted on Kijiji. The bailiff obtained two valuations of the goods. The first valuation was done by Turnbull Appraisals & Liquidations and the report dated January 19, 2009 states that the liquidation value of the property is $10,500. The second valuation was done by Jim Gallant of J&S International Appraisals and Liquidations. According to the Gallant valuation, the liquidation value of the goods at the Property was $8,100.

[29] These two reports were put into evidence, but neither of the valuators gave evidence at trial. The Turnbull report lists 36 items and the Gallant report lists 33 items. The Duffy report had listed 62 items.

[30] Alex Marion gave evidence that he and his wife were told by a man named "Frank" that he was the father-in-law of Mr. Gualtieri's daughter who worked at the Property with Mr. Gualtieri in 2008. Mr. Marion's evidence is that "Frank" told him that in 2008 Mr. Gualtieri had been selling equipment and machinery from the Property after business hours. Liliana Marion gave evidence confirming this discussion. Mr. Marion also gave evidence that he went to the property in or around January 2009 and found Mr. Gualtieri inside with another person. His evidence is that Mr. Gualtieri appeared to be pointing to certain equipment or tools and indicating to the other person to take those items away. Mr. Marion escorted Mr. Gualtieri out of the Property and called the police.

[31] The landlord relies on this evidence in support of its position that some of the items listed in the Duffy appraisal must have been removed from the premises by Mr. Gualtieri.

[32] The goods were sold to the purchaser, Deronde Sales Inc. ("Deronde"), for a purchase price of $9,000 plus GST. A Bill of Sale dated June 23, 2009 was given by the bailiff that describes the goods as "all woodworking equipment, accessories and stock located at 6803 Steeles Ave. W., Toronto." The bailiff's charges were $2,971.24 and the balance of $6,951.26 was paid to the landlord.

Analysis

[33] Under s. 31(2) of the Commercial Tenancies Act, R.S.O. 1990, c. L.7, "a landlord shall not distrain on the goods and chattels of any person except the tenant or person who is liable for the rent, although the same are found on the premises ..." This is subject to qualifications that do not apply in this case.

[34] Therefore, if the goods were owned by 174 when they were sold to Deronde, the landlord's purported distress would not have been not lawful, and 174 would be entitled to an award of damages to be quantified based upon the value of the goods at the time of the sale.

[35] There are five issues that arise in this action:

a. Who owned the goods when they were sold to Deronde?

b. If the goods were owned by 174, what was the value of the goods when they were sold?

c. If the landlord is liable to 174 for damages, is the landlord entitled to set off lost rent against such damages?

d. If 174 is entitled to an award of damages, is it entitled to damages jointly against the landlord and the bailiff, as the landlord's agent?

e. Is either of the landlord or the bailiff entitled to an order for indemnification in relation to their respective crossclaims?

[36] Each issue is addressed in turn.

Who owned the goods when they were sold to Deronde?

[37] 174 provided evidence from Mr. Ladha that 174 purchase the goods from RNA and he provided supporting evidence through the Bill of Sale and the certified cheque for the purchase price in the amount of $80,000. Mr. Ladha's evidence is that 174 did not sell the goods to Mr. Gualtieri's company and that it remained the owner of the goods.

[38] The landlord submits that when the goods were sold, they belong to Mr. Gualtieri's company, 141. The defendant relies upon the following in support of this submission:

a. Registration of the financing statement under the PPSA showing 174 as the secured party and 141 as the debtor.

b. At the time that 141 was in possession of the Property under a lease with the landlord, it had possession and use of the goods.

c. In the course of this litigation, an undertaking was given by 174 to make inquiries in respect of the general security agreement and, if the general security agreement cannot be produced, to explain why. In response to this undertaking, 174, through its lawyer, advised on September 12, 2017 that the "General Security Agreement cannot be located. A search has been made and it cannot be located." The landlord submits that this response is an admission that a general security agreement was, in fact, entered into and that this answer shows that property in the goods was conveyed by 174 to 141. The landlord points out that it was not until April 5, 2018, when the affidavit of Mr. Chehab was served, that the landlord was told that there was only a draft general security agreement that was never executed.

d. 174 failed to produce financial statements and income tax returns. The landlord submits that I should draw an adverse inference from the failure of 174 to produce these documents and conclude that, had they been produced, they would not have been helpful.

[39] I find that Mr. Ladha's evidence that 174 purchase the goods from RNA for $80,000 is credible and supported by documentary evidence in the form of the Bill of Sale and the certified cheque in payment of the purchase price. I also accept his evidence that, although there were negotiations with Mr. Gualtieri, these negotiations were unsuccessful and did not result in a sale of the goods to Mr. Gualtieri or his company. I also find Mr. Chehab's evidence explaining why the financing statement was registered to be credible. Although the answer to the undertaking given in relation to the general security agreement was poorly worded, I do not find that this answer constitutes an admission that a signed general security agreement existed. Both Mr. Ladha and Mr. Chehab gave evidence that there was no executed general security agreement. As well, the fact that 174, a company that was formed for the purpose of purchasing the kitchen manufacturing business that operated from the Property, did not complete financial statements or income tax returns does not, in my view, support an adverse inference. Mr. Ladha explained that his accountant had advised him to wait for the conclusion of this litigation before completing financial statements for 174.

[40] The landlord did not call Mr. Gualtieri as a witness at trial to challenge Mr. Ladha's evidence.

[41] In the absence of any evidence to challenge the evidence of Mr. Ladha, I accept this evidence and find that 174 was the owner of the goods at the Property when they were sold to Deronde in June 2009.

If the goods were owned by 174, what was the value of the goods when they were sold?

[42] 174 submits that I should find that the goods that were sold to Deronde in June 2009 had a value of $80,000. 174 relies upon the evidence that this was the purchase price for the goods that were used in the kitchen manufacturing business by RNA when these goods were purchased by 174 in December 2007. Alternatively, 174 submits that if I find that some of the items that were listed on the Duffy appraisal were no longer at the Property when the landlord took possession of the goods in early 2009, I should find that the 36 items listed on the Turnbull valuation report should be assigned the low values for these items based upon the Duffy appraisal, and that I should find that the value of these items at the time of the sale was $43,990.

[43] I find that the goods that were sold to Deronde are the items listed in the Turnbull valuation report. There is evidence that some items may have been sold or otherwise removed from the Property after the date of the Duffy appraisal. I am satisfied that the Turnbull valuation report represents the best evidence of the goods that were at the Property when the goods were secured by the landlord.

[44] I do not agree that I can use the price paid by 174 to RNA as evidence of the value of the goods when they were sold on a liquidation basis to Deronde. 174 purchased the goods on an entirely different basis. 174 purchased the goods as part of its proposed purchase of the kitchen manufacturing business that was carried on by RNA in the expectation that the goods would continue to be used as part of this business.

[45] The appraisal that was performed by Duffy was done on the basis of the "present market value (in place-in use)" of the goods at that time. 174 never completed a purchase of the business on a going concern basis. The goods that were sold to Deronde were not sold as part of a sale of a going concern business, and I do not agree that the value of the goods should be assessed on this basis.

[46] The goods were sold to Deronde on an arm's length basis and they were sold together, in bulk.174 did not tender any evidence from an expert concerning the value of the goods, on the basis upon which they were sold to Deronde. In the Duffy report, Mr. Duffy states that disposal of the goods in a "bulk sale" would be reflected by a lower price. However, there was no evidence provided by 174 to show how much lower the price would be.

[47] In the absence of such evidence, 174 has not proven, and I am not able to find, that the value of the goods that were sold to Deronde exceeds the purchase price of $9,000 that was paid for them.

[48] I find that the value of the goods at the Property that were owned by 174 and sold to Deronde was $9,000.

If the landlord is liable to 174 for damages, is the landlord entitled to set off lost rent against such damages?

[49] The fact that the landlord suffered lost rental income from the property after the default by 141 during the period before 174 provided evidence of its ownership of the goods on March 31, 2009 does not give rise to a claim by the landlord against 174 for damages for loss of rental income. I was not provided with any authority that would support the application of the doctrine of set-off in these circumstances. I disagree with the landlord that the doctrine applies here.

[50] I conclude that the landlord has no right of set-off.

If 174 is entitled to an award of damages, is it entitled to damages against the landlord and also against the bailiff, as the landlord's agent?

[51] 174 submits that the bailiff acted as agent for the landlord and sold the goods, which were owned by 174, to Deronde. 174 submits that as the seller of the goods, the bailiff should be held jointly liable with the landlord.

[52] The bailiff submits that he did not know that the goods were not owned by the landlord's tenant, and that he acted properly by following the landlord's instructions and completing the sale to Deronde. The landlord agrees that the bailiff properly followed the instructions that were given.

[53] The bailiff received the February 24, 2009 letter from Mr. Di Monte in which he advised that the goods were owned by 174. The evidence of ownership consisting of the Bill of Sale and cancelled cheque for $80,000 was not provided to the bailiff with this letter. Nevertheless, the February 24, 2009 letter should have alerted the bailiff to make inquiries of the landlord concerning evidence of ownership of the goods before the bailiff completed the sale to Deronde but, on the evidence given, no such inquiries were made.

[54] The Bill of Sale whereby the goods were conveyed to Deronde is on the letterhead of the bailiff and the purchase price was to be paid to the bailiff, in trust. I conclude that the goods were sold by the bailiff, acting as the landlord's agent, to Deronde.

[55] An agent who commits a tort against a third person may be personally liable even if the wrongful act was committed by and with the authority of the principal and for the principal's benefit. The general rule is that all persons concerned with the commission of a tort are liable as principals: Canadian Encyclopedic Digest, Agency IX.3, para. 380.

[56] I conclude that the bailiff is jointly liable with the landlord to 174.

Is either of the landlord or the bailiff entitled to an order for indemnification in relation to their respective crossclaims?

[57] When the bailiff was first retained by the landlord to distrain the assets of 141 that were found at the Property for the arrears then owing, a Notice of Authorization and Indemnification Agreement was made dated December 11, 2008. Under this agreement, the landlord agreed to indemnify the bailiff against any and all losses, claims, damages and costs which may be made against the bailiff or suffered by him by reason of his acting under the direction of the landlord, and the landlord agreed to reimburse the bailiff and indemnify him for any and all legal costs incurred by him in defence of any claims for damages and for services performed under this direction.

[58] The landlord acknowledges that, at all times, the bailiff acted in accordance with the landlord's instructions.

[59] Although there was not a separate Notice of Authorization and Indemnification Agreement signed by the landlord when the bailiff was asked to act as the landlord's agent to exercise distress rights in January 2009, I am satisfied that, objectively viewed, the parties intended that this engagement would be on the same terms as the initial engagement in December 2008. I am satisfied that the terms of the bailiff's engagement by the landlord included the terms found in the Notice of Authorization and Indemnification Agreement, either expressly or by implication.

[60] I conclude that the bailiff is entitled to an order that the landlord indemnify it in full for its joint liability to 174.

Disposition

[61] For these reasons, I grant judgment as follows:

a. 1572482 Ontario Inc. and Revin Bailiffs Inc. are jointly liable to 1741347 Ontario Inc. for payment of the sum of $9,000, together with prejudgment interest from April 22, 2009 in accordance with the Courts of Justice Act.

b. 1572482 Ontario Inc. shall fully indemnify Revin Bailiffs Inc. for its liability for payment of the sum of $9,000 to 1741347 Ontario Inc.

c. The crossclaim of 1572482 Ontario Inc. against Revin Bailiffs Inc. is dismissed.

[62] If the parties are unable to reach agreement concerning the costs of this action, 174 may make written submissions within 15 days. The landlord and the bailiff may make responding submissions in writing within 15 days thereafter, including any submissions in relation to claims for costs (i) resulting from the discontinuance of the action as against Alex Marion and Lilia Marion, or (ii) of the bailiff's crossclaim. The landlord may make responding submissions in relation to costs of the bailiff's crossclaim within 10 days of receipt of the bailiff's submissions. 174 may make responding submissions to claims in relation to costs resulting from

the discontinuance of the action as against Alex Marion and Lilia Marion within 10 days of receipt of the landlord's submissions in this regard.

Cavanagh J.

Released: April 12, 2018

COURT FILE NO.: CV-11-417931

DATE: 20180412

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

1741347 ONTARIO INC., and SAMIRALI LADHA

Plaintiffs

– and –

1572482 ONTARIO INC., ALEX MARION, LILIA MARION and REVIN BAILIFFS INC.

Defendants

REASONS FOR JUDGMENT

Cavanagh J.

Released: April 12, 2018

1741347 Ontario Inc. v. 1572482 Ontario Inc., 2018 ONSC 2377

Case Summary

Introduction

Evidence at Trial

Analysis

Who owned the goods when they were sold to Deronde?

If the goods were owned by 174, what was the value of the goods when they were sold?

If the landlord is liable to 174 for damages, is the landlord entitled to set off lost rent against such damages?

If 174 is entitled to an award of damages, is it entitled to damages against the landlord and also against the bailiff, as the landlord's agent?

Is either of the landlord or the bailiff entitled to an order for indemnification in relation to their respective crossclaims?

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues