Court File and Parties

COURT FILE NO.: CV-17-575072 DATE: 2019-12-30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2200334 ONTARIO INC. c.o.b. TORONTO MOTORSPORTS PARK, Plaintiff AND: LANDMARK VEHICLE LEASING CORPORATION, Defendant

BEFORE: Cavanagh J.

COUNSEL: Rolf M. Piehler, for the Plaintiff David Winer, for the Defendant

HEARD: November 14, 2019

ENDORSEMENT

Introduction

[1] The plaintiff 2200334 Ontario Inc. c.o.b. Toronto Motorsports Park (“TMP”) brings this action against the defendant Landmark Vehicle Leasing Corporation (“Landmark”) seeking an order for payment out of court of amounts paid into court by Landmark pursuant to the provisions of the Repair and Storage Liens Act, R.S.O. 1990, c. R .25 (the “RSLA”).

[2] Landmark paid $30,358.06 into court in respect of TMP’s claim for repairs and it paid $6,012 into court in respect of TMP’s claim for storage of a 2006 Ferrari F430 Spyder automobile (the “Ferrari”). Each of TMP and Landmark seeks an order for payment to it of the amounts paid into court.

[3] For the following reasons, I conclude that TMP is entitled to payment out of court of the amount of $30,558.06 in respect of repairs, and that Landmark is entitled to payment out of court of the balance of the money that it paid into court in respect of storage.

Analysis

[4] The following issues arise in this action and counterclaim:

a. Did TMP have non-possessory liens under the RSLA against the Ferrari for amounts equal to the fair value of the repair and the fair value of the storage (determined in accordance with the applicable regulations) which became charges for such amounts upon payment of the amounts of $30,358.06 and $6,012 into court?

b. Was TMP required to comply with sections 56 and 57, subsection 58(1) and section 59 of the Consumer Protection Act, 2002 and, if so, did it fail to comply with these provisions such that, under s. 3(2) and s. 4(3) of the RSLA, no repairer’s or storer’s lien arose?

c. If TMP had non-possessory liens against the Ferrari which became charges upon the amounts paid into court:

i. Has TMP discharged its onus of showing the fair value of the repair of the Ferrari, determined in accordance with the applicable regulations and, if so, what is the fair value?

ii. Has TMP discharged its onus of showing the fair value of the storage of the Ferrari, determined in accordance with the applicable regulations and, if so, what is the fair value?

[5] I address these issues in turn.

a. Did TMP have non-possessory liens against the Ferrari as security for payment of TMP’s claims for repair and storage of the Ferrari which became charges upon the amounts paid into court pursuant to applications by Landmark under s. 24(1.1) of the RSLA?

[6] TMP received the Ferrari for repairs on or about May 20, 2016. It was towed to TMP’s premises by a towing company, Ultimate Roadside Assistance. The Ferrari was owned by Landmark and leased to Orion pursuant to a written lease dated October 1, 2010. Mr. Mammolitti, the President of Orion, had signed the lease on its behalf.

[7] When TMP received the Ferrari, it paid the towing charge of $1,073.50. Shortly after receiving the vehicle, Mr. Mammolitti attended at TMP and provided a copy of the vehicle permit which disclosed that Landmark was the owner of the vehicle and the plate was registered to Mr. Mammolitti.

[8] Mr. Mammolitti authorized TMP to prepare an estimate of the vehicle repairs and subsequently to conduct the repairs. A copy of the Auto Repair Order dated May 23, 2016 was introduced into evidence. In the field headed “Instruction”, the following handwritten notes are recorded:

• car towed in by ultimate road side ass.

Customer complains

• Car does not shift and revs high
• Brakes are making noise
• Engine runs very rough
• Steering vibrates a lot
• Head lights goes off sometimes

• Please have the car completely checked.

The signature field by which the work was to be authorized contains the words “taken over the phone” in handwriting. The handwritten notations were done by an assistant employed by TMP.

[9] TMP claims that it made repairs to the Ferrari and stored the Ferrari pursuant to authorizations given by Michael Mammolitti, the President of Orion. TMP issued an invoice to Mr. Mammolitti dated June 14, 2016 for the repairs to the Ferrari in the amount of $30,358.06. TMP issued invoices to Mr. Mammolitti dated July 31, 2016 and September 30, 2016 in the amounts of $4,678.20 and $6,203. 70, respectively, for storage charges. These were unpaid. Orion later became subject to a receivership order.

[10] TMP retained possession of the Ferrari until it was required to surrender possession of the Ferrari to the receiver of Orion pursuant to a court order. TMP registered claims for lien under the RSLA showing the Ferrari as collateral. Landmark, the owner of the Ferrari, obtained possession from the receiver. Landmark applied to the court and made payments into court of the amounts claimed by TMP. TMP commenced this action to recover its claims for repairs and storage of the Ferrari through an order for payment of the amounts paid into court.

TMP’s claims for repairs to and storage of the Ferrari

[11] TMP submits that pursuant to s. 24(13) of the RSLA, it has charges upon the amounts paid into court as security for its claims for repairs to and storage of the Ferrari and that it is entitled to payment of the amounts paid into court.

[12] Landmark submits that TMP did not have valid registered liens against the Ferrari because it registered claims for lien when it was not permitted to do so under the RSLA. Landmark submits that it paid amounts into court in exchange for discharges of valid registered liens and, under the RSLA, only when a valid registered lien is discharge upon a payment into court does a repairer or storer have a charge upon the amount paid into court. Landmark submits that if there is not a valid registered lien, there can be no valid substitutional charge upon the amounts paid into court. Landmark submits that TMP has no claim to the amounts paid into court. It asks for an order directing that the amounts paid into court be paid to it.

[13] I address the parties’ positions through my analysis of the applicable provisions of the RSLA as they apply in the circumstances of this case.

TMP initially had possessory liens while it retained possession of Ferrari

[14] Sections 3(1) and 4(1) of the RSLA provide that a repairer and a storer, respectively, has a lien against an article that the repairer has repaired or the storer has stored for the applicable amount specified in these provisions and the lien claimant may retain possession of the article until the amount is paid.

[15] A repairer has the right to sell an article that is subject to a lien upon the expiry of the statutory 60 day period in s. 3(3) of the RSLA. A storer also has a right to sell an article that is subject to a lien under s. 4(7) of the RSLA.

[16] TMP claims that it had possessory liens against the Ferrari under these provisions for the amounts claimed for repair and storage charges while it retained possession of the Ferrari.

[17] It is clear that TMP was entitled to claim possessory liens against the Ferrari while it was in TMP’s possession.

TMP had non-possessory liens when it surrendered possession of the Ferrari to the receiver

[18] Orion was placed into receivership and an order was made in the receivership proceeding on October 11, 2016 that TMP deliver the Ferrari to the receiver. TMP complied with this order and gave up possession of the Ferrari to the receiver on October 11, 2016. Sections 7(1) and (2) of the RSLA provide that when a lien claimant gives up possession it has, in place of the possessory liens, non-possessory liens against the article for the amounts claimed for repairs and storage.

[19] Under s. 7(3) of the RSLA, a non-possessory lien has priority over the interest in the article of any other person than a lien claimant who is claiming a possessory lien. Priority between or among non-possessory liens is determined according to rules of priority set out in s. 16 of the RSLA.

[20] TMP’s possessory liens were discharged under s. 5 of the RSLA when TMP surrendered possession of the Ferrari to the receiver on October 11, 2016. On that day, pursuant to s. 7(1) and (2) of the RSLA, in place of the possessory liens, TMP had non-possessory liens against the Ferrari for the amounts claimed for repairs and storage.

TMP’s non-possessory liens were not enforceable

[21] The RSLA provides in s. 7(5) that a non-possessory lien is enforceable only if the lien claimant obtains a signed acknowledgement of the indebtedness. TMP did not obtain such a signed acknowledgment from Mr. Mammolitti or anyone else and, consequently, its non-possessory liens against the Ferrari were not enforceable against the parties with which it contracted for repairs to and storage of the Ferrari (Orion and Mr. Mammolitti) or anyone else, including Landmark.

[22] Under s. 10(1) of the RSLA, a non-possessory lien is enforceable against third parties only if a claim for lien has been registered.

[23] In its submissions, Landmark uses the term “registered lien”. I regard this term to be imprecise and one that leads to confusion because it combines the meanings of the terms “lien” and “claim for lien”, as they are used in the RSLA. A lien under the RSLA is not the same thing as a claim for lien.

[24] A possessory lien or a non-possessory lien under the RSLA is an interest claimed in an article by a lien claimant, defined as a person who is entitled to claim a lien for the repair, storage, or storage and repair of an article. An article is defined as an item of tangible property other than a fixture. A possessory lien is enforceable without the need for a claim for lien to have been registered. A non-possessory lien is enforceable, except against third parties, without the need for a claim for lien to have been registered, provided the lien claimant obtains a signed acknowledgement of the indebtedness.

[25] A claim for lien is a document to be registered under Part II of the RSLA. Section 9(1) provides that a claim for lien shall contain the required information presented in the required format. This information includes the debtor’s name, the lien claimant’s name, the collateral classification and description and, where the collateral is a motor vehicle, the year, make, model and V.I.N. of the vehicle. Section 9(1.1) provides that a claim for lien may be tendered for registration by direct electronic transmission to the database of the registration system established under the Personal Property Security Act.

TMP was not permitted to register claims for lien under the RSLA

[26] Landmark did not contract with TMP for repair or storage of the Ferrari. Landmark is a third party for purposes of s. 10(1) of the RSLA. Even if TMP had obtained a signed acknowledgment of the indebtedness, unless TMP registered claims for lien under the RSLA, its non-possessory liens were unenforceable against Landmark. However, TMP was not permitted to register claims for lien because of s. 10(2) of the RSLA which provides that a claim for lien may be registered at any time after an acknowledgement of indebtedness has been signed. No acknowledgement of the indebtedness owed to TMP had been signed or was ever signed.

[27] TMP was not permitted to register claims for lien under the RSLA.

TMP registers claims for lien under RSLA

[28] Notwithstanding that it was not permitted to do so under the RSLA, on September 8, 2016, TMP registered a claim for lien under Part II of the RSLA in the amount of $30,000 in respect of its repair lien. On January 30, 2017, TMP registered a separate claim for lien in the amount of $4,500 in respect of its storage lien.

[29] Because no acknowledgment of indebtedness had been signed, TMP’s non-possessory liens were not enforceable pursuant to s. 7(5) of the RSLA. The registrations of claims for lien under the RSLA did not have the effect of making TMP’s non-possessory liens enforceable against Landmark or anyone else.

Landmark obtains possession of the Ferrari

[30] Landmark obtained possession of the Ferrari from the receiver on November 11, 2016 after paying charges for repairs to make the Ferrari driveable and receiver’s charges. Although this was not specifically addressed in the evidence, I presume that after obtaining possession, Landmark intended to sell the Ferrari.

Landmark applies to court under s. 24(1.1) of RSLA

[31] Section 12(1)(f) of the RSLA provides that if there is a non-possessory lien against a motor vehicle, upon a change of ownership of the vehicle the non-possessory lien is discharged and cannot be revived as an interest in the vehicle if a claim for lien was not registered before the change of ownership occurred. Had TMP not impermissibly registered claims for lien, Landmark would have been at liberty to sell the Ferrari and, upon the change in ownership, TMP’s unenforceable non-possessory liens would have been discharged. However, to the outside world, the registrations of claims for lien were notice that TMP appeared to have enforceable liens against the Ferrari, and a prospective purchaser would not know that TMP’s registrations of claims for lien were impermissibly made or that TMP’s liens were not enforceable. TMP’s registrations were, apparently, obstacles to Landmark’s ability to sell the Ferrari.

[32] Section 23(1) of the RSLA provides that any person may apply to a court for determination of the rights of the parties where a question arises with respect to, among other things, the amount of a lien or the right of any person to a lien, or any other matter arising out of the application of the RSLA. It was open to Landmark to apply to the court under this provision and ask for an order that TMP discharge the impermissibly made registrations of the claims for lien against the Ferrari. Then, upon the discharges of these registrations, Landmark would have been able to sell the Ferrari and, upon the change in ownership, TMP’s unenforceable non-possessory liens would have been discharged. Landmark did not bring such an application. Instead, it commenced two applications under s. 24(1.1) of the RSLA.

[33] In Part IV of the RSLA, s. 24(1.1) provides that where a claimant claims a non-possessory lien against an article, where the person who has possession of the article refuses to surrender it to its owner and where there is a dispute concerning (i) the amount of the lien, (ii) the amount of repair work that was authorized, or (iii) the right of the lien claimant to retain possession of the article, the owner may apply to the court in accordance with the procedure set in s. 24 of the RSLA to have the dispute resolved and the article returned.

[34] Landmark was in possession of the Ferrari. For this reason, the first precondition in s. 24(1.1) for an application to the court under this provision was not met. Nevertheless, Landmark commenced two applications under s. 24(1.1) of the RSLA naming Orion and TMP as respondents: one in respect of TMP’s storer’s lien and one in respect of TMP’s repairer’s lien.

In its applications under s. 24(1.1), Landmark pays into court the amounts of TMP’s claims

[35] Section 24(4) provides that the applicant (in this case Landmark) shall pay into court the full amount claimed by the respondent (in this case TMP) and, where this is done, the registrar of the court shall issue an initial certificate stating that the amount indicated in the certificate has been paid into court. Landmark obtained initial certificates in respect of each of its applications and it paid into court the amounts of $6,102 in respect to TMP’s claimed storer’s lien and $30,558.06 in respect to TMP’s claimed repairer’s lien.

[36] Section 24(6) provides that the applicant is required to give the initial certificate to the lien claimant and the lien claimant is required to release the article (unless it files with the court an objection within three days of receiving the initial certificate). TMP did not file a notice of objection after receiving either certificate. Landmark was in possession of the Ferrari, so the directions in the initial certificates requiring TMP to release the Ferrari to Landmark were unnecessary.

Until Landmark’s payments into court, TMP’s non-possessory liens were not discharged

[37] Until Landmark paid the amounts into court, TMP continued to have unenforceable non-possessory liens against the Ferrari. None of the circumstances identified in s. 12(1) of the RSLA, the occurrence of which results in the discharge of a non-possessory lien, had occurred.

[38] Section 12(1)(b) of the RSLA provides that a non-possessory lien is discharged and cannot be revived as an interest in the article upon payment into court under Part IV of the amount set out in the claim for lien.

Upon Landmark’s payments into court, each of TMP’s non-possessory liens was discharged as a right against the Ferrari – these liens became charges upon the amounts paid into court

[39] Section 24(13) of the RSLA provides that where the article is released to the applicant, the lien is discharged as a right against the article and instead becomes a charge upon the amount paid into court and where the respondent (in this case, TMP, the lien claimant) seeks to recover the full amount claimed to be owing, the respondent may commence an action to recover that amount. Under s. 24(14), the charge upon the money paid into court is discharged ninety days after the article was returned to the applicant unless, before the end of ninety days, the respondent has commenced an action to recover the amount claimed.

[40] The initial certificate that Landmark obtained in respect of TMP’s claim to a non-possessory storer’s lien is dated February 28, 2017. Landmark was in possession of the Ferrari on this date. The ninety day period for TMP to commence an action to recover the amount claimed began to run on February 28, 2017 in respect of the storer’s lien. The initial certificate in respect of Landmark’s application under s. 24(1.1) in relation to the repairer’s lien was not put into evidence, so I do not know the date it was issued. This is not material, because Landmark does not say that TMP’s action was commenced after the expiry of the relevant ninety day period.

[41] TMP commenced this action by a statement of claim issued on May 12, 2017, within the ninety day period.

[42] Pursuant to s. 24(13) of the RSLA, upon the payments by Landmark into court, TMP’s non-possessory liens were discharged as rights against the Ferrari and became charges upon the amounts paid into court.

b. Was TMP required to comply with sections 56 and 57, subsection 58(1) and section 59 of the Consumer Protection Act, 2002 and, if so, did it fail to comply with these provisions such that, under s. 3(2) and s. 4(3) of the RSLA, no repairer’s or storer’s lien arose?

[43] Section 3(2) of the RSLA provides that no repairer’s lien arises if the repairer was required to comply with sections 56 and 57, subsection 58 (1) and section 59 of the Consumer Protection Act, 2002 (“CPA”), if applicable, and the repairer has not done so. Section 4(3) of the RSLA similarly so provides in relation to a storer’s lien.

[44] The CPA applies in respect of all consumer transactions if the consumer or the person engaging in the transaction with the consumer is located in Ontario when the transaction takes place. According to s. 1 of the CPA, a “consumer transaction” means any act or instance of conducting business or other dealings with a consumer, including a consumer agreement. A “consumer” means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes.

[45] Landmark submits that although the lease was made out to Orion, the work order and invoice are made out to Mr. Mammolitti personally. On this basis, Landmark submits that Mr. Mammolitti was acting for personal purposes when he contracted with TMP for the repair of the Ferrari.

[46] The evidence is that the Ferrari was leased to Orion and that Mr. Mammolitti was the president of Orion. Mr. Mammolitti did not personally own or lease the Ferrari. In my view, the proper inference to be drawn from the evidence is that when Mr. Mammolitti approached TMP to undertake repairs to the Ferrari, he was acting as president of Orion, not in a personal capacity.

[47] I conclude that the repair and storage of the Ferrari did not involve a consumer transaction and, therefore, the CPA does not apply.

[48] TMP is not deprived of a repairer’s or storer’s lien pursuant to s. 3(2) or s. 4(3) of the RSLA.

c. If TMP had non-possessory liens against the Ferrari which became charges upon the amounts paid into court, has TMP discharged its onus of showing the fair value of the repair or storage of the Ferrari and, if so, what are the fair values?

[49] Section 3(1) of the RSLA provides:

In the absence of a written agreement to the contrary, a repairer has a lien against an article that the repairer has repaired for an amount equal to one of the following, and the repairer may retain possession of the article until the amount is paid:

1. The amount that the person who requested the repair agreed to pay.

2. Where no such amount has been agreed upon, the fair value of the repair, determined in accordance with any applicable regulations.

3. Where only part of the repair is completed, the fair value of the part completed, determined in accordance with any applicable regulations.

[50] Ontario Regulation 427/15 under the RSLA provides in section 1:

1.(1) In determining the fair value of the repair under paragraph 2 of subsection 3(1) of the Act or of the part of the repair under paragraph 3 of subsection 3(1) of the Act, the following factors shall be considered and may be included:

1. The repairer’s fixed costs, variable costs, direct costs and indirect costs.

2. The repairer’s profit.

3. Any other relevant factors.

(2) In determining the fair value of the storage or storage and repair under paragraph 2 of subsection 4(1) of the Act or of the storage and part of the repair under paragraph 3 of subsection 4(1) of the Act,

(a) the following factors shall be included,

(i) the expenses incurred by the storer in relation to the storage or storage and repair or storage and part of the repair of the article, including expenses related to insurance, transportation, labour, weighing and packing, and

(ii) all lawful claims for money advanced and interest on money advanced by the storer in relation to the article; and

(b) the following factors shall be considered and may be included,

(i) the storer’s fixed costs, variable costs, direct costs and indirect costs,

(ii) the store’s profit, and

(iii) any other relevant factors.

[51] In his evidence at trial, the president of TMP, Uli Bieri, testified that when TMP received the Ferrari for repairs on May 20, 2016, Mr. Mammolitti authorized TMP to prepare an estimate of the vehicle repairs and subsequently to conduct the repairs. Mr. Bieri gave evidence that he instructed a service advisor at TMP, Mike Vanni, to conduct an analysis and prepare an estimate. Mr. Vanni testified that he made notes on his inspection and prepared an estimate based on these notes.

[52] Mr. Bieri testified that he had a few conversations with Mr. Mammolitti and the estimate was given orally to him. There was no agreement on a maximum amount for the repairs. Mr. Bieri’s evidence is that the repairs which were authorized are detailed in an invoice dated June 14, 2016 for the total amount of $30,358.06 inclusive of labour, parts, oil, miscellaneous charges and HST.

[53] Mr. Vanni gave evidence on behalf of TMP. He is a Service Advisor and Manager with TMP and supervised the work done to the Ferrari in the summer of 2016. He is not a licensed mechanic. The two mechanics who did most of the work to the Ferrari and who are still employed by TMP did not give evidence at trial. Mr. Vanni’s evidence is that he instructed the two mechanics on the work to be completed and monitored and supervised the work as it was being conducted. Mr. Vanni testified that the mechanics did not use timesheets, but he kept records of the time they spent on repairs to the Ferrari. According to his affidavit, he took contemporaneous notes of the work being conducted and, when the work was completed, he provided the notes to TMP’s clerical staff who prepared the invoice. He testified that he recorded labour and materials in his notes.

[54] Mr. Vanni’s evidence is that TMP suffered a fire in 2018 and his notes for this job and many others were destroyed. I accept this evidence.

[55] TMP’s invoice shows that the following work was done: front and rear rotors; front and rear brake pads; front and rear brake calipers; brake oil; brake oil bleeding; brake service; replace 2 front wheels and tires (used); replaced both right side and left side catalysts; removed and replaced seized bolts; removed F1 actuator and hydraulic pump; replaced 2 hydraulic lines that had leaks. The amount invoiced for parts was $23,730.54 and the amount invoiced for labour was $3,135. In addition, $49 was charged for oil and there were $230 in miscellaneous charges.

[56] Lee Rauti, a former technician with Landmark, provided affidavit evidence on behalf of the defendant. Mr. Rauti’s evidence is that he is a licensed mechanic and he examined the vehicle and made handwritten notes of his examination. Mr. Roti’s evidence is that based upon his examination and notes, and the work which Landmark did on the Ferrari to have it pass the safety certification, he finds it unlikely that all of the work which the plaintiff claims was undertaken on the car was actually undertaken. Mr. Rauti’s work order with his notes were appended as an exhibit to his affidavit.

[57] According to Mr. Rauti’s affidavit, he recalls the following issues with respect to the work shown in TMP’s invoice: incorrect hardware in rear diffuser; play in front and rear upper and lower ball joints; incorrect brake pads, and brake pad sensors were missing; catalytic converters appeared original and they were old and tarnished (he expects that if work was done, he would have noticed because brand-new catalytic converters are shiny); F1 pump was leaking and the cover was missing it was not sitting on a bracket (as it should have been); F1 pump was not tightened down, and there was no indication that it had been rebuilt or replaced; the rubber seal on the roof seemed to be hanging improperly; the engine mounts were collapsed; the valve cover gaskets were leaking; the front tires did not match the rear tires; notes from a representative of Ferrari of Toronto indicate that the break petals felt “abnormally soft” and that a complete bleed of the brake fluid system was required to fix that; with respect to front and rear rotors (his view is that it would be highly unusual to replace a used rotor with another used rotor and the amount claim for this item seems excessive); The rims were bent and scuffed, even though TMP claims that they were replaced.

[58] The evidence shows that the F1 actuator and hydraulic pump were removed and sent to a subcontractor and later installed by Ferrari of Ontario. This supports Mr. Vanni’s evidence that the work involved in removing the F1 actuator and hydraulic pump was done.

[59] Mr. Vanni was cross-examined with respect to other work described in the invoice. He confirmed that the brake oil done was done. He disagreed that the brake pedals were abnormally soft, as indicated in notes taken by Ferrari of Ontario. Mr. Vanni confirmed that the catalytic converters were replaced. He denied that the engine mounts were collapsed and stated that he checked them personally. Mr. Vanni conceded that the front tires may not have matched the rear tires, because the tires and rims were used. Mr. Vanni confirmed that TMP rebuilt the brake calipers. He said that you do not need a new cover to rebuild the calipers; this is only on the outside. With respect to the rotors, Mr. Vanni could not recall whether TMP installed used rotors.

[60] I listened carefully to Mr. Vanni’s evidence, and I find that he gave his evidence truthfully. He conceded that the tires and rims were used, and he stated that he did not recall certain work that the invoice shows as having been done, such as whether used rotors were installed instead of new rotors. It is clear that the FI actuator and hydraulic pump were removed, because it was later replaced by Ferrari of Ontario.

[61] I accept Mr. Vanni’s evidence and find that TMP did the work shown on the invoice. The charges for parts were not shown to be excessive. The hourly rate charged for labour of $150 was not shown to be excessive.

[62] When I consider what is the fair value of the repairs undertaken by TMP, I conclude that the fair value is the amount on TMP’s invoice of $30,358.06.

[63] With respect to TMP’s claim for storage charges, Mr. Bieri gave evidence in his affidavit that he contacted Mr. Mammolitti to advise that the vehicle was ready to be picked up and Mr. Mammolitti responded that he would pick it up in due course and authorized indoor storage at $90 a day until such time as he was in a position to pay the invoice and pick up the vehicle. On cross-examination, Mr. Bieri agreed that he probably gave Mr. Mammolitti an estimate that the storage charge would be around “100 bucks” and that Mr. Mammolitti did not tell him verbally that he agreed, but he did not disagree.

[64] With respect to TMP’s charges for storage, I am not satisfied that TMP has discharged its onus of proving the amount that is a fair value for storage of the Ferrari. Mr. Bieri testified that TMP would not have charged for storage had its invoice been paid. TMP did not introduce evidence of any additional expenses to which TMP was put while the Ferrari was in its possession. TMP did not provide evidence of the amount that would be payable in the market for storage of the Ferrari.

[65] I conclude that TMP has failed to prove the fair value of its claim for storage charges. I disallow this claim.

Disposition

[66] For the foregoing reasons, I order conclude that TMP has a charge on the money that Landmark paid into court securing payment of the amount of $30,358.06. I order:

a. $30,358.06 be paid out of court to TMP.

b. The balance of the money that Landmark paid into court is to be paid out of court to it.

[67] If the parties are unable to settle costs, TMP may make written submissions within 20 days. Landmark may make written submissions in response within 20 days thereafter. TMP may make brief reply submissions, if so advised, within 5 days thereafter.

Cavanagh J.

Date: December 30, 2019