Court File and Parties

Court File No.: CV-20-00646048 Date: 2021-02-22 Superior Court of Justice – Ontario

Re: Drive Auto Group Inc., Plaintiff

And: David Hay Limited c.o.b. Fix Auto Richmond Hill, 9743839 Canada Limited c.o.b. Fix Auto Thornhill, 2508774 Ontario Ltd. c.o.b. Fix Auto Oak Ridges, 9033955 Canada Limited, c.o.b. as Collision Repair Experts Toronto North, Doublesee Collision Etobicoke Inc. c.o.b. as Collision Repair Experts Toronto West and as Collision Repair Experts, 2635063 Ontario Ltd. and Amir Tajbakhsh c.o.b. as Collision Repair Experts Toronto, Defendants

Before: Mr. Justice Chalmers

Counsel: P. Feldman, for the Plaintiff R. Quance and K. Lee, for the Defendants/Responding Parties, David Hay Limited c.o.b. Fix Auto Richmond Hill, 9743839 Canada Limited c.o.b. Fix Auto Thornhill, 2508774 Ontario Ltd. c.o.b. Fix Auto Oak Ridges, 9033955 Canada Limited, c.o.b. as Collision Repair Experts Toronto North, 2635063 Ontario Ltd. and Amir Tajbakhsh c.o.b. as Collision Repair Experts Toronto

Heard: February 22, 2021, by videoconference

Endorsement

[1] The Plaintiff is a group of auto dealerships that supplied auto parts to the Defendants, David Hay Limited c.o.b. Fix Auto Richmond Hill, 9743839 Canada Limited c.o.b. Fix Auto Thornhill, 2508774 Ontario Ltd. c.o.b. Fix Auto Oak Ridges, 9033955 Canada Limited, c.o.b. as Collision Repair Experts Toronto North, and 2635063 Ontario Ltd (the “Corporate Defendants”). The Corporate Defendants operate auto body repair facilities in the Greater Toronto area. The Plaintiff alleges that the Defendant, Amir Tajbakhsh is the guiding mind of the Corporate Defendants.

[2] The Corporate Defendants ordered product from the Plaintiff. The sales were subject to a credit application which was entered into on November 3, 2017. The credit application provides that a 2% service charge per month may be charged on unpaid invoices after 30 days.

[3] By October 31, 2019, the Plaintiff was owed $279,431.97. In February 2020, the Corporate Defendants proposed a payment schedule for the overdue accounts. A number of post-dated cheques were provided to the Plaintiff. The Plaintiff agreed to the deferred payment schedule on the understanding that if there was a default of any payment, the total amount owing would immediately become due. Two of the payments were made. As of the date of this motion, the sum of $260,720.56 remain outstanding.

[4] The Plaintiff brought a motion for Summary Judgment against all Defendants. On the morning of the motion, counsel advised that there was a partial settlement. The Corporate Defendants consented to a Judgment in the amount of $260,790.56, subject to the determination by this court of the issues of pre-judgment interest and costs. The motion with respect to Mr. Tajbakhsh is adjourned on consent.

[5] I heard submissions of the parties on the issues of interest and costs.

[6] The Plaintiff argues that the Credit Application signed on November 3, 2017, sets out the interest rate of 2% per month commencing 30 days from the date of the invoice. All invoices pre-date October 31, 2019. The Plaintiffs are seeking interest from December 1, 2019. The Corporate Defendants argue that the invoices which establish the interest rate of 2% per month are not in evidence on this motion. He conceded that the Credit Application is in evidence and sets out the terms with respect to interest payable on unpaid accounts.

[7] I am satisfied that the parties agreed in the Credit Application that interest on unpaid accounts is in the amount of 2% per month commencing 30 days from the date of the invoice. The Corporate Defendants did not refer to any evidence to support their position that the interest/service charge set out in the credit application was not binding on the parties. I order pre judgment interest on the amounts owing at the rate of 2% per month from December 1, 2019.

[8] It is my view that the issue of costs with respect to obtaining judgment against the Corporate Defendants is bound up with the motion against Mr. Tajbakhsh. I reserve the issue of costs to the Summary Judgment motion against Mr. Tajbakhsh.

[9] The Summary Judgment motion against Mr. Tajbakhsh is adjourned on consent to April 22, 2021. I remain seized.

[10] Order to go in accordance with the draft Judgment filed and signed by me.

Date: February 22, 2021