Court File and Parties

COURT FILE NO. CV-18-00608277-0000 DATE: 20210506 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: QUALITY TRUCK BODYSHOP INC. Plaintiff – and – ACEAR INC. and SCOTTISH & YORK INSURANCE CO. LIMITED Defendants

Counsel: Arkadi Bouchelev, lawyer for the Plaintiff Mark Mason, lawyer for the Defendant, Acear Ryan Tinney and Clarence Lui, lawyers for the Defendant, Scottish & York

HEARD: February 19, 2021

REASONS FOR DECISION

G. DOW, J.

[1] The plaintiff, Quality Truck Bodyshop Inc. (“Quality Truck”) operated by Edward Letichever, seeks summary judgment in the amount of $307,253.78 plus interest and costs for its arranging towing, tear down and storage fees along with other expenses claimed regarding the 2009 Volvo commercial truck owned by the defendant, Acear Inc. (“Acear”). The defendant, Scottish & York Insurance Co. Limited (“Scottish & York”) issued a policy of motor vehicle insurance pertaining to the Acear truck which was in place as of the date of the claim detailed.

Background

[2] On March 10, 2018, the owner of Acear Inc., Alexandr Avakimyan parked the Acear truck which was connected to a loaded trailer at the Husky Truck Stop at Kennedy Road, Mississauga. The trailer contained a load of Michelin tires with an invoice for $269,855.20 which were to be transported to Philadelphia the next day at the request of 1626745 Ontario Inc., a company operated by Marina Reznik. Her spouse is Edward Letichever, who in fact signed the Load Confirmation and Rate Agreement with Acear as part of assisting his spouse with her business.

[3] The Acear truck and trailer were not there the next day and reported stolen by Mr. Avakimyan to Peel Regional Police. The tractor was located on March 25, 2018 by Peel Regional Police without the trailer in an industrial area in Concord. It was damaged and oil had leaked out of it. Mr. Avakimyan contacted Mr. Letichever and retained him to clean up the oil leak and transport the Acear truck to Quality Truck’s premises at 31 Toro Road in North York. Mr. Avakimyan’s evidence was that he agreed to pay Quality Truck its requested fees for clean-up, towing and storage at $350.00 per day (Exhibit E to affidavit of Mr. Letichever sworn October 24, 2019). Mr. Avakimyan admits attending Quality Truck and observing the signs posted inside it with the storage rate indicated as well as a “$1,200.00 per Tow Rearrangement Fee” and a “$2,500.00 Administration Fee” for disputed storage and repair truck claims (Exhibit S of Edward Letichever’s affidavit sworn on October 24, 2019).

[4] Mr. Avakimyan also contacted his insurer, Scottish & York, who appointed Scott Smith of Crawford & Company to investigate and adjust the claim. As part of its claim against Scottish & York, Quality Truck relies on an exchange of emails between Steve Smith and Edward Letichever on April 25, 2018 where Steve Smith offers to pay Quality Truck’s invoice if two weeks of storage is deducted. Edward Letichever rejects that offer.

[5] Quality Truck has four service bays, only two of which are for general service. (The other two are for alignments and a spray booth). Each of the service bays are large enough to accommodate two trucks. Quality Truck claims it periodically was required to move the Acear truck it was storing inside the premises to service other vehicles. It had insufficient space in its yard to leave the Acear truck outside. In April, 2018, Quality Truck was also requested to remove parts or “tear down” the Acear truck as part of making it accessible for Scottish & York’s appraiser to inspect and determine whether it was cost effective to repair (or a total loss).

[6] On June 27, 2018, Edward Letichever and Steve Smith exchanged emails where Edward Letichever stateed he “won’t move a penny” on his invoices. Steve Smith advised that charging $350.00 per day for storage was “unprecedented” as the going rate was $100.00 to $125.00 per day. The 11 hours for tear down was “outrageous” and the clean up fee of $7,800.00 was “unsubstantiated”.

[7] By July 6, 2018, Scottish & York had concerns about the veracity of the claim and issued a Reservation of Rights letter to Acear. The claim was transferred back from Steve Smith at Crawford & Company to Scottish & York’s parent company, Aviva who delivered a second notice to Acear on August 2, 2018. This letter maintained the insurer was reserving it rights to dispute the claim and requested completion of required Proof of Loss documents to prove the claim. Under the heading “Important Notice”, Aviva advised Acear to “make immediate arrangements to have your vehicle moved to lessen the storage costs that you are currently responsible to pay. Only reasonable claims will be considered if we accept your claim.”

[8] The Statement of Claim in this action was issued November 5, 2018. It is one of three related claims. The second claim, CV-18-611756 has been commenced by 1626745 Ontario Inc. issued December 28, 2018 as against Acear Inc. and Scottish & York for the contents of the trailer as well as other damages, interest and costs. The third claim, issued March 8, 2019, CV-19-139520, in Newmarket is by Acear against Scottish & York for the damages arising from the alleged breach of the motor vehicle insurance contract between these parties.

[9] The Acear truck remained at Quality Truck until ordered to be removed by Justice Archibald on June 7, 2019. This occurred on June 25, 2019 at the instigation of Scottish & York. It was taken to a third party storage facility for preservation purposes.

[10] With the damages assessed by Scottish & York as beyond economic repair (known as a total loss), Mr. Avakimyan wished to retain the vehicle and reimburse Scottish & York for its salvage value.

[11] The following invoices, addressed to Acear detail this claim:

a) $22,663.28 to April 25, 2018 incorporating a $7,458.00 towing, service call and oil spill clean-up account, 11 hours of mechanical work at $96.00 per hour and 32 days of storage at $350.00 per day plus HST (Exhibits F & H of Edward Letichever’s affidavit sworn October 24, 2019);

b) $47,975.28 to June 28, 2018 adding the storage fees between April 25 to June 28 (Exhibit I of Edward Letichever’s affidavit sworn October 24, 2019);

c) $103,684.28 to July 22, 2018 adding storage between June 28 to July 22 plus 32 Tow Rearrangements since March 25 ($38,400.00) and an administration fee of $2,500.00 (Exhibit L of Edward Letichever’s affidavit sworn October 24, 2019);

d) $159,449.78 to September 30, 2018 adding storage between July 22 to September 30 and an additional 21 more rearrangements (Exhibit L of Edward Letichever’s affidavit sworn October 24, 2019);

e) $177,134.28 to October 31, 2018 adding storage to October 31 and 4 more rearrangements (Exhibit L of Edward Letichever’s affidavit sworn October 24, 2019); and

f) $307,253.78 as of June 25, 2019 adding storage between October 31 to June 25, 2019 and 17 more rearrangements (Exhibit Q of Edward Letichever’s affidavit sworn October 24, 2019.

[12] As noted above, the claim for “Tow Rearrangements” do not begin until the July 22, 2018 invoice. The 74 claims total $88,800.00 of the amount sought by Quality Truck. The only records that such Tow Rearrangements actually occurred was undermined by Edward Letichever’s evidence in cross-examination on his affidavit that he recorded the Tow Rearrangements on a table calendar which was subsequently disposed of by him.

Analysis

[13] On December 20, 2019, this matter appeared before me to schedule this motion and I declined to do so given the companion actions and the need for them to proceed at the same time. On November 3, 2020, my colleague, Justice Pinto permitted this motion be scheduled given no steps had been taken to transfer the Newmarket action to Toronto (or vice versa) and a consolidation motion originally returnable February 19, 2020 had been adjourned.

[14] Acear submits this motion should be dismissed on the basis it results in partial summary judgment. It relies on the three part test outlined in Malik v. Attia, 2020 ONCA 787 (at paragraph 62). That is:

i) determination of this case into several parts will prove cheaper to the parties;

ii) partial summary judgment will get the parties’ case in and out of the court system more quickly; and

iii) partial summary judgment will not result in inconsistent findings by the multiple judges who touch the divide case.

[15] Counsel for Acear submits this matter fails the first two tests. Regarding dividing the case into several parts proving cheaper, I was not provided with any evidence to support same aside from the existence of the claim for indemnity against Scottish & York it has commenced in Newmarket and apparently opposes being transferred to Toronto (or have the Toronto actions transferred to Newmarket). Should I proceed to determine the liability of Acear to Quality Truck and the quantum, Acear has an ongoing claim for indemnity against Scottish & York. Further, if I award an amount in favour of the plaintiff against Acear, Quality Truck may then have a direct claim for payment against Scottish & York under Section 258 of the Insurance Act, R.S.O. 1990, c. I.8. This will not “prove cheaper to the parties”. This will not “get the parties case in and out of the court system more quickly”.

Conclusion

[16] As a result, I agree this motion should be dismissed. Despite the direction from the Court of Appeal, I gave consideration to determining any issue which would not raise a risk of duplication or inconsistent findings in order to give some value to the time, effort and expense incurred by the parties and their counsel in preparing for and proceeding before me. Upon reflection, I concluded that it was not be appropriate in these circumstances to do so.

[17] Counsel for Quality Truck provided a Costs Outline in the amount of $26,476.15 inclusive of partial indemnity fees, H.S.T. and disbursements. Counsel for Scottish & York submitted a Costs Outline in the amount of $17,089.42 inclusive of partial indemnity fees, H.S.T. and disbursements. Counsel for Acear did not submit a Costs Outline advising it was not seeking costs. I would defer the awarding of costs to the judge that determines the issues between the parties.

Mr. Justice G. Dow Released: May 6, 2021