MOTION HEARD: 2021-06-18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANGELA DHILLON and NAVPREET DHILLON, Plaintiffs/Moving Parties
AND:
MOVE ME AGAIN TRANSPORTATION INC., SAFE BOUND MOVING AND STORAGE INC. and CEMAL OZTURK, Defendants/Responding Parties
BEFORE: Master Robert Frank
COUNSEL: Rocco Giordano Scocco, Counsel for the Plaintiffs/Moving Parties
Diane L. Evans, Counsel for the Defendants/Responding Parties
HEARD: 18 JUNE 2021
REASONS FOR DECISION
Overview
1This is a motion brought on by the plaintiffs on an urgent basis seeking relief under Section 104 of the Courts of Justice Act and Rule 44. Specifically, they seek an interim order for possession of their personal property.
2As outlined in my endorsement dated June 21, 2021, the Court accommodated an urgent hearing of the motion on June 18, 2021. At the hearing of the motion, counsel for the plaintiffs advised the Court that the urgency arose because it was the plaintiffs’ intention to transport the personal property that is in issue on this motion to Prince Edward Island on July 1, 2021. On the afternoon of June 21, 2021, counsel for the plaintiff notified the Court that the date provided was incorrect and that the plaintiffs’ intention was to move the property on June 23, 2021, not on July 1, 2021. Accordingly, due to the increased urgency, I released my June 21, 2021 endorsement with my Order with respect to the relief claimed by the plaintiffs and advised the parties that the reasons for that Order would follow. These are the reasons for my June 21, 2021 Order.
Factual Background and Parties’ Positions
3The plaintiffs have sworn affidavits in support of the motion and the defendants have filed responding affidavits. There is conflicting evidence and no cross-examinations have taken place. There is no dispute that the personal property in issue (the “Property”) is identifiable or that the plaintiffs are the owners of the Property.
4The Plaintiff’s position on this motion is that in January 2021 they received a quotation for moving services (the “Quotation”) from the Defendant, Safe Bound Moving and Storage Inc. (“Safe Bound”), for the relocation of their personal property from Brampton, Ontario, to Cornwall, Prince Edward Island. The Quotation from Safe Bound provided that the fee for the services would be $4,505.00 plus tax for a move of approximately 10,000lbs of household goods, charged at a rate of $0.44/lb. The Quotation provided for the move to be undertaken in two stages. The first move was to take place on February 24, 2021 (the “First Move”) and the second move would take place on June 23, 2021 (the “Second Move”). In between the two moves, the plaintiffs’ Property (the property that is in issue on this motion) would be stored by Safe Bound.
5On January 18, 2021, the plaintiffs paid a deposit of $400 to Safe Bound via two e‑transfers of $200. The Plaintiff’s evidence is that these payments were made to secure the offer under the Quotation.
6On January 18, 2021, after the deposits were paid, the plaintiffs received a booking confirmation email from Safe Bound. In that email, Safe Bound recommended that the plaintiffs complete an Excel spreadsheet of inventory and return it to Safe Bound.
7On February 16, 2021, the plaintiffs sent the completed Excel spreadsheet of inventory for the First and Second moves to Safe Bound via email. On the same day, Safe Bound acknowledged receipt of the inventory spreadsheet via email and confirmed that the Quotation remained unchanged.
8On February 24, 2021, the day of the First Move, movers attended at the plaintiffs’ residence in Brampton, Ontario, and loaded a truck with the plaintiffs’ Property. After loading the truck, the movers performed a walkthrough of the house to assess the remaining items for the Second Move.
9The evidence of one of the plaintiffs, Navpreet Dhillon (“Mr. Dhillon”), is that following the walkthrough the movers advised him that both the First and Second Moves were overweight and that the plaintiffs would have to pay an additional $700 to cover the overages, of which $300 would have to be paid immediately and $400 would have to be paid on the day of the Second Move. Mr. Dhillon’s evidence is that he was concerned about the weight overages given the Quotation and because the plaintiff had been assured by Safe Bound on February 16, 2021 that the first shipment was under 4,000lbs based on the completed itemized inventory list the plaintiffs had provided to Safe Bound.
10Mr. Dhillon deposed that the movers said they would not leave with the first shipment unless the $300 overage fee was paid immediately. He says that he paid the $300 fee because he felt as if he had no choice. Mr. Dhillon also deposed that the mover asked him to send the $300 payment for the overage to a personal email address for the mover rather than the email address to which Mr. Dhillon had sent the first two deposits. Mr. Dhillon paid the $300 to the mover’s email address via e‑transfer.
11Mr. Dhillon’s evidence is that before the movers left with the Property, they quickly presented him with a piece of paper that they had been writing on while loading the moving truck, and they asked Mr. Dhillon to sign it.
12Mr. Dhillon says he enquired about certain amounts that had been inserted on the document as the weights for the First Move and the Second Move, and that the movers explained that he did not need to worry about these numbers or the cost for destination area surcharge, scale fee, warehouse handling and storage fee. He says the movers assured him that the $700 would take care of these costs for both moves.
13Mr. Dhillon deposed that the movers assured him that they would clarify all of the information with “Head Office” and would advise them that the plaintiffs had already paid $300 for overages and that the remaining $400 would be paid on the day of the Second Move. He says that, based on these assurances, he quickly initialed each line of the document and signed it, as he was directed to do by the movers. He also deposed that when he requested a copy of the document and the defendants’ inventory list of the Property, he was told by the movers that, due to COVID-19, he would have to contact Head Office to obtain copies of those documents by email.
14The defendants’ position is that the document signed by Mr. Dhillon is a binding moving contract between Move Me Again Transportation Inc. (“MMA”) and the plaintiffs (the “MMA Moving Contract”). The defendants say that MMA was acting as a subcontractor for Safe Bound.
15The affidavit evidence of the Plaintiff Angela Dhillon (“Ms. Dhillon”) outlines various communications between the parties after the First Move on February 24, 2021. At first, the communications related to matters such as an adjustment to the final delivery date of the plaintiffs’ personal goods from the First and Second Moves (including the Property) to Prince Edward Island, and confirmation that Safe Bound would provide the plaintiffs with a certain number of complimentary moving boxes that the plaintiffs claim were included in the Quotation. The plaintiffs also made several requests for a copy of the document signed on February 24, 2021 and the defendants’ inventory list of the Property, as well as an invoice reflecting the $700 for the overage charges that had they had been advised about on February 24, 2021.
16By May 4, 2021, the plaintiffs became very unsatisfied with the responses they had received from Safe Bound and demanded that Safe Bound respond to their inquiries promptly. Soon thereafter, they engaged legal counsel who wrote to Safe Bound and, among other things, demanded a copy of the document signed on February 24, 2021 and confirmation of the amounts paid by the plaintiffs to that date. The letter indicated that if Safe Bound did not provide satisfactory responses, the plaintiffs would “infer that Safe Bound Moving no longer intends to fully honor the agreements, in which case the agreements will be rescinded”.
17In response to that demand, a paralegal acting on behalf of Safe Bound wrote to the plaintiffs on May 20, 2021 demanding payment of certain amounts from the plaintiffs, including a charge in the amount of $632.80 for storage. The letter stated that if the storage charge was not paid by 5:00 pm on the following day, May 21, 2021, legal action would be commenced against the plaintiffs.
18On May 21, 2021, the plaintiffs’ lawyer received an invoice from Safe Bound addressed to the plaintiffs in the amount of $4,880.75, which included a separate storage charge of $560 (before taxes). On that invoice, the plaintiffs were credited with a payment of $200 rather than the $700 the plaintiffs believed they had already paid. It also indicated that the plaintiffs were required to pay storage fees on a monthly basis and threatened legal action in the event of non-payment.
19The plaintiffs’ position is that the invoice contained a number of “irregularities” and that it was inconsistent with the Quotation, including a dramatically increased price from the Quotation. From this point forward, the plaintiffs took the position that they wished to rescind the agreement they had with Safe Bound in accordance with their rights under the Consumer Protection Act.
20The defendants assert that the Property was properly in their possession under the terms of the MMA Moving Contract which, as noted above, they assert is a binding agreement. They submit that the agreement between the parties followed two separate quotations provided by Safe Bound to the plaintiffs for moving and storage services, each of which was followed by a separate confirmation provided by Safe Bound. They submit that the first quotation was based on information provided to Safe Bound by the plaintiffs, and that the quotations expressly provide that the cost for the services was subject to change.
21The defendants’ also assert that prior to Mr. Dhillon signing the MMA Moving Contract, the driver of the moving truck explained to Mr. Dhillon the options for charges based on flat fee or scaled weight. They submit that the flat fee initially quoted was for 9,000 lbs, but it was lowered to 8,000 lbs at the request of the plaintiffs. They submit that Mr. Dhillon conferred with his wife and agreed to the flat rate option, signed the MMA Moving Contract, and initialled it where required.
22They also submit that the signed MMA Moving Contract provides for storage fees of $0.07 per lb per month, with the first 8 weeks storage free. They assert that they have not been paid for either the move or the storage costs, and they claim a storer's lien over the items under the Repair and Storage Lien Act (the “RSLA”) in the amount of $1,265 inclusive of HST.
Law and Analysis
(i) Are there substantial grounds to grant the plaintiffs the relief sought?
23The applicable provisions for interim recovery of personal property are codified in Rule 44 and Section 104 of the Courts of Justice Act. Considering first the requirements under Rule 44.01(1), I find that these are met by Plaintiffs. They have provided evidence of a detailed description of the Property, which is readily identifiable. They have set out the value of the goods. As noted above, there is no dispute that the property belongs to Plaintiffs.
24In terms of the legal test which the moving party must meet under Rule 44 and Section 104 of the Courts of Justice Act, the principles were recently considered in Gignac v. Move Me Again Transportation Inc., 2021 ONSC 3374 which referred to Clark Door of Canada Ltd v. Inline Fiberglass Ltd., 45 C.P.C (3d) 244. The applicable principles, including the “substantial grounds” hurdle which the plaintiffs must overcome, can be summarized as follows:
it is not contemplated that the Court at this stage should embark upon a trial of the issues raised but only require the plaintiff to show the facts upon which it bases its claim, and if these facts afford substantial grounds for the plaintiff’s claim, then the order should be granted;
the enquiry is limited to determining whether there are substantial grounds for the plaintiff’s allegations, which if proved, bring the case within the statute;
in terms of showing substantial grounds, since the order is only for interim recovery pending trial, the degree of proof is less than would be required on a motion for summary judgment. No final disposition of rights is being made;
the plaintiff must show more than a probability of success at trial or simply that the plaintiff is more likely to succeed than the defendant. The test is substantial grounds, not reasonable grounds or probable grounds;
As the order is more in the nature of a mandatory injunction and is a greater interference with responding parties’ rights than a prohibitive injunction, the substantial grounds test for interim recovery of property requires a high degree of assurance that the plaintiff will be successful at trial.
25As noted in Gignac and other case law, in assessing the substantial grounds test, I am not required to make any definitive findings of fact. Rather, I am assessing whether there are substantial grounds for the plaintiffs’ allegations.
26Applying the applicable principles to the evidence on this motion, I find that there are substantial grounds to grant the relief sought by the plaintiffs. On the facts before me, I find that the relationship between the plaintiffs and the defendants is governed by an agreement between the plaintiffs and Safe Bound which is based on the terms outlined in the Quotation and the related emails between the parties (the “Safe Bound Agreement”). The Quotation and the emails between the parties contained an offer by Safe Bound to the plaintiffs. The plaintiffs accepted the Safe Bound offer and there was consideration, including the deposits paid by the plaintiffs.
27In Gignac, a case with similar facts to those in the present matter, Master Josefo made the following findings, which I adopt as applicable to the present circumstances:
As I apply this law to the facts before me, I believe there are substantial grounds to grant the plaintiffs the relief sought. In my view, there is a substantial argument that the contract between the parties was formed not after all the possessions of the plaintiffs had been loaded onto the truck and when one of the movers handed Mr. Gignac a piece of paper, telling him to sign it… Rather, the contract was in my view most probably formed when, subsequent to reviewing the quote received, the plaintiffs provided a deposit to book the move. The deposit was accepted. This to me seems equivalent to “offer”, “acceptance”, and “consideration”, thus leading to the formation of a consumer contract. The contract accordingly was based on the quote and formed at that time.
It would seem counter-intuitive to modern consumer protection principles and legislation, such as the Consumer Protection Act in Ontario, to hold that only after four hours of loading the moving truck, once all the possessions of the plaintiffs were out of their control, could a contract be formed. Perhaps if there never had been any quotation or assurances given, as well as a deposit (consideration) earlier provided; yet such circumstances would likely be actually rare.
28Further, I find that the MMA Moving Contract is not a binding agreement between the plaintiffs and MMA. In this regard, I note that although the MMA Moving Contract was signed by Mr. Dhillon:
a. MMA was not a party to the Quotation or the Safe Bound Agreement.
b. There is no evidence of any prior notice to the plaintiffs that the move would be performed by MMA and not Safe Bound, in whole or in part.
c. The is no reference to MMA in the Quotation or any of the related email correspondence.
d. Just like in Gignac, the MMA Moving Contract was presented to Mr. Dhillon at a time when the Property had already been loaded onto the moving truck. In addition to the pressure being applied to Mr. Dhillon at that time (due to the fact that the Property had already been loaded on the moving truck), there is no evidence that Mr. Dhillon was alerted to the fact that the counterparty in the document was MMA rather than Safe Bound.
29In summary, I find that there are substantial grounds for finding that the contract formed, the Safe Bound Agreement, was based on the Quotation and related email correspondence (including the email from Safe Bound after the inventory list was sent confirming the price) and the deposit made by the plaintiffs. The terms of the Safe Bound Agreement included a price of $4,505.00 plus taxes. There was no breakdown of cost as between the First Move and the Second Move and there was no separate cost for storage of the Property in between the moves. For the purposes of this motion, I find that the MMA Moving Contract is not a binding agreement between the parties; it was signed after the goods had been taken from the house and loaded onto the truck and without the plaintiffs having any real opportunity to review the contract and compare it to the terms in the Quotation.
(ii) Does the Repair and Lien Storage Act apply so as to make Rule 44 Inapplicable?
30Unlike Gignac, in this case the defendants raised a threshold issue as to whether Rule 44 is applicable in the circumstances. In this case, the defendants submit that:
a. Safe Bound is a “storer” of the Property as defined under the RSLA;
b. the RSLA applies and is a complete code such that relief under Rule 44 is not available to the plaintiffs; and
c. the appropriate remedy for the plaintiffs is an application under s. 24 of the RSLA.
31In support of their position, the defendants rely on the cases of Krates Keswick Inc. v. Brian Miller, 2018 ONSC 1976 and Whitter v. A&C Moving & Storage Ltd., 2017 CanLII 59241 (ON SCSM). For the following reasons, I find that both Krates Keswick and A&C Moving and Storage are distinguishable from the present case and that the RSLA is not applicable in the circumstances.
32As noted above, I find that the applicable agreement is Safe Bound Agreement, including the terms outlined in the Quotation and related email correspondence. The fundamental nature of the agreement between the parties was a moving contract and not a storage contract. The price for services under the Quotation does not provide any specific charge for storage. There is nothing in those terms that identified the agreement as a storage agreement. For purposes of this motion, I find that there was no separate term in the Quotation that Safe Bound would be paid for storage and I find that storage was included in the price of the move. As a result, I find that both Krates Keswick and A&C Moving and Storage are distinguishable; the fundamental nature of the agreement in each of those cases was one of storage or repair and storage, whereas the Safe Bound Agreement was fundamentally a moving contract.
33This is important because under the RSLA, “storer” is defined as follows:
“storer” means a person who receives an article for storage or storage and repair on the understanding that the person will be paid for the storage or storage and repair, as the case may be. (“entreposeur”) R.S.O. 1990, c. R.25, s. 1 (1); 2014, c. 9, Sched. 4, s. 1.
34For purposes of this motion, I find that there was no understanding between the parties that the defendants would be paid for the storage of the Property. As such, neither of the defendants is a “storer” as defined in the RSLA and neither is able to assert a storage lien under the RSLA. In reaching this conclusion, I note that if MMA or Safebound were a “storer” to be paid under the RSLA, there would have to be a mechanism for calculating the storage cost. Otherwise, the owner of the property would have no means of paying the cost to get the goods out of storage as provided under section 24 of the RSLA. Counsel for the defendants points to the MMA Moving Contract and asserts that it contains a term for storage costs. As noted above, I find that the MMA Moving Contract is not a binding agreement and that the contractual relationship between the parties was governed by the Safe Bound Agreement (including the terms outlined in the Quotation). Counsel for the defendants points to language in the Quotation about storage being available and indicating that 8 weeks of storage would be free of charge. I find that this provision is too vague to form a binding term that the plaintiffs would pay the defendants for storage between the First Move and the Second Move. Nowhere is the cost of storage broken out, and I find that there was no term in the Safe Bound Agreement pursuant to which the plaintiffs were required to pay for storage.
35The defendants provided no explanation why Safe Bound did not provide to the plaintiffs any further contractual documentation or supplemental terms for storage fees, or otherwise. Defendants’ counsel submitted that this was not possible because the precise terms were unknown until after the goods were picked up and loaded onto the truck. I disagree. Provision could have been made for calculation of the cost based on weight, volume, and length of time in storage.
36In addition, even if the defendants could meet the test of showing that the Property was being stored with an understanding that the plaintiffs would pay for the storage, I find that on equitable grounds the RSLA should not apply; see Kew v. Konarski, 2020 ONSC 4677, 2020 CarswellOnt 11052, at paras. 53-54, 61-74 and 79.
37In summary, I find that the RSLA does not apply and relief under Rule 44 is available to the plaintiffs.
Applicable terms for the relief granted and costs
38Having found that there are substantial grounds for granting the relief sought, I must assess the appropriate terms for such an order. The plaintiffs seek return of the Property without any payment to the defendants. I find that such an order would not be appropriate in the circumstances. The defendants moved the plaintiffs’ Property out of their home in Brampton and stored it from February 24, 2021 until close to the end of June 2021. The plaintiffs wanted the Property out of their home as part of the First Move, and they gained that benefit. As a result, some payment is appropriate as a condition to an order for interim possession of the Property.
39The price in the Quotation was for the First and Second Moves. That was to include the following:
a. pick-up of the Property as part of the First Move and the transport of the Property from Brampton to the defendants’ warehouse pending the Second Move;
b. pick-up of additional personal property from the plaintiffs’ home in Brampton as part of the Second Move; and
c. transportation of all the goods to Prince Edward Island where they were to be unloaded in the plaintiffs’ new home.
40The Quotation does not break down the cost of the First Move and the Second Move. Further, as noted above, it does not provide any specific cost for storage, which I have found was included in the moving costs. However, as noted above, the First Move occurred, and the plaintiffs have received the benefit of that move. Further, although I find that this was not a contract of storage for purposes of the RSLA, the plaintiffs benefitted from storage for a period of four months. While there was some evidence that under the MMA Moving Contract the plaintiffs were to receive eight weeks of storage without charge, I have found that the MMA Moving Contract is not binding and, in any event, it contemplated a host of other services that will no longer be provided and payments that will no longer be made. However, I find that the non-binding MMA Moving Contract provides a reasonable proxy of the value of the storage, i.e. $0.07/lb per month. Based on that rate and assuming the Property weighed 4,000 pounds and was stored for four months, the cost for storage is $1,120 plus HST.
41There was also a cost for moving the Property out of the plaintiffs’ house on February 24, 2021 and delivering it to the defendants’ warehouse for storage. For purposes only of this interim order, I am reducing the overall price to account for the fact that Property moved in the First Move was approximately half of the total that was to be moved (i.e. 4000 pounds instead of 10,000 pounds). As well, the price for the entire move included transport to Prince Edward Island and the work to bring the transported goods into the plaintiffs’ new home in Prince Edward Island. For purposes of this motion, I approximate the Toronto move (the First Move) as 1/3 of the contract price, the transportation to Prince Edward Island as 1/3 of the contract price, and the work to bring the transported goods into the plaintiffs’ new home in Prince Edward Island as 1/3 of the contract price.
42On the above basis, which I recognize is a rough formula for assessing the cost of the First Move, I have approximated the value of the moving services received by the plaintiffs as follows:
a. Cost of the total move is $4,500 plus a 10% maximum overage = $4,950 plus HST
b. Remove 50% of the total cost as the Second Move did not occur, i.e. leaving a cost of $2,475 plus HST
c. Given that the Property was only moved to the defendants’ warehouse and not to Prince Edward Island or into the plaintiffs’ new home, a further 2/3 of the cost should be removed, leaving a charge of $825 plus HST for the First Move.
43Therefore, for purposes of the interim order, I find that the amount owing by plaintiffs to the defendants is $1,120 in storage costs and $825 for the First Move for a total of $1,945 plus HST, which is equal to $2,197.95. I have rounded this amount to $2,200.
44From this amount, the following credits are applicable. First, the plaintiffs made two deposits of $200, one for the First Move and one for the Second Move. As well, the plaintiffs made a payment of $300 by e‑transfer to one of the movers on February 24, 2021. The defendants take the position that the $300 was a tip paid to the movers rather than payment toward the overage for the First Move. For the purposes of this motion, I accept the evidence of the plaintiffs that the $300 was paid toward the overage charges. This is consistent with the language used by the plaintiffs in their correspondence with Safe Bound even before there was a breakdown in the parties’ relationship. I also find that for the purposes of this motion, the plaintiffs should get credit for the $200 deposit paid in connection with the First Move but not for the deposit for the Second Move. The plaintiffs have decided not to proceed with the Second Move and the Quotation provides that in the event the move is cancelled the deposit will be lost. As a result, I am not prepared on an interim basis to credit the plaintiff with the payment of the $200 deposit relating to the Second Move since no property was picked up and the claim for interim possession is not based on the Second Move. The plaintiffs also claim a credit for certain moving boxes they allege were promised to be included as part of the Quotation. Given that the plaintiffs have decided not to proceed with the Second Move, I am not awarding any credit to the plaintiffs for the moving boxes for the purposes of this motion. Therefore, I order that the total credit to the plaintiffs is $500, i.e. the first $200 deposit with respect to the First Move and the $300 payment made on February 24, 2021, which I find was made in connection with the weight overage for the First Move.
45Finally, I will deal with the issue of costs of this motion. The plaintiffs’ sought and obtained an order entitling them to interim possession of the Property. In that respect, they have been successful on the motion and, based on their costs outline, they are seeking costs in the amount of $3,559.50 on a partial indemnity basis and $5,932.50 on a full indemnity basis.
46In fixing costs, I note that the plaintiffs’ position on the motion was that they should not be required to make any payment to the defendants in order to obtain interim possession of the Property. Further, they brought this motion with the minimum notice possible, and the allegations of fraudulent misrepresentation on the motion raised the level of acrimony beyond that of a breach of contract claim, or even an unfair business practice claim under the Consumer Protection Act. On the other side of the ledger, the defendants were unsuccessful in their assertion that the RSLA applies and took the position that the relationship between the parties is governed by the MMA Moving Contract, which I do not accept for purposes of this motion. The positions taken by both parties complicated the issues before the Court on the motion. On balance, I award costs to the plaintiffs fixed in the amount of $1,000 inclusive of fees, disbursements and taxes.
Disposition
47In summary, I find that the plaintiffs owe the defendants $2,200 in connection with the First Move and the storage of the Property. Against that, the plaintiffs are credited $500 in prior payments and $1,000 in costs. As provided in my Endorsement dated June 21, 2021, this leaves the net amount of $700 owing by the plaintiffs to the defendants in order for the plaintiffs to obtain interim possession of the Property.
48As this is an interim order under Rule 44, it is then open to the parties to determine whether and how they wish to proceed with the underlying action.
Master Robert Frank
Date: 19 July 2021