Court File and Parties

COURT FILE NO.: CV-21-00663829 DATE: 20211123 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JASON CHAPNIK, TRAILS END CANADA INC., WETRUST INC. and JODI CHAPNIK Plaintiffs AND: MARIA STAVROPOULOS, PANAGIOTIS STAVROPOULOS, JOANNA STAVROPOULOS, DENNIS STAVROPOULOS, MICHAEL RATCHFORD, THE COVE INVESTMENTS LTD., 2046324 ONTARIO INC. and 1152617 ONTARIO INC. Defendants

BEFORE: Chalmers, J.

COUNSEL: A. Speigel, for the Plaintiffs

HEARD: In Writing

Endorsement

[1] This action arises out of the purchase of four recreation properties located at 76, 84, 89 and 91 Trails End, Seguin, District of Parry Sound. (the Properties). In April 2021, the Plaintiffs purchased the Properties from the Defendants, Maria, Panagiotis, Joanna and Dennis Stavropoulos (the Stavropoulos Defendants). The Plaintiffs argue that the purchase of the Properties included all the chattels found on the Properties including a 2005 Sea-Doo boat (the Boat).

[2] Before purchasing the Properties, Jason Chapnik toured the Properties. He saw the Boat docked at one of the properties. The Agreement of Purchase and Sale provides that the sale includes all chattels as viewed on the property as of March 31, 2021. There is no specific reference in the Agreement of Purchase and Sale to the Boat. There is no Bill of Sale that specifically references the Boat.

[3] On May 3, 2021, following the purchase of the Properties, the lawyer for the vendors (Stavropoulos Defendants) sent an e-mail to the lawyer for the purchasers and raised the issue of the Boat. He advised that the Boat is owned by a neighbour, Michael Ratchford. With the agreement of the Stavropoulos Defendants, Mr. Ratchford had stored the Boat over the winter in the boathouse at 76 Trails End. The lawyer for the vendors, attached the Pleasure Craft Licence which indicates that Mr. Ratchford is the owner of the Boat. The Pleasure Craft Licence is dated April 15, 2021, two days after the date of the closing of the sale of the Properties.

[4] The Plaintiffs insisted on the keys to the Boat. The Stavropoulos Defendants refused. On May 13, 2021, the Plaintiffs had the Boat dropped off at The Cove Marina (the Marina) to program a new key for the Boat. Mr. Ratchford learned that the Boat was at the Marina. On May 15, 2021, he attended at the Marina and asked the Marina to release the Boat to him. The Plaintiffs were contacted. The Plaintiffs asked that the Marina hold the Boat. The Marina released the Boat to Mr. Ratchford.

[5] The Plaintiffs caused the Statement of Claim to be issued on June 10, 2021. The Plaintiffs seek a declaration that the Boat be immediately returned to them, or in the alternative damages of $25,000. The Plaintiffs also seek damages of $25,000 for the rental of a replacement boat. The Plaintiffs also claim $15,000 in punitive damages.

[6] The Statement of Claim was served on the Stavropoulos Defendants on June 14, 2021 and on Mr. Ratchford on June 10, 2021. The Claim was served on the Marina on June 11, 2021. Statements of Defence were not delivered. Mr. Ratchford and the Marina were noted in default on August 6, 2021. The Stavropoulos Defendants were noted in default on September 10, 2021.

[7] The Plaintiffs moved for Default Judgment. The matter came before Justice Myers in Short Motion Triage. By endorsement dated October 8, 2021, he ordered the Plaintiffs to serve the Motion Record on the Defendants along with a copy of his endorsement and the form of Judgment sought by the Plaintiffs. Justice Myers specifically ordered that the Affidavit of Service should provide particulars to allow a judge to find that the Defendants received the Statement of Claim and the motion record or otherwise know about the lawsuit.

[8] Justice Myers ordered the material to be served by October 15, 2021. The Defendants had until November 5, 2021 to respond. If no response was received, the motion was to proceed in writing the week of November 15, 2021.

[9] Following receipt of Justice Myers endorsement, counsel for the Plaintiffs sent an e-mail to lawyer, Peter Jervis. Mr. Jervis had previously indicated that he had been retained to represent the Stavropoulos Defendants. He did not formally go on the record for the Stavropoulos Defendants. In the e-mail, counsel for the Plaintiffs states that in an earlier discussion Mr. Jervis had confirmed that he will accept service of the motion materials on behalf of the Stavropoulos Defendants. There was no response from Mr. Jervis to the e-mail.

[10] Claudia Lapa, a law clerk with the Plaintiffs’ counsel’s office sent an electronic version of the Motion Record to Mr. Jervis. She also sent the Motion Record to lawyers, Nicholas Reinkeluers and Daniel Wyjad. The Plaintiffs take the position that Mr. Reinkeluers is counsel for Mr. Ratchford and Mr. Wyjad is counsel for the Marina. According to the Record of Service, the electronic Motion Record was delivered to counsel on November 10, 2021.

[11] I am not satisfied that sending the Motion Record to the lawyers complies with Justice Myers’ endorsement. In the Short Motion Requisition Form, counsel for the Plaintiffs state that the Stavropoulos Defendants and Mr. Ratchford are self-represented. No lawyer has gone on record for the Defendants. There is no correspondence in the Motion Record from either Mr. Reinkeluers or Mr. Wyjad.

[12] Justice Myers ordered the Plaintiffs to serve the Defendants. If there is no lawyer of record, the documents must be served on a party either personally or by an alternative to personal service, pursuant to R. 16.01(4)(b). Delivery of documents to lawyers who are not counsel of record is not proper service.

[13] I direct counsel for the Plaintiffs to serve the Motion Record, a copy of the Endorsement of Justice Myers dated October 8, 2021, a copy of this endorsement and a copy of the Draft Judgment, on the Defendants either personally or by an alternative to personal service. Service is to be completed by November 26, 2021. The Plaintiffs shall file the Affidavit of Service with the court. If the Defendants intend to respond to the Motion for Default Judgment, they are required to advise counsel for the Plaintiffs by December 6. 2021. If no response is received by that date, the motion will proceed in writing the week of December 13, 2021.

[14] I remain seized.

DATE: November 23, 2021