CWB NL Financial Inc. v. Concord Paving Inc. et al.
COURT FILE NO.: CV-19-00003688-0000
DATE: 2021-12-22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CWB NL Financial Inc., Plaintiff
AND:
Concord Paving Inc., Silvercon Paving Inc., Orazio Drogo
and Calogero Gulizia, Defendants
BEFORE: Kurz J.
COUNSEL: David Downs, for the Plaintiff
Brian Sherman, for the Defendants
HEARD: December 9, 2021
ENDORSEMENT
[1] The Plaintiff (“CWB”) moves for summary judgment against the corporate Defendants for unpaid amounts owing on leases for three pieces of equipment and against the personal Defendants for their personal guarantees for payment of all outstanding amounts owing on those leases.
[2] The Defendants argue that there are genuine issues for trial in this action as follows:
There was a fundamental breach of the three leases because two of the leased prices of equipment were defective and not fit for their purpose.
CWB failed to mitigate its damages by failing to seize the two defective pieces of machinery (“the Bobcats”), even when the Defendants requested that they do so. The pieces of equipment are now missing;
CWB acted in bad faith by failing to seize the defective machinery, knowing of the personal guarantees.
CWB is responsible for the fact that the insurance on the Bobcats expired before they went missing.
[3] In response, CWB argues:
They are only the lessor. The Defendants selected the machinery. CWB’s predecessor (who assigned them the relevant leases and guarantees) only financed the purchase and lease of the equipment in question. If they have any concerns about the condition of the Bobcats, they should take it up with the manufacturer.
There is no independent proof that the Defendants requested CWB to seize the equipment before this action began. Even then the first record of the request was set out in the statement of defence. The Bobcats are now missing.
There is no authority for the propositions regarding bad faith that the Defendants rely upon.
It was the contractual obligation of the corporate Defendants, Concord Paving Inc. (“Concord) and Silvermont Paving Inc., (“Silvercon”) to obtain insurance for the equipment that has now purportedly gone missing.
[4] For the reasons that follow, I find that there is no genuine issue for trial. The Plaintiff is entitled to summary judgment as set out below.
Background
[5] The leases and the equipment that are the subject of this action are identified in this endorsement as:
Lease No.1: On April 13, 2016, both two corporate Defendants, Concord and Silvercon leased a 2011 Caterpillar model CC24 compactor, serial number 24100210 (“the Caterpillar”) from Element Financial Inc. (“Element”).
Lease No. 2: On February 15, 2017, Silvercon leased a 2016 Bobcat model E63 T4 compact excavator, serial number B34R11491, with 12” bucket, 30” bucket, hydra tilt and clamp (Bobcat #1”) from Element;
Lease No 3: On April 19, 2017, Silvercon leased a 2015 Bobcat model T770 compact track loader, serial number AN8T15010, with 2016 Bobcat BU80LP 80” low profile bucket and 2017 Bobcat BU52XCGR 52” X-change grading bucket (Bobcat #2).
[6] The two Bobcat models cited above are collectively referred to as the “Bobcats”. All three pieces of equipment cited above are collectively described as the “equipment”. The three leases cited above are collectively described as the “leases”
[7] The individual Defendants, Orazio Drogo (“Drogo”) and Calogero Gulizia each signed a written personal guarantee for each of the leases (collectively “the guarantees”).
[8] Those leases were registered under the Personal Property Security Act.
[9] In October 2016, Element changed its name to ECN Financial Inc. (“ECN”). In January 2018, Canadian Western Bank completed an asset purchase from ECN that included the leases and the guarantees. CWB, one of the group of banks that comprise Canadian Western Bank, is listed in the purchase agreement as a co-purchaser of those assets. ECN notified the corporate Defendants, as lessees of the leases, of the change of lessor and the need to make all payments to CWB. The Defendants raise no issue as to the validity of the purchase and assignment of ECN’s interest in the leases and the guarantors to CWB. The leases expressly allowed the assignment to a third party.
[10] While the terms of the leases and the guarantees were not identical, they had many standard form terms in common. As the leases for the Bobcat are most in issue, the relevant common terms on Lease No. 1 and Lease No. 2 (the “Bobcat leases”) are the following:
RENT. … We may charge you a returned check or non-sufficient funds charge for any check which is returned by the bank for any reason (not to exceed the maximum amount permitted by law). For any payment which is not received by its due date, you agree to pay a late charge equal to the higher of 10% of the amount due for $25 (not to exceed the maximum amount permitted by law) as a reasonable collection cost. …
UNCONDITIONAL OBLIGATION. You agree that you are unconditionally obligated to pay all rent and any other amounts due under this lease for the full lease term even if the equipment is damaged or destroyed, if it is defective or you have temporary or permanent loss of its use. You are not entitled to reduce or set-off against rent or other amounts due under this lease for any reason whatsoever.
DISCLAIMER OF WARRANTIES. The equipment is being leased to you in as-is condition. No individual is authorized to change any provision of this lease. We have not made and do not make any express or implied representations or warranties whatsoever, including without limitation, the equipment merchantibility, fitness for a particular purpose, suitability, design, condition, durability, operation, quality of materials or workmanship, or compliance with specifications or applicable law. ...
TITLE AND SECURITY INTEREST. We will at all times have title to the equipment. … To secure your performance of your obligations hereunder you grant us a continuing security interest in any interest you have in the Equipment, … you agree that we have all rights of a secured party under any applicable personal property security legislation and at law and in equity. To the extent that this Lease creates a security interest, such security interest is a purchase money security interest (as the terms “security interest” and “purchase money security interest” are used in the Personal Property Security Act (Ontario)) …
USE, MAINTENANCE AND REPAIR. At your own cost and expense, you will keep the Equipment in good repair, condition and working order, ordinary wear and tear expected. You shall, at your expense be responsible for: ... (B) the maintenance, upkeep, care, servicing and repair (including necessary replacement parts) ("Maintenance") of the Equipment: ...
LOSS OR DAMAGE AND INSURANCE. You are responsible for any loss of the Equipment from any cause at all, whether or not insured, from the time the Equipment is shipped to you until the time it is returned to us. You agree to (a) keep the Equipment fully insured against loss, naming us as loss payee, (b) obtain a comprehensive all risks insurance on the Equipment for its full replacement value. If you do not provide us with evidence of proper insurance at our request or we receive notice of policy cancellation, we may (but we are not obligated to) obtain insurance on our own interest in the Equipment at your expense. An insurance charge will be added to each of your invoices.
DEFAULTS AND REMEDIES. You will be in default under this Lease if any of the following happens: (a) we do not receive any Rent or other payment due hereunder 5 days after its due date, … Upon the occurrence of default, we may, in our sole discretion, do any or all of the following:
… (b) as liquidated damages for loss of a bargain and not as a penalty, declare as due and payable, the present value of (i) any and all amounts which may be then due and payable to us under this Lease, plus (ii) all Rent payments remaining through to the end of the Lease Term, plus (iii) the Fixed Purchase Amount, if stated, or if no fixed Purchase Amount is given, our reasonable estimate of the Fair Market Value of like equipment as of the end of the Lease Term, all discounted at the lower of (x) of three percent (3%) or (y) the then current yield prevailing for a Government of Canada bond with term remaining most closely approximating the remaining Term, compounded monthly (collectively, the “Net Book Value”). Any return or repossession will not be considered a termination or cancellation of the Lease. If the Equipment is returned or repossessed we will sell or re-rent the Equipment at terms we determine, at one or more public or private sales, with or without notice to you, and apply the net proceeds (after deducting any related expenses) to your obligations. You remain liable for any deficiency with any excess being retained by us. You agree to pay all of the costs we incur to enforce our rights against you including legal fees.
SUBLETTING AND ASSIGNMENT. … This Lease and all our rights, remedies and benefits hereunder may be assigned by us to an assignee (“Assignee”) without notice to you or your consent and you hereby accept such assignments and wave significations of the act of assignment and the delivery of a copy of any assignment document.
ENTRY. If you fail to surrender the Equipment to us as required under this Lease, we may, without notice to you or resort to legal process, but subject to any applicable law, enter any premises where the Equipment is located and take possession of and remove or disable such Equipment.
JOINT AND SEVERAL LIABILITY. If more than one person executes this Lease, their obligations hereunder shall be joint and several …
[11] The guarantees all include a provision that the guarantor “guarantees … payment, forthwith after demand …, of all indebtedness and liability, past, present and future, …” of the lessee to the lessor. They also set out the following additional terms:
The Lessor shall not be bound to exhaust its recourse against the Lessee or other parties or the securities that it may hold before being entitled to payment from the Guarantor under this guarantee.
The Guarantor shall be currently liable under this guarantee at any time for the full amount of the debts and liabilities of the Lessee to the Lessor then outstanding, … provided that the Guarantor shall not be in default under or in breach of this guarantee unless and until the Lessor has made demand upon the Guarantor hereunder and the Guarantor has failed to pay the amount demanded …
The Guarantor shall pay to the Lessor on demand (in addition to all debts and liabilities of the Lessee hereby guaranteed) all costs, charges and expenses (including without limitation, lawyer's fees as between solicitor and his own client on a full indemnity basis) incurred by the Lessor for the preparation, execution and perfection and enforcement of this guarantee and of any securities collateral thereto, together with interest thereon, both before and after demand, default and judgment, calculated from the date of payment by the Lessor of each such cost, charge and expense until payment by the Guarantor hereunder, at a rate equal to 3% above the rate published by The Bank of Nova Scotia from time to time as The Bank of Nova Scotia's prime lending rate. …
[12] CWB says without contradiction that there were problems with lease payments even before the asset purchase. But they increased thereafter. The first lease went into default for non-payment on March 1, 2019. The Bobcat leases went into default for non-payment on April 1, 2019. The only payment on the leases that CWB received thereafter was an $11,130.09 payment which CWB applied to the outstanding debt of Silvercon.
[13] During the court of the argument of this motion, counsel for the Defendants conceded that there was no issue as to CWB’s math. Its sets out the outstanding amounts owing on the leases as follows:
Re Lease No.1: Against Concord and Silvercon, as lessees, and Drogo and Gulizia, as guarantors, on the first lease:
(a) $12,823.15 comprised of,
Remaining payments to end lease term $12,152.61
Purchase option price 565.00
Reduction for present value discount - 164.46
NSF charges 270.00
$12,823.15
(b) prejudgment interest on the said sum of $12,823.15 from and after the default date, March 1, 2019, at the rate of 18% per annum calculated and compounded monthly not in advance as provided for by the lease; and
(c) post judgment interest, at the same 18% rate.
Re Lease No. 2: Against Silvercon, as lessee, and Drogo and Gulizia, as guarantors:
(a) $85,415.72 comprised of,
Remaining payments to end lease term $51,051.24 Purchase option price 42,943.63 Reduction for present value discount -5,894.94 NSF charges 405.00 Reduction for credits on account -3,089.21 $85,415.72
(b) prejudgment interest on the said sum of $85,415.72 from and after default date of April 1, 2019 at the rate of 10% per annum as provided for in the leases;
(c) postjudgment interest, at the same 10% rate.
Re Lease No. 3: Against Silvercon, as lessee, and Drogo and Gulizia, as guarantors:
(d) the sum of $70,732.96 comprised of,
Remaining payments to end lease term $43,817.62 Purchase option price 31,364.2
Reduction for present value discount - 4,854.48
NSF charges 405.00
$70,732.96
(e) prejudgment interest on the said sum of $70,732.96 from and after the default date, April 15, 2019, at the rate of 10% per annum as provided for by the leases; and
(f) postjudgment interest, at the same 10% rate.
[14] While the sole issue in this motion is whether there is a genuine issue for trial, that issue can be broken up into the following discrete issues:
Has there been a fundamental breach of the leases and in particular the Bobcat leases?
Has CWB failed to mitigate its losses?
Has CWB acted in bad faith towards the Defendants? and
Is CWB responsible for the fact that Silvercon failed to maintain insurance on the Bobcats?
[15] Before I turn to those discrete issues, I set out below the principles that apply to motions for summary judgement, as set out in my decision in Silva v Biasini, 2020 ONSC 8035:
15 This motion is brought under r. 20.01 of the Rules of Civil Procedure. The terms of r. 20.04 are mandatory: the court shall grant summary judgment if it is satisfied that there is no genuine issue for trial with respect to a claim or defence (see also Hryniak v. Mauldin, 2014 SCC 7 ("Hryniak") at para. 68 and Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429 ("Mega International") at para. 83).
16 The principles under which the court makes the determination of a genuine issue for trial are set out by the Supreme Court of Canada in paras. 44-45, 49-50 and 66 of Hryniak.
17 There will be no genuine issue requiring a trial if the summary judgment process allows the court to reach a fair and just determination on the merits on a motion for summary judgment. That will be the case when the process (1) provides the court with the evidence required to fairly and justly adjudicate the dispute by making the necessary findings of fact, (2) allows the judge to apply the law to those facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. (see Hryniak at para. 49 and 66).
18 Each party to a motion for summary judgment has an obligation to "...'put its best foot forward' with respect to the existence or non-existence of material facts that have to be tried" (Ramdial v. Davis (Litigation Guardian of), 2015 ONCA 726, [2015] O.J. No. 5630 (O.C.A.) at para. 27, citing Papaschase Indian Band No. 136 v. Canada (A.G.), 2008 SCC 14, [2008] 1 S.C.R. 372, at para 11).
19 The onus for proving that there is no genuine issue for trial rests with the moving party. However in response to the evidence of the moving party, the responding party may not rest on mere allegations or denials in the party's pleadings. That party must set out in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. A self-serving affidavit is not sufficient itself to create a genuine issue for trial in the absence of detailed facts and supporting evidence. (see r. 20.01(2) and Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, at para. 31).
20 In the oft-repeated maxim of Justice Coulter Osborne, then of the Ontario Court of Appeal, the responding party to a motion for summary judgment must "lead trump or risk losing" (106150 Ontario Ltd. v. Ontario Jockey Club, 1995 CanLII 1686 (ON CA), [1995] O.J. No. 132 (Ont. C.A.), at para. 35, the principle was reaffirmed in Ramdial v. Davis (Litigation Guardian of), supra, at para. 28).
21 The court is entitled to assume that the record before it is complete, that it contains all of the evidence that a party would present if there were a trial. (Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438, at para. 8, citing Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (Ont. C.A.), 111 O.A.C. 201, at para. 17; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 27, 33-34, aff'd 2014 ONCA 878, leave to appeal to S.C.C. refused, [2015] S.C.C.A. No. 97; and Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, at para. 54).
22 Once the moving party discharges the burden of showing that there is no genuine issue for trial, the onus shifts to the responding party. That party must then provide evidence of specific facts showing that there is a genuine issue requiring a trial (Ramdial v. Davis (Litigation Guardian of), at para. 30). An adverse inference may be drawn from a failure to support the allegations or denials in a party's pleadings (Pearson v. Poulin, 2016 ONSC 3707, at para. 40).
23 Under r. 20.04(2.1) the court may exercise enhanced powers on the motion unless it is in the interest of justice to do so at trial. Those enhanced powers allow the court to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. As Paciocco J.A. wrote for the Ontario Court of Appeal at para. 83 of Mega International, those powers "...are presumptively available to a summary judgment motion judge to use to fairly and justly adjudicate a claim at a motion for summary judgment" (Hryniak, at para. 45). However, the court is not required to resort to those powers to make up for a party's evidentiary shortcomings (see Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438 at para. 8).
Issue No. 1: Has there been a Fundamental Breach of the Leases?
[16] The Defendant’s primary argument is that there has been a fundamental breach of the Bobcat leases. Of course, that does not answer the failure to pay the full amount owing on Lease No. 1 for the Caterpillar.
[17] A fundamental breach is one that deprives the innocent party of substantially the whole benefit of the contract. Only a fundamental breach gives a party the right to terminate a contract: Spirent Communications of Ottawa Ltd. v. Quake Technologies, 2008 ONCA 92, 88 O.R. (3d) 721, at para. 31 and 35, leave to appeal to S.C.C. refused, 2008 CarswellOnt. 4317.
[18] At para. 36 of Spirent Communications, the Court of Appeal for Ontario set out the five factors that a court must consider when determining whether there has been a fundamental breach:
(1) the ratio of the party's obligations not performed to that party's obligations as a whole; (2) the seriousness of the breach to the innocent party; (3) the likelihood of repetition of such breach; (4) the seriousness of the consequences of the breach; and (5) the relationship of the part of the obligation performed to the whole obligation.
[19] Neither counsel alluded to Spirent Communications or its five factors.
[20] Rather, regarding the Bobcats, the Defendants argue in their factum that when they were leased, they were “Described as ‘new’” when in fact they were reconditioned. They add that they had trouble with the equipment from the very first, leading them to eventually stop using them and storing them away at a storage yard. In other words, they were allegedly “lemons”.
[21] The Defendants offer no objective evidence that the Bobcats were “lemons”. There are no repair bills, warranty claims, evidence from mechanics, evidence from employees who were unable to do the work because of the condition of the Bobcats, or evidence of any independent inspection of the Bobcats. As Drogo admitted in cross-examination, he has no evidence to support his claims but his word.
[22] In both his affidavit and cross-examination, Drogo admits that the Bobcats were leased as used. But he claims that they were supposed to be reconditioned and in top-flight working order. He admits that he was involved in selecting the Bobcats and that no one from the leasing company said anything to him about their condition.
[23] Drogo also stated in his cross examination:
(a) He had nothing to do with the leasing company regarding defects with the Bobcats. The only people he had dealings with were with Bobcat when he brought the machine back to get fixed. After getting it back again, the machine was sitting in storage for quite a while. He got it out of storage but, overall, the machine hadn't been working.
(b) Ms. Catobianco, who operates the yard at which he states he stored the Bobcats, has one machine and he doesn't know what she did with it. Many times, over and over again they tried to get the machines out of there and she would not let them.
(c) Warranty work was done on the Bobcats sine years ago, but the warranty has expired.
(d) He chose not to maintain the insurance on the Bobcats. He felt that that was the responsibility of the leasing company.
(e) He was very clear that all of his dealings regarding the Bobcats were with the dealership and not CWB. He felt that he had noting to do with them, as he did not lease the equipment form them.
[24] In short, the Defendants fail to raise a genuine issue regarding a trial regarding fundamental breach. They are required to put their best foot forward in this motion, but their best foot is not clothed in any evidence. I am entitled to draw inferences and make findings of credibility in a motion such as this.
[25] Here, if the Bobcats were “lemons” as the Defendants allege, they would, as set out above, have some evidence of that fact, other than Drogo’s word. The absence of any such evidence, some of which should be available if the Defendants’ claims are to be considered credible, is telling.
[26] Further, the Defendants argue that they should not be liable for the leases and guarantees on the Bobcats because of their poor condition. But they have no complaint about the condition of the Caterpillar. Yet the unchallenged evidence of CWB is that $12,823.15 is owing on the lease for that piece of equipment and that payments have not been made in about 2 ½ years.
[27] From all of this I am entitled to find for the purpose of this motion that if there were evidence that would support the Defendants’ position hey would have produced it. Having failed to do so, I find that there is no evidence to support the claim that the Bobcats were unable to perform their function and that CWB (or its predecessor, Element/ECN) had committed fundamental breach of the Bobcat warranties.
Issue no. 2: Has CWB failed to mitigate its losses?
[28] The Defendants argue that CWB failed to mitigate its losses by failing to seize the Bobcats after they failed to make the payments due under the leases and guarantees. They complain that all that the bailiff did was attempt to collect money owing on the leases, rather than repossess the Bobcats. I note that they did not complain about the failure to seize the Caterpillar even though, as set out above, there is an outstanding balance on Lease No. 1.
[29] There are two further problems with this mitigation argument. First, there is no credible evidence that CWB was aware of the location of the Bobcats. They were allegedly stored at what is called the Capobianco yard. There is no direct evidence CWB was ever aware or made aware of that fact. Second, there is no evidence, as alleged by the Defendants, that they attempted to convince CWB to repossess the allegedly faulty Bobcats. There is no correspondence, whether in writing, on paper or virtual, in which any of the Defendants advise CWB of the location of the Bobcats.
[30] The evidence of CWB is that the Defendants actually refused to give the address of the Bobcats to their bailiff. In support of that claim, CWB produced its internal logs, which are business records, which show contacts between CWB and the Defendants. Those logs record no request by the Defendants to repossess the Bobcats. The only request of CWB by any of the Defendants recorded in those logs was to allow them more time to put their accounts into good standing. I note as well that the logs make no reference to complaints of the Bobcats being “lemons”. One would think that if their condition were the reason for the non-payment, that the concern would have been raised with CWB.
[31] To this day, those Bobcats have not been surrendered. The Defendants allege that they do not know whether they went. They claim that the Bobcats were removed by unknown persons from the Capobianco yard. There is no evidence that they called the police. Because they did not have insurance, they did not make a claim. All that they ask is that the court takes Drogo’s word that the bailiff was requested to repossess the Bobcats and informed of their location.
[32] The second problem with the Defendants’ argument is that the leases set out the method of calculation of the liquidated damages for default in payment of the leases. In Hearn Vehicle Leasing Ltd. v. Torres, [2000] O.J. No. 336 (S.C.J.) Stinson J. reviewed a number of legal and academic authorities regarding the duty to mitigate in the face of a liquidated damages term of a contract. She concluded at para. 54 that “[t]he requirement that a plaintiff attempt to mitigate its damages is not applicable when the contract breached contains a liquidated damages clause.”
[33] Accordingly, I find no genuine issue for trial regarding the issue of mitigation.
Issue No 3: Has CWB acted in bad faith towards the Defendants?
[34] The Defendants argue that CWB acted in bad faith by ignoring their complaints that the Bobcats were “lemons” and failing to seize the vehicles, knowing that they were in possession of guarantees from Drogo and Gulizia.
[35] In making that argument, they make a vague reference to the duty of good faith in the performance of contractual relations set out by the Supreme Court of Canada in Bhasin v. Hrynew, [2014] 3 S.C.R. 494, [2014] S.C.J. No. 71, 2014 SCC 71. There, at para. 73, Cromwell J., writing for the court, stated:
I would hold that there is a general duty of honesty in contractual performance. This means simply that parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract. This does not impose a duty of loyalty or of disclosure or require a party to forego advantages flowing from the contract; it is a simple requirement not to lie or mislead the other party about one's contractual performance.
[36] Here, the Defendants cannot prove any breach of the duty of good faith through some misleading dealings between the parties. They can point to no lies given by CWB that they relied upon any matter. They also fail to provide any authority for the proposition that the conduct of CWB, in enforcing the leases as they attempted to do, violates the duty of good faith. In short, they raise no genuine issue requiring a trial in regard to an alleged breach of the duty of good faith performance of the leases.
Issue No 4: CWB is responsible for the fact that the insurance on the Bobcats expired before they went missing.
[37] While the Defendants seek to take CWB to task for their failure to ensure the Bobcats, it is unclear how in fact or law that could operate as a defence to this proceeding. CWB monitored the insurance in the Caterpillar and the Bobcats. CWB appears to have missed the failure to continue the insurance. But that appears to have been a deliberate decision by the Defendants. At his cross-examination, Drogo stated that no insurance against theft was maintained because he believed that the leasing company was responsible for that insurance. He was not going to pay for it.
[38] However, that stance was contrary to the clear wording of para. 11 of the leases, set out above, that it was the responsibility of the lessor to keep the Bobcats insured and that the lessees were responsible for any losses.
[39] For those reasons there is no genuine issue requiring a trial in regard to insurance.
Conclusion
[40] For the reasons set out above, I find that there is no genuine issue requiring a trial of this action.
[41] Having said that I do not grant CWB all of the relief it claims. In particular I do not read the guarantees signed by Drogo and Gulizia as requiring them to return the equipment leased by Concord and Silvercon. While the first lease requires the same 18% annual interest rate both pre and post judgment, I do not see the same terms in the second and third leases.
[42] Accordingly, I grant judgment to CWB as follows:
(1) With regard to Lease No. 1:
a. Against all Defendants:
i. $12,823.15
ii. prejudgment interest thereon from March 1, 2019 at the rate of 18% per annum calculated and compounded monthly not in advance;
iii. postjudgment interest at 18% per annum in accord with the first lease;
b. As against Concord and Silvercon: delivery to the plaintiff of possession of the Caterpillar compactor more particularly described as 2011 Caterpillar model CC24 compactor, serial number 24100210.
(2) With regard to Lease No. 2:
a. Against the Defendants Silvercon, Drogo and Gulizia:
i. $85,415.72;
ii. prejudgment interest thereon from April 1, 2019 at the rate of 10% per annum;
iii. postjudgment interest in accord with the Courts of Justice Act;
b. As against Silvercon: delivery to the plaintiff possession of the Bobcat excavator more particularly described as: 2016 Bobcat model E63 T4 compact excavator, serial number B34R11491, with 12” bucket, 30” bucket, hydra tilt and clamp.
(3) With regard to Lease No. 3:
a. Against the Defendants Silvercon, Drogo and Gulizia:
i. $70,732.96;
ii. prejudgment interest thereon from April 15, 2019 at the rate of 10% per annum;
iii. postjudgment interest in accord with the Courts of Justice Act;
b. As against Silvercon: delivery to the plaintiff of possession of the Bobcat track loader more particularly described as: 2015 Bobcat model T770 compact track loader, serial number AN8T15010, with 2016 Bobcat BU80LP 80” low profile bucket and 2017 Bobcat BU52XCGR 52” X-change grading buck.
Costs
[43] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, CWB may submit its costs submissions of up to three pages, double-spaced, one-inch margins plus a bill of costs/costs outline and offers to settle within 14 days of release of this endorsement (I have granted them additional time because of the upcoming holidays). They need not include the authorities upon which they rely so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Defendants may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and make no costs order.
“Marvin Kurz J.”
Electronic signature of Justice Marvin Kurz,
Original will be placed in court file
Date: December 22, 2021