1. Case Name:
City Water International Inc. v. Alston Cartage Ltd.
Between
City Water International Inc., and
Alston Cartage Limited
[2012] O.J. No. 6253
File No. SC-11-002264-00
Ontario Superior Court of Justice
R.A. Fellman Deputy J.
Heard: June 1, 2012.
Judgment: June 1, 2012.
Released: July 16, 2012.
(12 paras.)
Counsel:
M. Riddell: Representative of the plaintiff.
J. Palmer: Representative of the defendant.
TRIAL ENDORSEMENT
1 R.A. FELLMAN DEPUTY J.:-- The plaintiff (hereinafter called "City Water") claims the sum
of $1,445.16 from the defendant (hereinafter called "Alston". City Water alleges that Alston, as
lessee, executed an undated Lease Agreement (Exhibit "1") to it as lesser for three water equipment
units and accessories. It is not disputed that Alston took possession of the units on July 21, 2005. A
Service Agreement for the units was also executed by Alston on July 21, 2005 (Exhibit "4").
2 Pursuant to Schedule "A" of the Lease Agreement (Exhibit "3), the lease term was for 5 years,
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2. calling for 20 consecutive quarterly payments of $137.66 inclusive of taxes. The commencement
date of the said lease was the date of delivery and installation; namely, July 21, 2005.
3 City Water alleges that Alston defaulted on its payments, and pursuant to the terms of the lease,
City Water picked up the equipment on February 11, 2011. City Water alleges that it is entitled to
the balance owing on the lease calculated to the end of the lease term, September 30, 2011 of
$359.10 inclusive of taxes.
4 City Water also alleges that pursuant to paragraph 6 of the Service Agreement, it is also entitled
to a removal service charge of $300.00 for each unit of $919.80 inclusive of taxes.
5 Alston alleges in its Defence that the lease agreement and service agreement were signed by
one of its employees, Mandy Newbold, and he had no authority to execute the agreements on behalf
of it. Jean Palmer, the present controller of Alston, was the only witness called by Alston at trial.
She made the same allegations in her evidence. She admitted that she was not an employee of
Alston when the contracts were entered into by Mr. Newbold. Neither Mr. Newbold nor any
purported officers of Alston were called as witnesses, such as Mr. Perry King who attended the trial,
to support its position.
6 I find that, at the very least, Mr. Newbold, in the eyes of City Water's installers, had such
authority. Alston took possession of the equipment and made a number of payments thereon. It had
the use and enjoyment of such use until it defaulted on its payments. I find, on a balance of
probabilities, that it was Mr. Newbold, who tendered the Alston cheque, marked "void" (Exhibit
"9") to one of City Water's installers, when the equipment was delivered on July 21, 2005. The
"void" cheque supported the automatic withdrawal of the payments over the lease terms.
7 I find that both the Lease Agreement and the Service Agreement are binding on Alston and that
Mr. Newbold had the ostensible authority to bind Alston to the said agreements.
8 Alston, in its Defence, alleged that it had not renewed the lease agreement on the expiration of
the 5 year term. The lease agreement, paragraph 8, states that if 6 months written notice of
termination is not given by Alston during the last 6 months of the original lease, the said lease is
extended for a further term of one year. Therefore, written notice of termination would have to be
given on or before July 21, 2005. No written notice was produced at trial by Alston evidencing
termination within the aforesaid time period. Furthermore, there was no written evidence introduced
at trial by Alston that it requested City Water to pick up the equipment.
9 The question of picking up the equipment is not relevant to the issues due to the fact that, as I
find, the lease was automatically renewed for a further one year with a termination date of July 21,
2011. The equipment was picked up by City Water on February 11, 2011 due to Alton's default in
payments. It was the default.that triggered, pursuant to paragraph 6 of the Service Agreement, City
Water's right to pick up the equipment and to charge $300.00 for each of the three units that had to
be picked up. It should also be noted that pursuant to paragraph 9 of the Lease Agreement, it was,
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3. prima facie, Alston's obligation to return the equipment if it didn't wished to proceed with a
renewal. I find, therefore, that City Water is entitled to $919.80, inclusive of taxes.
10 City Water shall have judgment for $1,445.16 against Alston. It shall be entitled to
pre-judgment interest at the Courts of Justice Rate, calculated from February 11, 2011. City Water
shall also be entitled to post-judgment interest at the Courts of Justice Rate.
11 The Parties shall file with the. court, their respective written submissions as to costs by August
10, 2012. Written submissions are to be no more than 4 pages, double spaced.
12 I would like to thank both parties for their filed Written Submissions. Mr. Matthew Riddell,
for the Plaintiff, filed a superb analysis in regard to my query concerning the Tilden Rent-A-Car
case.
R.A. FELLMAN DEPUTY J.
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