January 6, 2021 by Greg Meckbach
A collision repair centre is suing an auto dealership firm that stopped referring work to it amid unproven allegations that the body shop submitted false or fabricated invoices to Aviva Canada, recent Ontario court documents show.
In 2013, a firm operating a Porsche dealership in Toronto, together with an Audi dealership in nearby Markham, Ont., entered into an agreement with John Keen, owner of Dealer’s Choice Preferred Collision Centre. Peter Kircher is the principal of the firms that operate the Porsche and Audi dealerships.
Keen at one time had loaned $500,000 to Kircher. The 2013 agreement provided for the repayment of that loan and also for Kircher’s companies to refer all customers requiring body and collision services for damaged Porsche and Audi vehicles to Dealer’s Choice for 10 years.
In 2017, Dealer’s Choice launched a $10-million lawsuit against Kircher and his companies, wrote Master Andrew Graham of the Ontario Superior Court of Justice in Dealer’s Choice Preferred Collision Centre Inc. v. Kircher, released Dec. 7, 2020.
Dealer’s Choice is alleging breach of contract.
None of the allegations against any of the parties have been proven in court.
The Dec. 7 decision did not get into the merits of the case; rather it ruled on a motion to correct a misnomer in the plaintiff’s name. Keen asked the court to substitute “Downtown Auto Collision Centre Inc. o/a Dealer’s Choice Preferred Collision Centre Inc.” for the current plaintiff, “Dealer’s Choice Preferred Collision Centre Inc.” This is because “Dealer’s Choice Preferred Collision Centre Inc.” is not actually registered as a business in Ontario.
Keen alleges that Kircher and his firms breached their 2013 agreement by ceasing to refer customers with damaged Porsche vehicles to Dealer’s Choice in 2016.
Kircher’s firms allege that in May 2016, they learned that Dealer’s Choice was submitting fabricated or otherwise false invoices and other documentation to Aviva Canada Inc. It is alleged those invoices were for work that was not performed or parts that were not ordered, Master Graham wrote in the Dec. 7, 2020 decision. Those allegations have not been proven in court.
Kircher’s firms are countersuing the plaintiff, alleging breach of contract, damage to reputation, loss of goodwill, and interference with their economic, business and contractual relations.
Ultimately, the motion to amend the name of the plaintiff was denied in the ruling released Dec. 7, 2020. Master Graham essentially ruled that even though “Dealer’s Choice” is not the registered legal name of any of Keen’s companies, Kircher should have no doubt about who is suing him and his companies. The decision also notes that in the 2013 agreement, the auto dealers are agreeing to refer work to “Dealer’s Choice” and not to “Downtown Auto.”
Keen had submitted a motion under Ontario’s Rules of Civil Procedure section 5.04(2) that states: “At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”