It was an odour that Albert Testa says is still very vivid in his memory, even seven years later.
“The second I opened the door, there was a smell that was vomit-inducing. I don’t know how else to describe it,” he recounted.
The source was about 1,500 kilograms of round smelt that he alleges was not properly stored by receiver BDO Canada Ltd., which took possession of a fish-processing plant he co-owned in Leamington, Ont. None of the allegations have been proved in court.
The seizure of the fish plant took place the same day a shipment of smelt arrived. Nearly two weeks later, Mr. Testa was asked by an employee of the receiver to meet her at the facility because a freezer alarm had been activated.
“I asked, ‘Did you put that fish away?’ She responded, ‘We put it in the freezer yesterday,’” Mr. Testa said.
When he looked inside the freezer, “I found all of this rotting stinky fish.” It had been piled on top of the processed inventory, Mr. Testa said. “Imagine wet fish sludge.”
His business partner Michael Hillhouse remembers going to the plant a few months later, after the fish had been removed, to pick up belongings in the company of a BDO employee. “She wouldn’t even go inside, because of the smell,” he said.
Mr. Testa and Mr. Hillhouse say the odour persisted even after the facility was cleared out, having a permanent effect on the building.
The fallout from the smelt storage has resulted in a fish tale that has been all too real for the two businessmen, who worked in the financial-services sector before deciding to enter the freshwater-fishing industry in Lake Erie – an industry Mr. Testa’s uncle and other family members had been part of for many years.
Mr. Testa and Mr. Hillhouse filed a lawsuit in April, 2012, against Toronto-Dominion Bank and BDO seeking $750,000 in damages, alleging negligence in the handling of the fish and claiming the incident significantly reduced the value of the property, which was ultimately sold for less than half of what they paid for it originally.
More than six years later, the case is finally scheduled to go to trial in January, although the two men may represent themselves after accumulating more than $200,000 in legal bills. “The litigation has been a struggle,” Mr. Testa says of the case even the other side refers to informally as the “stinky fish” file.
Last December, Ontario Superior Court Justice Thomas Heeney ruled TD and BDO had not complied with certain standard procedural requirements. “I conclude from this inaction that the defendants were content with the leisurely pace of this litigation,” the judge wrote.
Mr. Testa, a former investment banker, and Mr. Hillhouse, a chartered accountant, originally got involved in the freshwater-fish industry in 2007 as part of a reverse takeover of a larger player in the sector. The new company wound down, but Mr. Testa and Mr. Hillhouse purchased the plant in Leamington for $600,000, set up their own operation and rented the facility to another fish processor. Properly frozen, smelts can keep for significant amounts of time, and there is a large overseas market for the fish.
The business partners obtained $570,000 in loans from TD. About a year later, they were unable to make the monthly payments, in part because of financial difficulties incurred by their commercial tenant. TD obtained a judgment for repayment of the loans, but held off taking action for several months while the two men negotiated with the Business Development Bank of Canada (BDC).
“We asked for a chance to find a replacement lender,” says Mr. Testa, adding the business was still viable. The loan process with BDC progressed slowly and a TD official indicated the bank was not going to wait any longer. “He told us, ‘I am pulling this.’ Twenty-four hours later, they called in the receiver, Mr. Testa said.
Two employees from BDO showed up at the facility on June 1, 2011. “They said, ‘Our job is to learn the facility, lock it down and escort you out,’” Mr. Testa said. While they were present, a truck arrived with the smelt. “I told them, ’I can put it in the freezer.’ They said, ’Absolutely not. We have people who know the industry.’”
The smelts and the rest of the fish had a value of between $80,000 to $120,000 according to the statement of claim filed in court, but was ultimately disposed of because they were spoiled. The building was eventually sold for less than $300,000, less than half of its previous value, Mr. Testa said.
Once the decision was made to call in the receiver, it would have been in TD`s best interest to ensure the inventory was stored properly, Mr. Hillhouse suggested. “There were no instructions to the receiver, except to lock the doors,” he said. “We had a vested interest to mitigate the damages because we were on the hook personally and they did not care,” he claims.
TD spokeswoman Alison Ford says the bank “respectfully” declines to comment. Laura Watt, a spokeswoman for BDO says it is “not in a position to comment” as the matter is before the courts, but that the company stands by its defence. Tony Van Klink, the London, Ont.-based lawyer who has been representing both defendants, did not respond to requests for comment.