COURT FILE NO.: 02--B4529

DATE: 20031212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

ANDREW P. SCHAER and SHERRILL LYNN STACEY

In Person

Appellants

• and -

THE BARRIE YACHT CLUB et al

S.B. Majic, counsel for the Respondents

Respondents

HEARD: November 3 and 4, 2003 at Barrie

R. MacKINNON, J.

REASONS FOR DECISION ON APPEAL

BACKGROUND

[1] The Appellants appeal of the judgment of Deputy Judge J.L. Gignac of May 7, 2002 in two Small Claims Court actions. Claim number 1320/00 was a claim by the Appellants against the Respondent yacht club for alleged damage to his motor vehicle in July, 2000. I will refer to this as the “Vandalism Action”. The yacht club in claim 1320A/00 claimed damages for alleged trespass and expenses relating to the removal of the Appellant’s boat from the yacht club premises on or about November 25, 2000. I will refer to this as the “Trespass Action”. Claim number 2201/00 was tried together with the other actions, and was a claim by the Appellants against the Respondent yacht club for damages in relation to seizure and impounding of the Plaintiff’s boat. I will refer to this as the “Lien Action”.

[2] In his extensive reasons for judgment the trial judge held that on credibility matters he accepted, without reservation, the evidence of the witnesses called on behalf of the yacht club over that of the Appellant. The trial judge dismissed the claims of Mr. Schaer and Mrs. Stacey in claim 1320/00 (the Vandalism Action) and fixed costs against them in the sum of $300. In claim 1320A/00 (the Trespass Action) he granted judgment in favour of the yacht club in the sum of $300 plus costs of $300, but allowed a credit of $185 to the Appellants on that judgment. In action number 2201/00 (the Lien Action) the claims of the Appellants were dismissed with costs against the Appellants in the amount of $160 for filing and disbursement expenses plus $1,000 for costs in the nature of counsel fee.

[3] The matter came on appeal before me following a number of appeal case management orders of Eberhard, J. These orders greatly assisted me in dealing with the voluminous written and extensive oral submissions on these appeals. I was made aware, both in facta and in oral argument, that the Appellants have initiated a separate Superior Court action B2743 at Barrie related to their expulsion from membership in the Barrie Yacht Club.

ISSUES

[4] 1. The Appellants argue that in relation to the Vandalism Action the trial judge erred in his interpretation and holding that the Occupiers’ Liability Act did not apply. In my view the trial judge correctly held that the Occupiers’ Liability Act applies only to conditions of property and lawful activities conducted on property but does not apply to illegal activities which are not under the control of the occupier. The trial judge made a specific finding of fact that the Appellants were persons who willingly assumed the risk of parking their motor vehicle on the premises, all in the context of a consideration of s.4(1) of the Occupiers’ Liability Act - in the event that he was wrong in his initial assessment that the Act did not apply. In my view he was correct in his interpretation of the law and in his conclusion that s.4(1) of the Act applied to bar recovery on the facts that he found. The Ontario Occupiers’ Liability Act does not impose the same duty of care on owners or occupiers in respect of the conduct of third parties on premises, as does provincial legislation in other Canadian provinces. There was no evidence at trial of any condition of the yacht club premises or activities carried on therein that caused or contributed to the damage of the Appellants. I reject the Appellants’ submission to me that the yacht club’s post-vandalism conduct in upgrading the security at its premises is probative of its liability to the Appellants for their vehicle which was vandalized by third parties. That is not the law.

[5] 2. The Appellants argue that the club did not proceed in a procedurally fair manner in that they were not provided with sufficient notice of the club’s intention to enforce its July 17, 2000 expulsion of them from membership in the yacht club. This is, in part at least, the subject of their statement of claim in action B2743 which remains before the Superior Court. Justice Gignac in the Trespass Action 1320A held that it was not necessary for him to determine whether Mr. Schaer and Ms. Stacey were or were not members in good standing on July 26 and 27, 2000, the date the judge found Mr. Schaer was present on the yacht club property. I agree with the approach taken by the trial judge. There was evidence upon which he could find, and did so, that Mr. Schaer and Ms. Stacey had notice that they were not to attend or be on the yacht club property. There was evidence from which he could find, and did so, that the club had rights as owner or as occupier to exclude any members (even members in good standing) from attendance on the property from time to time. Whether the club improperly excluded and expelled Mr. Schaer and his wife from membership (as opposed to excluding them from entering onto the club property) is not a necessary precondition to determining liability in the Trespass Action. I find no palpable or overriding error in the reasoning of the trial judge in coming to the conclusion on liability that he did.

[6] 3. As to the Trespass Action damages, the Appellants argue that there were no damages proven. It is trite law that trespass is actionable without proof of damage and that, where there has been a slight injury or even none at all, nominal damages may be awarded. This is particularly so where the trespass was technical, unintentional, or where a defendant acted under colour of right. The damages ordered by Justice Gignac were nominal, even in the context of a Small Claims Court action, and I see no reason to interfere.

[7] 4. The Appellants argue that the trial judge erred in not exercising such jurisdiction as was available to him under ss.96, 97, 106 and 107 of the Courts of Justice Act to stay the Small Claims Court proceedings before him (or the effect of same) until a determination had been made on the issues in action B2743 in the Superior Court. I disagree. That outstanding action, in its pith and substance, remains outstanding as to equitable relief that was unavailable in the Small Claims Court. In my view it would have been both oppressive and wrong to permit a stay. I see no good purpose in speculating as to what claims a Superior Court judge may or may not be prepared to rule are still outstanding in that action. In proceeding as he did the trial judge minimized the risk of inconsistent findings, duplication of effort, and excessive costs. His approach was appropriate and I see no reason to interfere.

[8] 5. The Appellants argue in Lien Action 2201/00 that the Repair and Storage Liens Act does not apply. I disagree. “Article” is defined in s.1(1) of that Act to mean an item of tangible personal property other than a fixture. That clearly includes a vessel as an item of tangible personal property. The inclusion by the Legislature of both ships and vessels within the definition of “premises” in the Occupiers’ Liability Act does not assist the Appellants in a consideration of the parties’ rights under the Repair and Storage Liens Act. The trial judge correctly concluded, in my view, that there was no logical basis upon which to differentiate between “in water mooring” and “out of water storage”. In my view the yacht club was a storer and was and is entitled to its remedies under the Repair and Storage Liens Act. In such circumstances a vessel is stored as much during the time it is in water (either at dock or on mooring) as it is when it is out of water nestled in a crib or perched on a trailer. There was clear evidence before the trial judge that in the months leading up to November of 2000 the Appellants were aware that the yacht club took the position not only that they had been expelled pursuant to by-law but also (and more importantly in the context of the Repair and Storage Liens Act) that the boat needed to be removed from the water to avoid damage by ice. In addition there was evidence before the trial judge, which he accepted, that the Appellants were in default of a small portion of their obligation to pay for storage and mooring fees to the club for the year 2000 - and had been so since February 28, 2000 and continuing to the November 25, 2000 boat removal. My duty is not to substitute my view of the credibility of witnesses for that of the trial judge. That court correctly concluded that Part II of the Repair and Storage Liens Act (non-possessory liens) had no application to the case before it. I see no palpable and overriding error in his reasoning and no error in principle.

[9] 6. The Appellants argue that Deputy Justice Gignac should not have come to the conclusion that he did in relation to the bill of the bailiff, Mr. Langton. However, there was evidence before the trial judge enabling him to reason and conclude as he did. Similarly I find no error in his conclusion that Call Service as current storer of the boat has no right to look to the yacht club for payment but rather can look only to the Appellants. If the Call Service charges are excessive, the Appellants have their remedy.

[10] 7. The Appellants argue that in coming to the costs orders that he did, the trial judge breached s.19.04 of the Small Claims Court Rules and s.29 of the Courts of Justice Act. I agree. The respondents were successful at trial in action 2201/00 (the “Lien Action”). They were represented by counsel and accordingly, Rule 19.04 of the Small Claims Court Rules is applicable. Section 29 of The Courts of Justice Act cannot be used to circumvent the inapplicability of Rule 19.05 to compensate the successful defendant at trial when there was no finding of unreasonable behaviour against the unsuccessful plaintiff at trial. Consequently, the trial judge’s finding of counsel fee in excess of $300.00 in that action was not justified and I allow the appeal to that extent and vary the trial judgment to reduce the costs in the “Lien Action” to $160.00 for filing fee and disbursements, plus $300.00 for counsel fee.

[11] 8. The Appellants demonstrated no air of reality on the balance of their arguments in this appeal, both those made orally and in their written factum.

DISPOSITION

[12] For the foregoing reasons, the appeal is dismissed as to actions 1320/00 and 1320A/00. The appeal is allowed in part as to action 2201/00. The only outstanding issues still now before me are the following:

(a) Whether to award costs of this appeal - and if so on what scale and in what amount. The party or parties seeking costs shall within fourteen days of the release of these reasons serve and file a bill of costs in this appeal together with succinct written submissions in regards to same. A party receiving a bill from the opposite party shall file and serve his/her succinct written submissions and objections within seven days thereafter. The party seeking costs shall have seven days to reply in writing; and

(b) Whether either party takes the view that I ought not to hear the outstanding Superior Court motion in B2743. If either argues I should not, that party shall within fourteen days of the release of these reasons serve and file his/her succinct submissions brief. The party receiving those submissions shall have seven days to serve and file succinct responding submissions. The initial party shall have seven days to reply in writing.

R. MacKinnon, J.

Released: December 12, 2003