COURT FILE NO.: 02-DV-000773

DATE: 2004/03/26

ONTARIO

SUPERIOR COURT OF JUSTICE

(Divisional Court)

B E T W E E N:

DENISE BRUVELS

In person

Respondent (Plaintiff)

• and -

MIKE MILLER

Bruce F. Simpson, for the Appellant (Defendant)

Appellant (Defendant)

HEARD: November 4, 2003

Desmarais J.

REASONS FOR DECISION

Nature of Proceedings

1This is an appeal from a judgment of Mr. Justice T.C. Tierney of the Ontario Court of Justice (Small Claims) in Ottawa dated June 17, 2002. Justice Tierney awarded the Plaintiff the sum of $10,000 plus costs for damages to chattels, punitive damages and lost wages. Justice Tierney found that the Plaintiff had suffered losses as a result of being wrongfully deprived of her goods, or as the result of the Defendant’s failure to take reasonable steps to protect those goods and for the value of items wrongfully held, as well as for missing items.

2The Appellant seeks an order setting aside the judgment of Justice Tierney and dismissing the Plaintiff’s claim with costs. Alternatively, the Appellant asks that the court reduce the Plaintiff’s damages to zero or reduce them to such an amount as may seem reasonable from the evidence. In the further alternative, the Appellant seeks a new trial with respect to the issues of whether or not there was a mediated agreement that both parties were bound by which the Appellant lived up to and/or the issue of the Plaintiff’s damages. The Respondent seeks a dismissal of the appeal.

Background

3The Respondent/Plaintiff in the original action sued the Appellant/Defendant for damages to personalty owned by her. The Appellant and Respondent had been in a tenancy-type relationship. The terms of that intended tenancy were very much in dispute at trial. Justice Tierney found that the parties were never in agreement as to the terms of the intended tenancy; that they lacked a meeting of the minds; and therefore, no tenancy agreement was reached.

4Negotiations for the tenancy took place in mid-June, 2001 for occupancy for an unspecified date, identified as approximately ten days hence, or June 25, 2001. The tenancy was to be monthly for an indefinite period to end in or about the month of November 2001.

5Prior to the intended tenancy, on the long weekend in July 2001, the Respondent moved all her belongings, namely furnishings, appliances and personal belongings to the Defendant’s property and stored them in the barn and in the house. Tensions between the parties began during the unloading of her belongings. Due to these problems between the parties, the Respondent never occupied the space for tenancy.

6On August 3, 2001, the Plaintiff was scheduled to remove her property from the Defendant’s premises. Two police officers attended at the Defendant’s premises with the Plaintiff to mediate the dispute between her and the Defendant, and to ensure that there was no breach of the peace while the Plaintiff removed her property. The Defendant had asked for a cash payment of $1,000 including $600 for July rent and $400 for storage. This money was to be paid to the Defendant before the Plaintiff was allowed to remove her belongings. The Plaintiff agreed to pay the Defendant $500 to get her belongings back and said that she would contest it later. It had been recommended to her by the Landlord/Tenant Tribunal, that she get her belongings back first and settle the matter later in court. The Defendant insisted that only one-half of the belongings be loaded. Justice Tierney found that because there was no tenancy agreement, the Defendant ought to have allowed the Plaintiff to remove all her goods immediately upon demand with no conditions.

7Once the moving man van was fully loaded, the Defendant called a halt to the removal of the belongings and insisted that the truck be removed. There is a dispute as to the quantity of the goods that were left behind. No further attempt to remove the belongings has been made. The Plaintiff initiated proceedings before the Ontario Residential Housing Tribunal. These proceedings failed for one of jurisdiction.

Court’s Jurisdiction

8The Divisional Court has jurisdiction to hear this appeal based on s. 31 of the Courts of Justice Act, as set out below.

31. Appeals – An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action,

(a) for the payment of money in excess of $500, excluding costs; or

(b) for the recovery of possession of personal property exceeding $500 in value.

Standard of Review

9The standard of review for appeals from the order of a judge is widely accepted to be whether or not the decision of the judge was “clearly wrong”. This standard applies both to findings of fact and to the application of legal principles.

10Even when no oral evidence is heard, and a judge’s findings are not based on credibility, they are still entitled to deference from an Appellate Court. In Equity Waste Management of Canada et al v. Corporation of the Town of Halton Hills, 1997 2742 (ON CA), [1997] 35 O.R. (3d) 321 (QL) (C.A.) per Laskin J.A.:

Therefore, although the entire record before a trial judge or a motion judge consists of documentary or written evidence, as it does in this case, the judge's factual findings are entitled to deference on appeal. …

11In an earlier case, the Supreme Court articulated much the same principle:

This court has also held, in Beaudoin-Daigneault, supra, at pp. 8-9, that an appellate court will be justified in disturbing the trial judge's findings of fact only if a specific and identifiable error made by the trial judge convinces it that the conclusion of fact reached is unreasonable, and not one that constitutes a mere divergence of opinion as to the assessment of the balance of probabilities. (Schwartz v. Canada (1996), 1996 217 (SCC), 133 D.L.R. (4th) 289 at 303-6) (QL))

12Judicial discretion should not be interfered with unless it is apparent that the trial judge applied erroneous principles that rendered the result “clearly wrong”. The judge must have acted on a wrong principle or disregarded or misrepresented material evidence.

13A review in court may vary or set aside the decision of a motion’s judge where the judge, “disregarded, misapprehended or failed to appreciate relevant evidence” and “made a finding not reasonably supported by the evidence, or drew an unreasonable inference from the evidence”.

14On questions of law, however, the standard of review is correctness.

Key Issues

Issue Number 1 ─ Did Justice Tierney err in failing to assess the credibility of the parties and give appropriate reasons as to why he preferred the evidence of the Plaintiff to that of the Defendant?

Issue Number 2 ─ Whether the evidence of Constable St. Denis, an independent witness, seriously conflicts with the evidence of the Plaintiff on a number of major points, is consistent with the evidence of the Defendant on those points, and whether Justice Tierney erred in failing to consider the evidence of Constable St. Denis and how it related to the onus of proof.

Issue Number 3 ─ Whether Justice Tierney erred in failing to address the question of whether or not an agreement had been reached between the parties, mediated by the police officers, and whether or not Mr. Miller lived up to that agreement.

Issue Number 4 ─ Whether Justice Tierney applied the appropriate test for punitive damages.

Issue Number 5 ─ Whether Justice Tierney erred in law in not putting his mind to the issue of mitigation of damages.

Issue Number 6 ─ Whether there was sufficient evidence to prove the damages alleged.

Decision

15On the first issue, I find that Justice Tierney did not err and did not fail to assess the credibility of the Defendant. The Defendant was clearly in the wrong and adamantly had defended a wrong position. All of the evidence presented by the Plaintiff, the Defendant and Constable St. Denis gives credibility to the fact that the Appellant was holding the goods of the Respondent and that demanding payment was contrary to the law. In taking the law into his own hands, the Defendant lost most of his credibility with the presiding judge.

16On the second issue, the lack of contradiction between the evidence of Constable St. Denis and the Defendant rests in the fact that the Defendant was clearly in breach of the law. Constable St. Denis served more to placate the Defendant in order to keep the peace.

17On the third issue, Justice Tierney did not err and did not fail to address whether or not an agreement had been reached between the parties, mediated by the police officers. The wrongful tactic of the Appellant to obtain a $500 payment for property that did not belong to him, is akin, at minimal, to the dictionary definition of extortion.

18On the fourth issue, I find that Justice Tierney did err in not applying the proper test for punitive damages. In order for such damages to be awarded, there would have to be a finding of conduct that would be sufficiently “harsh, vindictive, reprehensible and malicious” to meet the test and, as well, there was no clear finding of an independent cause of action.

19On the fifth issue, I find that Justice Tierney did apply his mind to mitigation of damages by reducing the damages accordingly.

20On the sixth issue, there was sufficient evidence before the presiding judge which allowed him to making a finding salvaging damages.

21In the end therefore, the appeal is dismissed, save and except that there will be no award for punitive damages.

22The court’s jurisdiction provides for an upper limit of $10,000. The learned judge’s original award was for $11,600. Deducting therefrom the $2,000 award for punitive damages, the final award and judgment will be for $9,600 with interest to bear in accordance with the Courts of Justice Act.

Costs

23This is not a proper case for costs to be awarded.

Desmarais J.

Released: March 26, 2004

COURT FILE NO.: 02-DV-000773

DATE: 2004/03/26

ONTARIO

SUPERIOR COURT OF JUSTICE

(Divisional Court)