Brydges v. Johnson, 2015 ONSC 2695

CITATION: Brydges v. Johnson, 2015 ONSC 2695

DIVISIONAL COURT FILE NO.: DC-14-72-00; DC-14-73-00

DATE: 20150424

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JUSTICE R. TZIMAS

BETWEEN:

RAMONA BRYDGES

Mr. Pietrangelo, for the Plaintiff (Respondent)

Plaintiff (Respondent)

• and -

DAVID JOHNSON and ALICE PARKER

David Johnson and Alice Parker on their own behalf

Defendants (Appellants)

HEARD: April 2, 2015 at Brampton

1This is an appeal by David Johnson and Alice Parker (the Appellants) from the judgment of Deputy Judge G. Bobesich of the Guelph Small Claims Court, Claim No. 10-156 dated July 9, 2014. The Respondent is Ramona Brydges. For the reasons that follow, the appeal is allowed.

BACKGROUND

2The claims of the parties arise out of a landlord tenant dispute in relation to a residential property located at 1204 Gordon Street, Guelph, Ontario. The Appellants entered into a lease agreement with the Respondent, on August 10, 2000. The rental term began on September 1, 2000 and the monthly rent payable was set at $1,250.00.

3In 2007 an issue surfaced with respect to the accumulation of excessive garbage outside of the residence. The City raised the concern with the Respondent and the Respondent in turn spoke to the Appellants and asked them to clean up the garbage. The Appellants allegedly failed to comply with the request and on December 28, 2007 the City issued a Property Standards Order. In light of this problem, the Respondent applied to the Landlord and Tenant Board to have the Appellants evicted.

4In the period between December 2007 and February 10, 2010 the Appellants challenged the eviction through all of the various channels, including appeal proceedings that were available to them. They exhausted those channels without success. On January 29, 2010 the Sheriff issued and posted a Notice to Vacate. The Appellants were required to vacate the premises by February 5, 2010.

5The Appellants resisted the Notice to Vacate. That required the police’s intervention. Eventually the Appellants left the premises, though they allegedly ran out of time to remove many of their belongings including two cars that were parked in the driveway.

6The Respondent commenced an action against the Appellants for the recovery of unpaid rents and expenses incurred for the repair and clean-up of the rental unit. The Appellants counterclaimed damages in the sum of $24,000.00 representing the value of their personal belongings that they say the Respondent threw out without any regard for their value.

7The trial, which was originally scheduled for only one day, took place over two days. The first day took place on August 28, 2013. The Court heard from two witnesses. The first witness gave evidence in chief and was cross-examined fully by Mr. Johnson. The second witness completed only his evidence in chief. It became obvious to the Court that a second day would be required and the trial was adjourned to another date. That second day was not scheduled until almost a year later, on July 2, 2014.

8The Appellants misidentified the date for the continuation of the trial and as a result of that error; they failed to attend on the second day of trial. The Court staff paged the Appellants and when they did not appear, the Court invited counsel for the Respondent to make his closing submissions. No inquiries were made by either the court or the Respondent to determine whether there was an explanation for the Appellants’ absence.

9The court released its judgment on July 9, 2014 wherein it awarded judgment to the Respondent in the sum of $24,022.00 as well as pre-judgment interest at 3% commencing from March 4, 2010, post-judgment interest at 3% and costs fixed at $4,325.00 inclusive of disbursements. In addition, the Appellants’ claim was dismissed without costs. The Appellants appealed the judgment to this Court.

ANALYSIS

10The issue before this Court is whether the trial judge made palpable and overriding errors of fact and law in his determination of the claims before him. That is the standard of review for an appellate court when it reviews a trial judge’s finding of facts: see Housen v. Nikolaisen (2002) 2002 SCC 33, 2 SCR 235.

11The Appellants argued that the trial judge erred in fact and in law in a number of ways. They submitted that the judge erred in law when he failed to find that the Appellants did not breach Guelph’s by-law and that the eviction was not legal. They also identified a number of errors in the trial judge’s factual findings.

12The Respondent disputed the grounds of appeal. With respect to the alleged errors of law, the Respondent submitted that those issues were immaterial to the claim before the court. For the remaining grounds, the Respondent argued that the factual findings were supported by the evidence and did not reflect any palpable and overriding errors of either fact or law.

13As a preliminary observation, it is important to recall that the Respondent’s claim was for unpaid rent and for damages arising out of the disposition of the Appellants’ property and the damages allegedly found in the leased premises. The Appellants’ counterclaim was for damages arising out of the Respondent’s disposition of their property. The issues for the trial judge were to determine what if any rent was outstanding by the Appellants and what if any damages were incurred by both parties as a result of the eviction. The claim was not about the Appellants’ characters or the merits of the underlying charges by the City of Guelph.

14Having full regard of the Appeal Record, the transcripts of the trial, the judge’s decision, and on hearing the submissions of the parties, I find that the trial judge made two overriding and palpable errors of fact and law that cannot be overlooked. The first rests with the fact that the trial judge’s findings of fact were coloured by his assessment of the Appellants’ character and by the broader context that gave rise to the Appellants’ eviction.

15The second, and more serious one relates to the trial judge’s decision to proceed to conclude the trial and to make findings of fact on an incomplete evidentiary record, without giving any due regard to the Appellants’ unexplained absence on the second day of trial. That decision resulted in a cascade of errors in the Court’s factual findings. Those errors can only be addressed by a new trial, before a different judge. Each of these concerns is reviewed below.

16Beginning with the underlying context that gave rise to the Appellants’ eviction by the Respondent, although I agree with the Respondent’s submission that the by-law breach and the legality of the eviction were irrelevant to the assessment of the damages claimed, the trial judge clearly concluded otherwise. He relied on that context to assess the evidence before him and to make his various factual findings. His approach is most pronounced in paragraph 17 of the judgment where he concluded that, “the tenants as well caused trouble for the landlord with the Town given the garbage that they kept outside the house.” The trial judge made that finding even though in the course of the first day of trial, Mr. Johnson brought to his attention his acquittal of the municipal charges and the trial judge told him that he could lead that evidence when it was his turn to testify. Paragraphs 11 and 19 reflected a similar attitude and an expressed dislike of the Appellants by the trial judge.

17The repeated references in the judgment to the broader context as a measure of the Respondent’s damages, is problematic and amounts to an error of law. That context has no bearing on the assessment of whether or not the Appellants owed rent to the Respondent and if so how much, whether their failure to remove all of their belongings from the leased premises caused the Respondent damages, and finally whether the Appellants caused damages to the leased premises. Comments about the “type of people” the Appellants were, as reflected in paragraph 11 or that they caused trouble for the landlord with the Town ought not to have any bearing on the assessment of the damages claimed by the Respondent.

18The more problematic, palpable and overriding error on the court’s part rests with the trial judge’s decision to continue the trial in the absence of the Appellants, and then to make findings of fact on an incomplete evidentiary record. The Appellants’ absence on the second day of trial, which took place almost a year after the first day of trial, should have raised serious concerns for both the trial judge and the Respondent, especially given the Appellants’ vigorous opposition to both the eviction proceedings and the claim. The Appellants participated very actively on the first day of trial. Mr. Johnson made it clear that he intended to testify. When he ran into difficulties with some of the evidence he was trying to introduce through his cross-examination of Mr. Brydges, the trial judge expressly recognized that as a self-represented individual it was understandable that he might not appreciate the evidentiary rules and explained to him that he could lead the subject evidence when he testified. Mr. Johnson accepted that guidance. Finally, the trial judge was made aware of the Appellants’ extensive efforts to avoid eviction. To the extent that anything could be said about the Appellants, it was evident that they would not be going away without a defence.

19In light of the Appellants’ overall conduct, the Appellants’ unexplained absence on the second day of trial was entirely out of character. The concerns over the Appellants’ whereabouts could have been addressed by a short adjournment and at the very least an attempt at a phone inquiry to find out whether there was a problem with the Appellants, whether they were ill, whether something unanticipated occurred, or whether there was some explanation for their absence. Instead the only effort to locate the Appellants was to page them in the courthouse. Paging would assist if the Appellants were in the building and could hear the page. But if parties were not in the building, no amount of paging would solve the problem of their absence.

20The trial judge’s decision to conclude the trial in the absence of the Appellants might have been salvageable, had he limited his findings to the evidence before him. But the trial judge went further and committed a number of palpable and overriding errors in his findings of several facts. In effect, the trial judge filled in the blanks of the incomplete evidentiary record by drawing inferences based the “types” of individuals he believed the Appellants to be.

21The trial judge premised his findings on the view that a trier of fact may believe all, none, or some of a witness’ evidence and that he may also weigh the evidence as he or she considers appropriate. While that is correct, a trier of fact cannot make findings on the basis of an evidentiary record that is rendered incomplete by a truncated proceeding. The situation would have been quite different if the Appellants had been noted in default or if they had ignored the claim and the proceedings. But this was not the case with these Appellants.

22To illustrate the point, in paragraph 11 of the trial judge’s decision, following a review of the litigation and procedures that led to the Appellants’ eventual eviction, he made the observation about the “type of tenants” the Appellants were since they had not paid a cost award for over five years. Before this Court, Mr. Johnson contested both the characterization and that finding. He never had the opportunity to lead his evidence on this point at trial.

23On the subject of the credibility of the witnesses who did testify, the trial judge concluded that both were very credible. But the second witness, Paul Brydges was never cross-examined; this was to have occurred on Day 2 of the continuing trial. The court’s conclusion that he was a credible witness was flawed because his evidence was not tested. The trial judge appeared to rely on a collection of photographs and a police report as corroborative evidence to Paul’s evidence. Indeed, on their face, those photos would cause anyone to pause and be concerned about what was depicted in them. But in his submissions before this court, Mr. Johnson took issue with the police report that suggested they had ample time to move out. He also suggested that the photos did not represent the complete evidence.

24To illustrate the difficulty with the photographs, as compelling as some of them appeared, the Respondent denied having any knowledge of the two vehicles that the Appellants said were left behind when they were forced to leave the subject premises. Yet the photographs show the two vehicles in question. That discrepancy, one would expect, would be explored both in cross-examination and through other evidence. Insofar as the trial judge relied on photographs of the premises to make some of his findings, he had no evidence to explain the discrepancy between the Respondent’s evidence concerning the cars and the photos.

25In addition, the factual findings in paragraphs 13, 14 and 15 of the trial judge’s judgment could not be supported by the photographs or the police report as they related to Paul’s observations and Paul’s conduct. Mr. Johnson’s submissions before this Court suggested that he had a competing version of the events that related to his departure from the premises and the sufficiency of the time for the removal of his belongings. This evidence, which the court did not hear, would have been vital to the determination of the damages component of the Respondent’s claim as well as the Appellants’ counterclaim.

26Finally, even on the question of what was outstanding in terms of rent payments, the evidence before the trial judge was incomplete. Mr. Johnson admitted before this court that he owed 13 months in outstanding rent. But he also indicated that the judgment failed to take into account certain credits, including the payment of last month’s rent, which is typically advanced at the beginning of a lease agreement. Before this court, counsel for the Respondent acknowledged that the accounting on the outstanding rent was confusing at the very least.

27Finally, the cumulative effect of the errors in the court’s factual findings are reflected in paragraphs 16 and 19 where the court concluded that the landlord did everything properly in the disposition of the Appellants’ property and that the items that, after four days of removal time, were abandoned by the Appellants, could not have been of great value. Had the court had the opportunity to hear Paul’s cross-examination and Mr. Johnson’s evidence, it would have had to reconcile and make findings of fact that took into account Mr. Johnson’s competing contentions that a) he had only two days and not four as alleged, to remove his property; b) he did not abandon his property but was forced to leave; and c) he had two cars on the property that were not accounted for when it came to the court’s assessment of damages.

28The Court would have also had the opportunity to receive Mr. Johnson’s evidence of the value of his property, his explanation on whether or not the alleged damages occurred, Mr. Johnson’s reconciliation of what monies were owed, and finally his argument that only he and not Dr. Parker, was liable for the outstanding rental payments.

29In the circumstances, the only appropriate remedy is for the judgment to be set aside, the counterclaim to be reinstated and a new trial to be held. In coming to this conclusion I am very mindful of the need to limit the number, length, and costs of appeals. I am also mindful that trial judges are typically in the best position to make findings of fact given their extensive exposure and familiarity with the evidence before them. But I am also mindful of the requirement that a trial be just and fair for all parties concerned and that a judgment be the result of a fair trial process. In this instance, trial judge’s exposure to the evidence was incomplete and the findings of fact were not the result of a fair and just trial process. The demonstrated bias against the Appellants requires that a new trial be heard by a different judge.

30To be clear, this is not to say that at the end of the day the Appellants will necessarily be successful at the conclusion of a new trial. Nor should the Appellants take much comfort from the outcome of this appeal. The evidence presented to date, while not conclusive, raises a number of very serious and unanswered questions. What the Appellants are being afforded by the outcome of this appeal is the opportunity to have a fair and just proceeding that will enable them to put forward their evidence in support of their defense and their allegations. This will enable the court to clarify the outstanding rent owed and to make findings on the magnitude of the damages claimed both in the claim and the counterclaim. Should the Appellants be unsuccessful, the outcome of this appeal may prove to be a very costly pyrrhic victory. I also note that given Mr. Johnson’s admission that rent monies are owed but that the exact figure remains in dispute, the parties ought to seriously consider the reconciliation of that issue and simplify the remainder of the issues for trial.

FINAL DISPOSITION

31Given my findings, the judgment of July 9, 2014 is set aside, Mr. Johnson’s and Dr. Parker’s counterclaim is reinstated and a new trial of the claim and counterclaim is ordered. Such trial is to be before a different trial judge.