DIVISIONAL COURT FILE NO.: 171/16
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: kAREN kHACHATRYAN AND rAFAYEL kHACHATRYAN (Appellants/Defendants)
- and -
MILLECENT SOOKEDEO AND SEENAUTH SOOKEDEO (Respondents/Plaintiffs)
BEFORE: Justice Swinton
COUNSEL: Jonathan Kleiman, for the Appellants/Defendants
Solomon Ross Fischhoff, for Millecent Sookedeo, Respondent/Plaintiff
HEARD AT TORONTO: January 9, 2017
E N D O R S E M E N T
Introduction
1The appellants Karen Khachatryan (“Karen”) and Rafayel Khachatryan (“Rafayel”) initially appealed from the March 14, 2016 decision of Deputy Judge Kay respecting two actions. In the first action, the trial judge gave judgment for the respondent Millecent Sookedeo and awarded her $25,000 for damage to her personal property plus costs. He dismissed the action as against her deceased husband. In the second action, he dismissed the appellants’ action against Annette and Theodore Vais and awarded them costs.
2During the oral hearing of this appeal, the appellants abandoned their appeal of the Vais decision. They had raised no grounds of appeal respecting this decision in their Notice of Appeal and included no arguments about it in their factum.
3With respect to the Sookedeo appeal, the appellants raised a large number of grounds in their factum that were not set out in their Notice of Appeal, which contained bald statements about errors in law and fact. In their oral argument, they focused on three arguments:
The trial judge erred in assuming jurisdiction to determine whether Mrs. Sookedeo was a tenant, as that issue was within the exclusive jurisdiction of the Landlord and Tenant Board (“the Board”). That issue had been determined by the Board in a decision in October 2012, which found the Sookedeos were not tenants. Consequently, the Board could not deal with their claim for relief.
The trial judge erred in finding that an Acknowledgement signed by the Vais was without legal effect.
The trial judge acted improperly, in that he humiliated Karen, a self-represented litigant, and did not treat him fairly.
Background
4The main issue at trial was the liability of the appellants for damage to the respondent’s personal property. A detailed account of what occurred is found in the oral reasons of the trial judge. In short, Rafayel purchased the home in which the Sookedeos were living. Karen had initially tried to purchase it, but when he could not obtain financing, he acted for his son Rafayel in purchasing the home. Rafayel was not in Ontario at the time.
5The registered owners were the Sookedeos’ daughter and son-in-law, the Vais. The closing was April 17, 2012, and the Vais agreed to give vacant possession by April 30, 2012. Karen, the controlling mind of the transaction, knew that the Sookedeos were living in the property. According to Karen’s testimony, he was also informed by the Sookedeos after closing that they had commenced a proceeding before the Board.
6The Sookedeos did not move out on April 30. When Karen learned that the premises had not been vacated on April 30, he and others removed the Sookedeo’s furniture, clothing and other belongings and placed them on the front lawn and beside the house. There were photos in evidence that showed most of the possessions were not wrapped in plastic, although it rained that day. Clothing, mattresses and electronics were placed on the ground, as were framed family pictures.
7The trial judge found that the Sookedeos were tenants of the premises. However, he went on to state that whether or not they were tenants, Rafayel, as the purchaser of the property, and Karen, as the person who controlled the property on his behalf, were bailees of the Sookedeo’s property (Transcript, p. 12). As such, the appellants “had an obligation to maintain the integrity of that (personal) property and could not destroy it or deliberately damage it” (Transcript, p. 12). The appellants had a responsibility to use care in their treatment of the Sookedeos’ property, even if the Sookedeos were occupants (Transcript, pp. 14-15). The trial judge found that Karen failed to act with due care in the treatment of the property, placing it outside on a rainy day, which resulted in extensive damage to the property. Some of the property was never returned, despite a Board order that the respondent be allowed access to obtain the property on a set day in early May.
Analysis
8Even if the trial judge erred in finding a tenancy or in finding that the Acknowledgement was void, those findings do not affect the soundness of the decision on liability and damages. I see no error on the part of the trial judge in finding liability of the appellants and awarding damages to the respondent. The Board’s decision did not deal with the claim respecting damage to the personal property.
9The trial judge did not err in finding that the appellants were gratuitous or involuntary bailees in the circumstances. As such, they are liable for damage caused by their gross negligence or deliberate acts (Whash v. Chigani, 2012 CarswellOnt 9194 (S.C.J.) at para. 17; Chiaravalloti v. Leading Edge, 2012 ONSC 4554 (S.C.J.) at para. 15; Landry v. Grunwald, [1986] B.C.J. No. 1889 (S.C.) at p. 2 of 4 (Quicklaw)).
10Karen knew that the Sookedeos were living in the house, and they had not abandoned their possessions. While they should have moved out by April 30, that does not justify Karen’s cavalier treatment of their property. According to police notes at the time, he was told by police officers that they had called the Board, and he was advised not to remove the property. Given the way Karen treated the property, the trial judge appropriately found that Karen was grossly negligent. He made no effort to move the possessions to a sheltered place, as in Landry above, or to have them removed to storage. Moreover, some of the property was never returned despite an order from the Board that the Sookedeos be allowed access to get their property.
11The appellants have not taken issue with the trial judge’s findings of fact with respect to the damage caused. Similarly, there has been no challenge to the finding respecting the amount of the damages. Therefore, I would not interfere with the finding of liability and the award of damages.
Allegation of Bias
12Moreover, there is no merit to the argument that the trial judge’s conduct gave rise to an apprehension of bias. The trial judge made adverse findings respecting Karen’s credibility, and explained why he did so. On my reading of the transcript, the trial judge did not intervene inappropriately so as to render the trial unfair.
Disposition and Costs
13Accordingly, the appeal is dismissed. The respondent is entitled to her costs of the appeal. While I received costs outlines at the end of oral argument, the respondent requested an opportunity to make further brief written submissions on costs if she should succeed on the appeal. Those submissions shall be submitted to the Divisional Court office within 10 days. The appellants shall have 10 days to respond.
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Swinton J.
DATE: January 17, 2017