CITATION: Enofe v. Capreit Limited Partnership, 2020 ONSC 7113
DIVISIONAL COURT FILE NO.: 417/17
DATE: 20201215
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
PENNY, MEW, FAVREAU JJ
BETWEEN:
ANDREW ENOFE
Appellant, self-represented
Plaintiff
(Appellant)
– and –
CAPREIT LIMITED PARTNERSHIP
Brian Monteiro, for the Respondent
Defendant
(Respondent)
HEARD: 4 November 2020, at Toronto (by video conference)
MEW J.
REASONS FOR DECISION
(On appeal from the judgment of Stewart J. dated 30 June 2017, with reasons reported at 2017 ONSC 2764 and from the costs order, dated 14 September 2017, with reasons reported at 2017 ONSC 5088)
[1] This appeal arises from the dismissal, after a five-day trial, of an action claiming monetary compensation resulting from alleged damage to the appellant’s personal property, which had been stored at an apartment building managed by the respondent. The appellant was ordered to pay costs of $25,000, inclusive of disbursements and taxes.
[2] The appellant represented himself, both at trial and at the hearing of this appeal.
Background
[3] On 1 July 2013, the appellant, Andrew Enofe applied to rent an apartment in a building managed by Capreit Limited Partnership (“Capreit”). He completed a rental application and provided a security deposit and first and last month’s rent cheques. The application provided that, if accepted by Capreit, a formal written lease would be executed by the parties.
[4] Before any lease was signed, Mr. Enofe picked up the keys to the apartment, viewed it, and noticed that there were signs of insect infestation. He subsequently decided that he did not wish to lease the rental unit after all.
[5] Although Mr. Enofe never actually moved into the apartment and, thus, never became a tenant in the building, Mr. Enofe asked for, and obtained, permission, from one of Capreit’s employees, to temporarily store some of his belongings in the Capreit building. No payment for storage was ever demanded by Capreit in consideration for providing this facility, nor was any offer of payment made by Mr. Enofe.
[6] Mr. Enofe moved furniture and other belongings into a storage room in the basement of the Capreit building. He claims that when, approximately a month later, he attended to retrieve the property, he discovered that some of it had been seriously damaged. Other property was missing. He asserted that the damage was the result of a flood in the basement of the building. He also alleged that some of his possessions had been damaged or had disappeared as a result of vandalism or theft.
The Decision of the Trial Judge
[7] The trial judge made a finding that no lease had ever been entered into by the parties and, to the extent that it might be said that any agreement had been entered into at all, it was simply one for the temporary storage of Mr. Enofe’s property. She found that the circumstances were consistent with the establishment of a legal relationship of bailor and bailee created by the voluntary taking into custody by Capreit of Mr. Enofe’s goods: Punch v. Savoy’s Jewellers Ltd. (1986), 1986 2759 (ON CA), 54 O.R. (2d) 383 (C.A.).
[8] She further found that in the case of a gratuitous bailee, such as Capreit, the applicable standard of care was gross negligence. Consequently, Capreit, as a gratuitous bailee, was subject to keep the goods only as a prudent owner might reasonably be expected to keep its own goods in similar circumstances.
[9] The trial judge concluded that Capreit, as bailee, had discharged its burden of showing that such damage or loss as may have occurred to Mr. Enofe’s property was not the result of gross negligence on its part, or on the part of anyone for whom it was responsible. Indeed, she found that even had the standard of a bailment for hire applied to the facts of the case, she would have concluded that Capreit had not breached any duty which it owed to Mr. Enofe.
[10] The trial judge assessed Mr. Enofe’s damages, in the event that there had been liability, in the total amount of $17,500.
[11] On the issue of costs, the trial judge rejected Capreit’s claim for substantial indemnity costs of $63,000 or partial indemnity costs of $51,702.25. Noting that the action had been brought under the simplified procedure and having regard to the overarching principle of proportionality, costs were fixed in the amount of $25,000, inclusive of disbursements and all applicable taxes.
Issues
[12] Mr. Enofe’s grounds of appeal can be fairly summarised as follows:
a. The trial judge erred in not drawing an adverse inference from the failure of Capreit to call its former employees who were, respectively, the leasing manager and the individual who had given him permission to store his goods.
b. The trial judge applied the wrong legal test and misapprehended the evidence, in finding that there was no breach of a duty of care owed to him by Capreit; and
c. Although the notice of appeal and appellant’s factum do not challenge the trial judge’s assessment of damages, the appellant asks for the trial decision in its entirety, including the costs awarded, to be set aside and a new trial ordered.
Adverse Inference
[13] The appellant asserts that the judge made an error in law by failing to draw an adverse inference from the respondent’s failure to call certain witnesses.
[14] Paul Dube had been the employee of Capreit who allowed Mr. Enofe to store his property in the basement storage room. Washanti Ghetheeswaran had been the leasing person who had dealt with Mr. Enofe’s application. Neither of them were working for Capreit by the time of the trial. However, both of them appeared on a list of witnesses which counsel for Capreit had given to Mr. Enofe and to the court.
[15] After Mr. Enofe had closed his case, counsel for the defendant informed Mr. Enofe and the court that it would not be calling Mr. Dube or Ms. Ghetheeswaran after all. Mr. Enofe raised a concern about this with the trial judge. She told him, quite correctly, that it was open to him to either summons these witnesses himself or to ask the court to draw an adverse inference from the defendant’s failure to call those witnesses. In this regard, the trial judge advised Mr. Enofe:
… you’re entitled to subpoena or you could have subpoenaed somebody as part of your case, because you’re self-represented I’m going to give you a lot of latitude in terms of calling and reply evidence you want or if – you can make an argument that if somebody who would have had very relevant evidence to give is not called by the defendant that I should make an adverse inference against the defendant for failing to call that person and should conclude that that person, if they had been called, would have given evidence that would have been damaging to the defendant. Whether or not that argument succeeds – remains to be seen.
[16] The record indicates that counsel for Capreit provided Mr. Enofe with the last known contact details for these witnesses.
[17] Mr. Enofe did not take up the option of summoning these witnesses. When asked whether he was going to call reply evidence, he indicated that he would not be calling reply evidence but would ask the court to draw an adverse inference from the absence of these witnesses.
[18] The submissions made by the parties to the trial judge were not transcribed. We are prepared, nevertheless, to accept Mr. Enofe’s assertion that the adverse inference issue was raised at that time.
[19] The trial judge’s reasons do not make any reference to the adverse inference issue. From an examination of the record, however, and in particular of the exchanges between the parties and the court, it is clear that the court was aware of Mr. Enofe’s concerns about the witnesses who had not been called, and that Mr. Enofe knew and understood that he had the option to either call them as witnesses himself (by serving a witness summons on them if necessary) or ask the court to draw an adverse inference.
[20] Despite the lack of any reference in the reasons of the trial judge to whatever arguments may have been made by the parties concerning the two witnesses, it does not follow that as a matter of course, an appellate court cannot undertake a meaningful appellate review of her decision. Rather, as this court recently observed in Krizans v. Skurdelis, 2020 ONSC 4386 (Div. Ct.), at para. 70:
In considering whether reasons have fulfilled that function, the reviewing court should read the reasons as a whole, “in the context of the evidence, arguments and the trial, with an appreciation of the purposes or functions for which they are delivered”: R. v. M. (R.E.), 2008 SCC 5 at paras. 15-17.
[21] In the present appeal, despite the absence of any express reference to the adverse inference argument in the trial judge’s reasons, it is clear that the trial judge was fully alert to the issue and that it informed her decision on the merits. Furthermore, Mr. Enofe was extended every opportunity to deal with the issue of the two witnesses who he felt should have been called.
[22] I would add that, before us, Mr. Enofe did not identify what evidence he expected the witnesses might have provided that would have affected the result at trial.
[23] Accordingly, and taking into account the context of the evidence, arguments and the conduct of the trial, the failure of a trial judge to include a reference to the adverse inference issue does not, in my view, provide a sustainable ground of appeal.
Finding of No Breach of Duty
[24] The determination of whether or not the parties entered into a contractual relationship required the trial judge to make findings of fact. The trial judge found that no lease had been entered into between Mr. Enofe and Capreit. Nor was there evidence of any other contract between them. It was open to her to make these findings on the evidentiary record before her. We see no palpable or overriding error that would warrant interfering with her decision on this issue.
[25] Having found that there was no contractual relationship between the parties, the trial judge considered whether, independent of a contract, the legal relationship between them, in relation to Mr. Enofe’s property, was one of bailor and bailee. She applied the correct legal test to this task, as set out in Punch v. Savoy’s Jewellers Ltd.
[26] The trial judge went on to determine whether Capreit was a bailee for hire or a gratuitous bailee. She found that it was the latter. As a result, she applied the standard of care applicable to a gratuitous bailee, namely gross negligence: Grafstein v. Home & Freeman, 1958 97 (ON CA), [1958] O.R. 296 (C.A.). She articulated this test correctly.
[27] Applying the test to the evidence before her, the trial judge concluded that Capreit had shown that it was not grossly negligent. Her specific findings in this regard included the following:
a. Mr. Enofe’s property had been placed in a locked room in the building’s basement. Access to the room was limited to authorised employees.
b. Mr. Enofe had made no complaint about the nature of the storage space when he moved his property into it, nor had he raised any issue about the apparent degree of security.
c. There was no evidence of a rash of break-ins, burglaries or vandalism in the building or of unauthorised intrusion into the room where the property was stored.
d. There was a system of frequent and regular maintenance checks.
e. Although photographs taken by Mr. Enofe when he retrieved his property showed some liquid staining on the cement floor of the room, there were no signs of any major flooding as was alleged to have occurred.
[28] The trial judge concluded that Capreit ran a professional and competent operation.
[29] The trial judge applied the correct legal tests and the findings of fact which she made were available to her based on the evidentiary record. They are entitled to deference.
Disposition
[30] Given our disposition of the first two issues identified by the appellant, there is no basis for setting aside the trial decision in its entirety and to order a new trial.
[31] The appeal is, accordingly, dismissed.
[32] Mr. Enofe is ordered to pay Capreit costs of the appeal fixed in the amount of $5,000.
Mew J.
I agree _______________________________
Penny J.
I agree _______________________________
Favreau J.
Released: 15 December 2020
CITATION: Enofe v. Capreit Limited Partnership, 2020 ONSC 7113
DIVISIONAL COURT FILE NO.: 417/17
DATE: 20201215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PENNY, MEW, FAVREAU JJ
BETWEEN:
ANDREW ENOFE
Plaintiff
(Appellant)
-and-
CAPREIT LIMITED PARTNERSHIP
Defendant
(Respondent)
REASONS FOR DECISION
Released: 15 December 2020