Court File and Parties

COURT FILE NO.: 446 /19 DATE: 2020-08-11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Chris Cormpilas, Barbara Cormpilas, Dimitry Ioannidis, and Gregory Ioannidis, Applicants AND: John Ioannidis, Respondent

BEFORE: Kurz J.

COUNSEL: Joanne Lagoudis, for the Applicant Chris Tonks, for the son

HEARD: July 31, 2020 - by Zoom Teleconference

Endorsement

Introduction

[1] It is well known to those who till the soil of estate litigation that, to paraphrase a biblical phrase, the errors of the parents are oft visited on their descendants. Here, that error arose when two parents, who together owned their home in Georgetown (“the home”), failed to agree on how they would pass it on to their descendants. Whatever discord caused them to pull the ownership of the home in opposite directions did their beneficiaries no great service.

[2] The Applicants, the beneficiaries of one parent’s half-interest in the home, have sued the Respondent, the beneficiary of the other half-interest. The grandchildren originally sought partition and sale of the home, occupation rent or damages for unjust enrichment, and damages for the condition of the home when they obtained full title and occupancy. The parties have now settled all issues but occupation rent/unjust enrichment and damages. I am now called upon to determine those final issues as well as the costs of this proceeding.

Background

[3] The parties are all descendants of the late Gregory and Barbara Ioannidis (“Gregory” and “Barbara”). The Applicants (the “grandchildren”) are Gregory and Barbara’s grandchildren, while the Respondent (“the son”) is their son. Gregory and Barbara had two other children, who are not parties to this application. The son is the uncle of the grandchildren.

[4] Even after they separated, Gregory and Barbara lived together in the home, which they owned as tenants in common. That legal form of co-ownership meant that when Barbara died in 2012, her half interest in the home went to the beneficiaries of her will, the grandchildren. The same was true of Gregory, who died on November 4, 2017, bequeathing his interest in the home to the son.

[5] After Barbara’s death, the son, his common law partner and their children moved into the property to take care of Gregory. They remained there, rent-free, until April 30, 2020. However, they took care of Gregory until his death. There is no present issue between the parties as to the son’s payment of property taxes, insurance or utility payments during the term of his exclusive occupation.

[6] Even before they received title to the property in 2016, the grandchildren were eager to realize upon the value of their inheritance. Discussions and negotiations seem to have take place over a number of years. However the grandchildren did not wish to displace their grandfather or seek any rent from him. However after Gregory died, they became more insistent in their understandable desire to reap the benefits of their inheritance. The son was unwilling to either move or buy out the interests of the grandchildren at a cost that they would accept.

[7] In February 2019, the grandchildren commenced this proceeding. While the parties engaged in previous discussions about the payment of rent, the Application that commenced this proceeding represented their first formal request for occupation rent. The son refused to pay any rent or to sell the home. He even resisted allowing the grandchildren access to the home in which they shared ownership. In other words, he treated it as his own home. There is no question that he (along with his family) held de facto exclusive possession of the home from the time of Gregory’s death until he moved out on April 30, 2020.

[8] On January 13, 2020, the parties settled the issue of ownership and possession of the home. They signed Minutes of Settlement whose terms included the son’s obligation to vacate the home by April 1, 2020 and transfer his interest in it to the grandchildren for a sum to be determined. That sum was to be based upon an updated appraisal of the value of the Home by Hendren Appraisals. The figure turned out to be $691,114. When the son failed to comply with the minutes by vacating the house, the grandchildren moved before Conlan J. on April 1, 2020.

[9] Conlan J. ordered that "the Minutes of Settlement executed by the parties on January 13, 2020 shall be complied with in all respects". When the son still did not obey, the grandchildren again moved before Conlan J. The parties ultimately agreed to terms that included the son vacating the home and transferring his interest in it to the grandchildren on April 30, 2020. That has now occurred. Conlan J. ordered the son to pay costs of $5,000, which he has not yet paid.

[10] The parties also agreed that the issues of occupation rent/unjust enrichment and damages would be determined at a separate hearing, which I have now conducted.

[11] The issues raised before me by the parties are:

1. Are the grandchildren entitled to the payment of occupation rent by the son for the period between November 2017 and April 2020, and if so at what rate?
2. In the alternative, are the grandchildren entitled to damages for unjust enrichment arising out of the son’s occupation of the home between November 2017 and April 2020?
3. Are the grandchildren entitled to damages for the condition of the property when the son vacated it and for items that he removed from the property.

Summary of Findings to Follow

[12] As set out below I find that the grandchildren are entitled to the payment of occupation rent of $22,500. That is an equitable remedy for the son’s unjust enrichment arising from his unilateral exclusive occupation of the home at the grandchild’s expense. They are also entitled to the payment of $900 for damage to a hardwood floor and $5,873.74 for items removed from the home. I find that the remaining damages claimed in regard to the condition of the home on closing on April 30, 2020 were already factored into the price at which the grandchildren purchased the home. To award damages in addition to the diminution of the sale price would amount to double recovery.

Issue No. 1: Are the grandchildren entitled to the payment of occupation rent by the son for the period between November 2017 and April 2020, and if so at what rate?

[13] From the time of Gregory’s death onwards, the grandchildren clearly wanted the son to either buy out their interest in the property or vacate it so that it could be sold. The details of their negotiations are not before me, but on April 20, 2018, the grandchildren wrote a demand letter to the son, which I discuss below. The grandchildren demanded that the son agree to sell the property or buy it from them at an agreeable price. He refused. The letter refers to a previous request during the course of their negotiations, but does not cite it as a present demand.

[14] The next reference to occupation rent came in the Application itself, issued about ten months after the demand letter, on February 1, 2019. In their Application, the grandchildren make their claim for occupation rent. They seek it for the 30 months between November 2017, the month that Gregory died, and April 2020, when the son finally vacated the home. The grandchildren claim $1,770 per month for occupation rent, representing 50% of the amount set out in a real estate agent’s letter of opinion, stating that the market rent for such a property was $3,540 per month. As I state below, I find that the grandchildren are entitled to some occupation rent but for a lesser period and for a lesser amount than the grandchildren have claimed.

Law Regarding Occupation Rent

[15] The grandchildren says that their claim to occupation rent arises out of s. 122(2) of the Courts of Justice Act. Section 122(2) states that:

An action for an accounting may be brought by a joint tenant or tenant in common, or his or her personal representative, against a co-tenant for receiving more than the co-tenant's just share.

[16] Their citation of that provision is accurate to a point only. As Steinberg J. wrote at para. 16 of Foffano v. Foffano, [1996] O.J. No. 3284 (S.C.J.), s. 122(2) preserves the common law rights of co-tenants not in possession to demand an accounting of rents paid to a co-tenant in possession. He explained that common law right as follows:

13 At common law, a tenant in possession had no duty to account for rents and profits from property to a co-tenant not in possession. An obligation to so account to his co-tenants was imposed upon him by the courts of equity, more often than not, in a partition suit. See Hill v. Hickin [1897], 2 Ch. 579, 66 L.J. Ch. 717, 77 L.T. 127, 46 W.R. 137, and Leigh v. Dickeson (1884), Q.B.D. 60, [1881-5] All E.R. Rep. 1098, 54 L.J.Q.B. 18, 15 L.T. 790, 33 W.R. 538.

14 It was within the accounting process that the tenant in possession could be charged with an occupation rent. In Pascoe v. Swan (1859), 27 Beav. 508, 29 L.J. Ch. 159, 1 L.T. 17, 5 Jur. N.S. 1235, 8 W.R. 130, for example, the report reads:

The Master of the Rolls [Sir John Romelly] held that the Defendant must be considered as having entered upon the estate of the infant and must account for the rents received by him since the death of Mrs. Swan; that in taking the account, the Defendant must be charged with a proper occupation rent for one-third of the estate; but must be allowed for lasting improvements.

[17] That being said, as the law in Ontario has now evolved, most claims for occupation rent are not based on s.122(2) of the Courts of Justice Act. Rather, the common law remedy of occupation rent applies to the breach of a land owner (or co-owner’s) rights, whether for the breach of a presumed term of an expired lease, trespass, or unjust enrichment. The remedy is one that resides at the intersection between common law, whether equity, contract law or property law, and statute. Particularly in the family law context, where the claim for occupation rent is most frequently made, it mainly resides in the penumbra of rights granted by statute.

[18] Claims for occupation rent are frequently seen in the family law context because many spouses share ownership of real estate, such as a matrimonial home. In those cases, a claim to occupation rent may arise as part of broader claims under family law legislation. For example, the Family Law Act (“FLA”) grants the matrimonial home a privileged position among all property owned or possessed by spouses. While both spouses have a presumptive equal right to possession of the matrimonial home (FLA s. 19(1)), a court may grant one spouse exclusive possession of the matrimonial home (s. 24(1)(b)). Under s. 24(1)(c), the court may order “periodic payments” to an ousted spouse when the other spouse is granted exclusive possession of a matrimonial home (see Alsawwah v Afifi, 2020 ONSC 2063 at para. 63). While s. 24(1)(c) is not dependant on property ownership by either party, and does not refer to “occupation rent”, the right to exclusive possession has been used as the justification for ordering the payment of occupation rent (see Katz v. Katz, 2010 ONSC 158 at para. 207).

[19] In addition, occupation rent has also been granted as an outgrowth of FLA s. 5(6), dealing with a claim to an unequal division of net family property (although that provision makes no specific refence to the remedy). Since the test for an unequal division of the parties' net family property is whether an equal division would be unconscionable, Quinn J. of this court applied the unconscionability test to a claim for occupation rent in Higgins v. Higgins, , [2001] O.J. No. 3011 (S.C.), at para. 39.

[20] Further, in Foffano v. Foffano, cited above, Steinberg J. stated at para. 24, that claims for occupation rent made by one spouse against the other spouse in regard to a matrimonial home “…will be granted only in the exceptional case" (see also Withers v. Withers, 2013 ONSC 1665, at para. 76). Steinberg J. expressed the policy reasons for that view in para. 22, which remain valid today within the family law context, as follows:

If, as the present law seems to be, no ouster need be proved for a joint tenant not in possession of the matrimonial home to claim occupational rent, that opens the door to such claims solely to counter legitimate claims for spousal and child support and equalization of net family properties. That was alluded to by Justice Casey Hill in McColl v. McColl, supra, at page 456. It makes little sense, in the vast majority of cases, that a non-dependent spouse or parent should be entitled to occupation rent simply because he or she left the matrimonial home and allowed his or her dependent spouse and children to occupy it. The right to occupation rent arose from the equitable remedy granted to a co-tenant not in possession to obtain an accounting from the tenant in possession, and at least one court considered that the use of the property in the affairs of "the whole family" did not give rise to the payment of occupation rent.

[21] Those policy reasons do not apply in a non-family law context. In those circumstances, the remedy of occupation rent has been seen as an outgrowth of common law principles of contract, property law and equity. In Busenius v. Busenius, 2006 ABQB 162, Clackson J. of the Alberta Court of Queens Bench discusses the rationale for the concept of occupation rent as an attribute of common law property principles as follows:

[88] The concept of "occupation rent" is a common-law attribute of the joint ownership of property. At common law, all joint tenants have an equal right to the occupation of the whole of the premises, and neither had the right to exclude the other. In limited circumstances the Courts would recognize a right to occupation rent in favour of the joint tenant who was out of possession. In his book Principles of Property Law (Scarborough: Carswell, 1993) Professor B. Ziff summarizes the law with respect to occupation rent at p. 266:

These rules require elaboration. Given that all co-tenants are inherently entitled to possession of each and every part of the property, no matter the size of their individual shares, one co-owner cannot exclude or "oust" another (say, by changing the locks). Not only is this direct action unlawful, but also where the conduct of one co-owner is so egregious that one would not expect the other party to remain, this amounts to a constructive ouster. If a party is locked out or forced to leave by the expulsive conduct of the other, the remaining owner may be charged with an occupation rent. No occupation rent is normally payable simply because one owner has enjoyed exclusive possession. However, where, on partition, the party in possession makes a claim for reimbursement for the payment of current expenses, a counterclaim for occupation rent may be entertained. The amount of rent ordered is often based on an estimation of the market value of property (divided by the number of co-owners), but sometimes it is pegged at the cost of current expenses. (footnotes omitted, emphasis added)

[22] In Dagarsho Holdings Ltd., v. Bluestone, , [2004] O.J. No. 2654 (S.C.J.), Karakatsanis J. of this court, as she then was, described the remedy of occupation rent in a non-family law context as an equitable one at para. 26, writing:

Occupation rent is an equitable remedy. The often cited general principle of occupation rent is that "if a person is in occupation without a lease, although the relationship of landlord and tenant will not exist, the law will imply a contract for payment to the landlord or a reasonable amount for the use and occupation of his land": Young v. Bank of Nova Scotia (1915), , 34 O.L.R. 176, 23 D.L.R. 854 (Ont. C.A.). The principle is based upon the presumption that the parties have agreed to reasonable compensation. That presumption can be rebutted by evidence that the parties intended that the occupation be without compensation. Occupation rent is also an appropriate measure of damages for trespass and unjust enrichment.

[23] In Dagarsho Holdings, a mother allowed a son to occupy a property owned by her corporation as well as an adjacent coach house, rent free until it was sold. At the time of the sale, the son refused to move. Instead, he registered a certificate of pending litigation and sued to claim ownership of the property. When a tenant moved out of a third, nearby property owned by the mother’s company, the son took possession if it too. He rented it out and kept the proceeds, all without the maternal owner’s consent.

[24] At trial, the son attempted to withdraw his claim to ownership, but was not allowed to do so. He chose to call no evidence. The court then heard the claim for occupation rent by the mother’s corporation, on an uncontested basis. In granting occupation rent, the court relied on principles of unjust enrichment, looking to specific properties and determining whether the son was unjustly enriched by his occupation or control at specific periods of time. Karakatsanis J. applied occupation rent as an equitable remedy for both the tort of trespass and for the son’s unjust enrichment at the expense of the mother’s corporation (para. 26).

[25] In Rossiter v. Swartz, 2013 ONSC 159, Chappel J. of this court adopted a description of the remedy of occupation rent that mirrored the one in Dagarsho Holdings. That description, like the one in Dagarsho Holdings, harked back to the 1915 Ontario Court of Appeal decision in Young v. Bank of Nova Scotia, which I discuss in greater detail below.

[26] The facts in Rossiter were somewhat similar to those in this case. The parties before Chappel J. were relatives who were fighting over an inherited home. Two of the beneficiaries occupied the home. Two other beneficiaries demanded payments, failing which they would sell the property. When the payments were not made, litigation ensued over a variety of issues. The claim for occupation rent represented a counterclaim, which Chappel J. considered on an uncontested basis after the main action was dismissed. Chappel J. found evidence of an actual agreement to pay rent and based her order for occupation rent on that finding. She made a separate finding of unjust enrichment on the same facts and found that the proper measure of damages was the amount that she had already granted for occupation rent.

[27] Here, the grandchildren say that I should, applying Young, Dagarsho Holdings, and Rossiter, presume an agreement between the parties that the son would pay market rent for the home after Gregory died. In considering that argument, a court should be wary of finding that the law regarding occupation rent between co-tenants arises from the common law presumption cited 105 years ago in Young. That is because Young dealt with the common law treatment of overholding commercial tenants, whose original lease had expired. The presumption cited in Young was that the commercial tenant would continue to pay rent, despite the absence of a current lease. The appellate court did even not refer to the concept of “occupation rent”. Nor did it cite the law of equity. Rather the obligation to pay rent was granted as a common law remedy for a presumptive contractual term arising from a lease of property.

[28] Further, as stated above, s. 122(2) of the Courts of Justice Act arose from a right to an accounting of rents taken by one co-tenant to the exclusion of the other.

[29] While occupation rent cases like Dagarsho Holdings and Rossiter refer to the presumption regarding overholding tenants cited in Young, the law on occupation rent has actually evolved in Ontario to be mainly based on principles of equity. As set out above, those principles may, in the family law context, be considered in light of statutory rights under the Family Law Act.

[30] That point is highlighted in Withers v. Withers, 2013 ONSC 1665, where Platana J. of this court, citing Dagarsho Holdings, considered a claim for occupation rent, based on the test for unjust enrichment. Platana J. wrote:

74 In order to establish an entitlement to occupation rent, it must be demonstrated that the party in possession of the premises has been enriched and that there has been a corresponding deprivation suffered by those entitled to the property and the absence of a juristic reason for the enrichment…

[31] In Virc v. Blair, 2016 ONSC 49, [2016] O.J. No. 2813 (SCJ-FC), Jarvis J. reviewed a number of authorities to set out the applicable factors for a court to consider in a claim for occupation rent in the family law context. He wrote:

454. In Wawzonek v. Page, 2015 ONSC 4374, 63 R.F.L. (7th) 317, Pazaratz J. dismissed a claim for occupation rent by a joint owner in circumstances where the parties separated after an incident of domestic violence. As observed, occupation rent is a discretionary remedy to be granted only in exceptional circumstances. The court referred to Ombac v. George, 2015 ONSC 1938, another case where occupation rent was denied to a beneficial owner. Pazaratz J. clearly summarized the considerations guiding the exercise of the court's discretion:

455. In Griffiths v. Zambosco, , [2001] O.J. No. 2096 the Ontario Court of Appeal identified the relevant factors to be considered in determining whether to award occupation rent. These factors include:

(a) The timing of the claim for occupation rent. (b) The duration of the occupancy. (c) The inability of the non-resident spouse to realize on her equity in the property. (d) Any reasonable credits to be set off against occupation rent, and (e) Any other competing claims in the litigation.

229. The onus is on the claimant to satisfy the factors set out in Griffiths: Rebiere v. Rebiere, 2015 ONSC 1324.

230. In Higgins v. Higgins , [2001] O.J. No. 3011 (S.C.J.), the court expanded the list to include:

(a) The conduct of the non-occupying spouse, including the failure to pay support. (b) The conduct of the occupying spouse, including the failure to pay support. (c) Delay in making the claim. (d) The extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home. (e) Whether the non-occupying spouse moved for the sale of the home and, if not, why not. (f) Whether the occupying spouse paid the mortgage and other carrying charges of the home. (g) Whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support. (h) Whether the occupying spouse has increased the selling value of the property. (i) Ouster is not required, as once was thought in some early decisions.

232. A co-owner claiming occupation rent must provide specific evidence as to what the market rent for the home would have been. Stetco v. Stetco, 2014 ONCA 370.

[32] Not all of the factors set out above apply in each family law case. But if one were to eliminate the factors that specifically apply in a family law context, the remaining factors would still fit into a non-family law unjust enrichment analysis. They would assist in the consideration of the constituent elements of enrichment, corresponding deprivation, and lack of juridical reason. They can also be considered as factors in determining the application of discretion to an equitable remedy.

Application of Law Regarding Occupation Rent to the Facts of this Case

[33] Here, considering the three elements of an unjust enrichment analysis, there has been a clear enrichment by the son. He has had exclusive use of the home for the period in question, November 2017 to April 2020. While he paid some expenses, as a co-owner, he received a far greater benefit in the exclusive, rent-free occupation of the home than he paid in various expenses.

[34] On the other hand, the deprivation that the grandchildren claim is that during his period of his exclusive use, the son barred them from the home which they co-owned. While he did not collect rent on the home from a third party, during the period in question, the grandchildren were unable to access it to maintain it and more importantly, to sell it, as they had planned.

[35] However, that claim to deprivation is ameliorated by the fact that the house accrued some $80,000 in value in the approximately 18 months between July 18, 2018, the date of the first Hendren appraisal and January 25, 2020, the date of the second Hendren appraisal. That works out to $4,444.00 per month. This period coincided with much of the relevant term of the son’s exclusive use of the home. It is likely that the value of the home increased even more in the period between Gregory’s death and the first appraisal, and also between January 25, 2020 and April 30, 2020, notwithstanding Covid.

[36] When looking to a juridical reason, there is no reason that one co-owner would unilaterally enjoy exclusive occupation of a property worth well over one million dollars, to the exclusion of his co-owners. That is the case here, as the son effectively assumed the right to exclusive access to the home and, without authority, barred the grandchildren from even entering it.

[37] Accordingly, I find that the son was unjustly enriched at the grandchildren’s expense. Occupation rent is an appropriate remedy for that unjust enrichment.

[38] However in looking to the dates in which that occupation rent is payable, it appears that the first formal demand for occupation rent was made in the Application pleading that commenced this proceeding, which was issued on February 1, 2019. Prior to that, the son had been explicitly granted permission by the grandchildren to reside in the property.

[39] The point was made in a letter by Angie Cormpilas to Gregory’s lawyer, Louie Sopov, on June 16, 2014. Ms. Cormpilas is the mother of two of the grandchildren, aunt to the other two, and sister of the son. She has often assumed the role of agent for the grandchildren in many informal negotiations about the home. In this instance, she appears to have been acting as agent and spokesperson for both the grandchildren and the son in their dealings with Gregory, whose fractious conduct was the subject of the email. At that time, the parties were aligned. Ms. Cormpilas wrote to Mr. Sopov:

The house [Gregory] lives in is owned 50% by my father and 50% by (4) of my mom’s grandchildren, who have given their uncle John [the son] and family permission to live in the house..[sic] my dad wants to throw John out ..[sic] John is a tenant with permission granted to live in the house.

[40] Nothing in the letter sets out an expectation that the son will pay rent to live in the home. It is clear from the letter, in which Ms. Cormpilas complains about her father’s overbearing business methods, that the grandchildren were content with the arrangement then in place. If anything, it is the obstreperous Gregory, for whom the son and his common law spouse were caring, that was complaining about the son’s presence in the home. Nonetheless, he and his partner resided with Gregory and cared for him for almost three and a half more years, until his death.

[41] The only evidence of any request for rent before the issuance of the Application on February 1, 2019 comes in the April 20, 2018 letter from the grandchildren to the son. In that letter, the grandchildren made clear that they wished to sell the home. They spoke about their negotiations with the son and mentioned an undated ”request”, made during the earlier course of their negotiations, that he pay them rent. But, as set out above, while that letter refers to the previous request during the course of their negotiations, it does not cite the request as a present demand.

[42] Instead, the gist of the demand letter was that the son either agree to the sale or they would bring an application for partition and sale of the home. It was not a demand that he pay rent either retroactively or moving forward.

[43] That being said, even after the receipt of the Application, the son refused to pay any rent to the grandchildren for their share of the home. He essentially took the position that he was entitled to remain in the home, rent free, for as long as he wished. That position has no basis in law.

[44] Thus, I conclude that the grandchildren were entitled to occupation rent as a remedy for the son’s unjust enrichment at their expense for the fifteen months between the issuance of the Application, February 1, 2019 and the date that the son finally quit the home, April 30, 2020.

[45] With regard to the quantum of the occupation rent, the best evidence of the proper quantum of occupation rent is a determination of market rent for the property (see, for example, Dagarsho Holdings at para 28). Here, the only evidence of the proper market rent comes in the form of a letter of opinion dated January 3, 2019 from William K. McKeown. Mr. McKeown is a real estate agent who works for the same Re/Max brokerage as the grandchildren but at a different office location. Moreover, he works out of the brokerage’s Cambridge office. Mr. McKeown’s opinion letter is addressed to the grandchildren themselves as opposed to their counsel. They obviously requested the letter themselves. While there is no evidence on the point, I can draw the conclusion that the agent and the grandchildren have some relationship, whether working or otherwise.

[46] The agent, based his opinion on a review of the first Hendren report and “...a careful inspection of the Leased [sic] values for the period January 2012 to December 2017…” He does not set out the source of the “[l]eased values” that he inspected, whether an online database or otherwise. He did not inspect the property. He does offer four comparables, which range in rent from $3230- $3,850 per month before settling on a mid-range figure of $3,540 per month. He offers no analysis, comparing the home to the other properties. Nor does he consider the condition of the home.

[47] This letter of opinion is not a proper expert report. It does not contain the information set out in r. 53.03(2.1) of the Rules of Civil Procedure. It is otherwise hearsay opinion evidence. I say this recognizing that it is the only evidence of the market rent for the home available to the court. The son has failed to offer any evidence or even submissions on the appropriate market rent for the home. He does not even object to the admission of Mr. McKeown’s report.

[48] Even though the son does not object to the admission of the McKeown report, I have to recognize that I have a gatekeeper role in regard to any alleged expert evidence (Bruff-Murphy v. Gunawardena, 2017 ONCA 102 at para. 70). Accordingly I exclude it for the following reasons:

1. I do not find that Mr. McKeown’s opinion is objective on the basis that he works for the same brokerage as the Applicant, that he has prepared it for them and not their counsel, and that he likely has a personal relationship with them;
2. His evidence does not comply with r. 53.03;
3. He is neither a participation expert nor a non-party expert, as defined in Westerhoff v Gee, 2015 ONCA 206, leave to appeal refused, [2015] S.C.C.A. No. 198, at para. 60.

[49] Even if I am incorrect in saying this and I may rely on that report, that reliance would be limited. I say that for the reasons set out above and because Mr. McKeown’s letter of opinion is quite superficial. In particular:

1. He only looked at four comparables over a five year period;
2. He says nothing that compares the home to the comparables;
3. He does not consider the condition of the home. In fact he never observed it, even from the outside.
4. His area of practice is in Cambridge while the home is located in Georgetown.

[50] In considering all of the factors set out above, I find that a figure of $1,500 per month represents a reasonable award for occupation rent for the home for the period in question. In arriving at that figure, I considered:

• the value of the home,
• The son’s half-interest in the home;
• the term of its occupation by the son,
• the fact that he maintained the home by paying certain carrying charges, such as taxes and insurance, during the period in question. I offer no credit for having paid the utilities since those expenses were incurred for the exclusive use of the son and his family.
• but the fact that the home was not maintained in the best of conditions, as set out below, and
• the fact that the house value significantly increased during the period of his sole possession of the home.

[51] Accordingly, I find that the son owes the grandchildren $22,500 in occupation rent for the home for the fifteen month period between February 1, 2019 to April 30, 2020.

Issue No. 2: In the alternative, are the grandchildren entitled to damages arising out of the son’s occupation of the home between November 2017 and April 2020, on the basis of unjust enrichment?

[52] In light of my answer to issue no. 1, it is unnecessary to give a further answer to issue no 2. The award of $22,500 represents the appropriate remedy to the grandchildren for the unjust enrichment of the son at their expense.

Issue No. 3: Are the grandchildren entitled to damages for the condition of the property when the son vacated it and for items that he removed from the property?

[53] After the son finally moved out of the property on April 30, 2020, the grandchildren found that its condition required a great deal of remediation. Recognizing that they were planning substantial renovations to the home, they claim only damages that they feel would not have required repair as part of their plan to renovate and sell the home that they now own and possess.

[54] The grandchildren’ claim for damages has two separate categories: damage to the home itself by negligence and want of care and damages for items removed from the home.

[55] I find that the grandchildren have already received the benefit of a price for the home that reflects the general condition of the home at the time of the second Hendren report, with one exception. The son is responsible for $900 for the damage to the hard wood flooring to the home caused by a rocking chair moved and used by the son, that was not caught in the Hendren report. I also find that he owes the grandchildren the sum of $5,873.74, representing the replacement value of two light fixtures that he improperly removed from the home.

Claims for Damage relating to the condition of the Home on Closing

[56] The grandchildren claim for damages for the following:

a. Oil spill on driveway; b. Rotting on roof of portico; c. Exterior and interior door jambs; d. Family room window repair; e. Hardwood floor repair on main floor.

[57] The grandchildren complain that these items reflect negligence in the son’s care of the home during the period that they were ousted. They complain that if they were allowed into the home, they would have effected the necessary repairs. They have a point. It is clear that the son’s care of the home was less than ideal. But as stated above, most of the effects of that want of care were visible at the time of the second Hendren appraisal and were reflected in Hendren’s appraisal of the value of the home in January 2020. That valuation figure was the one by which the grandchildren’s buy-out of the son’s share of the home was calculated. Accordingly to grant additional damages would reflect double recovery.

[58] If I am wrong in that regard, I point out that no evidence has been placed before me that any of the areas in which the grandchildren claim the need to repair have actually been repaired in the three months since the grandchildren obtained possession of the home, as opposed to completely gutted as part of the renovations.

[59] Only two damage claims require further elaboration. The grandchildren claim that there was a noticeable oil spill on the driveway of the home on the date that the son gave them possession of the home, April 30, 2020. The grandchildren photographed it about three weeks earlier. In that photo, the oil spill looked recent and very dark. But the photograph reproduced in the Applicant’s materials was not clear and may have distorted the effect of the oil spill. The son provided a video, taken as he was just about the leave the home on April 30, 2020. That video offered a better and more comprehensive view of the entire driveway than the grandchildren’s photograph. In the son’s video, the oil spill was far more obscure than in seemed in the grandchildren’s video. It seemed to blend in with the remainder of a well-used and somewhat stained driveway. It may well be that the entire driveway will have to be resurfaced to put the home in optimal sale condition. But I do not award damages for any repair to that driveway.

[60] With regard to the flooring beneath a rocking chair that was located on the main floor of the home, I find that the grandchildren are entitled to damages. The son moved the rocking chair from its previous location in his mother’s room to a downstairs location. It was there that his family’s use of the chair damaged the hardwood floor of the main room. The damage was not apparent at the time of the Hendren report and not mentioned in it. It is not normal wear and tear. I grant the grandchildren $900, the estimated cost of that repair.

[61] The son also decided to remove two chandeliers and a wood burning stove from the home before he moved out. The absence of the stove (admittedly a fixture and therefore improperly removed) was noted in the Hendren report. For that reason, its absence was considered as part of the Hendren valuation and thus formed part of the purchase price for the son’s interest in the home. Further, it was likely in far from new condition as it was an item that Respondent had picked up for free, after it had been abandoned.

[62] However, the two chandeliers were fixtures in the home, which the son had no right to remove. The lowest credible replacement costs for those two fixtures was set out in the son’s materials as $4,399 and $799, for a total of $5,198. Adding in HST, the proper measure of damages is $5,873.74.

Conclusion:

[63] The son shall pay to the grandchildren the following sums:

1. Occupation rent: $22,500
2. For damage to hardwood flooring: $900
3. For removed chandeliers: $5,873.74

Total: $29,273.74

[64] This amount, plus $5,000 in unpaid costs ordered by Conlan J., for a total of $34,273.74, shall be immediately paid out of the $50,000 held in trust by the real estate lawyer who handled the transfer of the son’s interest in the home. The remainder shall remain in trust until after costs of this proceeding are determined.

Costs

[65] I commend the parties to attempt to resolve the issue of this proceeding. If they are unable to do so, the grandchildren may submit the costs submissions of no more than five pages, double spaced, with 1” margins, within 30 days (because of the holidays). The son may respond in a further 30 days. No reply or oral submissions unless I request otherwise. No need for a book of authorities as long as citations include paragraph numbers of cited cases.

“Marvin Kurz J.” Electronic signature of Justice Marvin Kurz, Original will be placed in court file Dated: August 11, 2020