Court of Appeal for Ontario

Citation: VanEvery v. VanEvery-Albert, 2016 ONCA 817

Date: 2016-11-03

Docket: C61743

Before: Blair, Epstein and Huscroft JJ.A.

Between:

Wayne Clare VanEvery

Appellant/Plaintiff

and

Caroline Mary VanEvery-Albert and Seth James LeFort

Respondents/Defendants

Counsel:

Mark D. Staats and Brenna Staats, for the appellant

P. Alan R. Giles, for the respondents

Heard and released orally: October 31, 2016

On appeal from the judgment of Justice R. John Harper of the Superior Court of Justice, dated July 6, 2015.

ENDORSEMENT

[1] This appeal centres around the trial judge’s award of general damages in the amount of $100,000 and punitive damages in the amount of $75,000 awarded to the respondents in circumstances arising out of the sale of a farm property on the Six Nations of the Grand River reserve. We are all of the view that both awards must be set aside.

[2] The award of punitive damages cannot stand because punitive damages were neither pleaded nor sought by respondents’ counsel in argument at trial and on appeal, Mr. Giles fairly acknowledged there was little he could say with respect to the punitive damage claim.

[3] In any event, the trial judge’s reasons reveal no analysis as to how and on what basis he arrived at an amount of $75,000, an amount that, in the circumstances, we consider could not be justified.

[4] It would appear from the trial judge’s reasons that he awarded general damages for harassment and mental distress. Respectfully, however, he mischaracterized the basis for the respondents’ claim. No claim for damages for harassment or mental distress is pleaded, although in support of their claim for an order restraining the appellant from harassing them, the respondents relied on allegations that they experienced “anxiety and stressors”. The respondents gave evidence of experiencing these factors but no expert medical evidence was led to support a link between their experiences and the effects they claimed. The trial judge was clearly upset about the appellant’s conduct towards the respondents as he saw it and his damage award appears to reflect that view. Here, respondents’ counsel sought to support the general damage award on the basis of the value of the chattels removed from the farm by the appellant. However, there is no claim for damages for conversion of the chattels and, as noted, the trial judge’s award is based on the appellant’s alleged harassing conduct, not the removal of chattels. The only pleaded claim that might apply is a claim for damages for loss of use and enjoyment of the lands and premises in the amount of $40,000, considerably less than the damages awarded, but the conduct alleged does not pertain to that type of claim which relates to a proprietary interest in title.

[5] At the end of the day, respectfully, we accept the appellant’s submission that the trial judge’s reasons do not permit us to conduct an effective appellate review in relation to the damage claim. We do not know how or why he arrived at his unfavourable credibility findings against the appellant (to the extent that he did) or how and why he arrived at his calculation of the amount of damages.

[6] Accordingly, an order will go setting aside the award of general damages and the award of punitive damages.

[7] The respondents nonetheless achieved considerable success at trial. Without accepting the trial judge’s analysis with respect to costs, we do not think that the costs he awarded were unreasonable given the nature and complexity of this five day trial. Accordingly, we do not interfere with his order as to costs.

[8] The appellant is entitled to his costs of the appeal fixed in the amount of $10,000 inclusive of disbursements and all applicable taxes.

“R.A. Blair J.A.”

“Gloria Epstein J.A.”

“Grant Huscroft J.A.”