COURT FILE NO.: 132/05
DATE: 20061120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEEHAN, ellen macdonald, cameron JJ.
B E T W E E N:
JIM EBY
Plaintiff
(Respondent and Cross-Appellant)
- and -
BRIAN PITKIN
Defendant
(Appellant and Respondent by Cross-Appeal)
- and -
John R. Hart, for the Plaintiff (Respondent)
Lisa Bolton, for the Appellant (Defendant)
WHITE QUEEN LIMITED and 869868 ONTARIO INC.
Third Parties
(Respondent – 869868 Ontario Limited)
Theresa Mary Hartley, for the Third Party (Respondent – 869868 Ontario Inc.)
HEARD: June 8, 2006
E N D O R S E M E N T
E. Macdonald J.:
Nature of Proceeding
[1] This is an appeal from the decision of Wilson J. dated March 9, 2005. Her Honour granted judgment against the appellant/defendant Brian Pitkin (“Pitkin”) for the total amount of $24,127.34 together with costs in the amount of $14,125.00. Wilson J. dismissed the third party claims brought by Pitkin against 869868 Ontario Inc. and White Queen Limited. In the White Queen matter, Wilson J. fixed costs at $7,993.35.
[2] In this appeal, Pitkin asks that the claim against him be dismissed with costs. Alternatively, he asks that the judgment be reduced to $5,427.51 and that judgment be payable by one or more of the third parties and that the costs be reduced.
[3] The plaintiff/respondent, Jim Eby, (“Eby”) cross appeals on the quantum of damages and on the costs award. He requests that this court order Pitkin to pay him $71,322.00 plus interest and that costs be paid in the amount of $35,000.00.
Factual Background
[4] Eby carried on work as a contractor with a specialty in counter tops for kitchens and bathrooms. He fell into arrears of rent for the premises in which he worked at 373 Adelaide Street East. Goodman and Goodman, who were the solicitors for the landlord at 373 Adelaide Street East, hired Pitkin as a bailiff to terminate the lease and lock Eby out of the premises. Pitkin took these actions but Eby continued to attend at the premises. He did so by breaking into the premises and allegedly ignored the notice to remove himself and his belongings. Eby had a history of arrears of rent with respect to commercial landlords.
[5] When a representative of the landlord observed that Eby was continuing to attend at the premises, Pitkin was instructed to remove Eby’s goods from the premises. Pitkin caused Eby’s goods to be removed by the third party, White Queen Limited. This was done in mid June 1991. White Queen Limited stored the goods. Storage fees accumulated and were unpaid. Pitkin made two offers to Eby for Eby to retrieve his goods upon payment. The first offer was for $2,000.00. The second offer was for $3,000.00.
[6] White Queen Limited advertised the public sale of the goods on August 13, 1991. Eby claimed at the trial that he received no notice of the sale. White Queen Limited sold the goods at auction for $5,980.00. The net amount received from the proceeds of the auction after deducting storage fees and other costs was $552.49. This amount was remitted to Eby.
[7] Eby commenced this action against Pitkin on August 12, 1997. He claimed damages in the amount of $75,000.00 for losses of his material, equipment, and tools, which had been stored and sold at the auction. Eby claimed that after the goods were seized, no notice was provided to him in accordance with the provisions of s. 15 of the Repair and Storage Liens Act, RSO 1990 c. R. 25 (“RSLA”). Pitkin and White Queen Limited took the position that the RSLA did not apply. Justice Wilson concluded, on a balance of probabilities, that had Eby received notice of the sale, he would of found a way to gather the fees to recuperate his tools and materials which were “for him his lifetime of work”. The evidentiary record discloses that the evidence at trial amply supported Wilson J.’s findings.
Standard of Review
[8] We approach the question of the standard of review on the basis of Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 (S.C.C.): At paragraphs 8, 10 and 28, the Supreme Court of Canada summarized the standards of review:
On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness.
The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error.”
Where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review [than for findings of fact].
[9] Applying this standard of review to the reasons of Wilson J., we find no palpable and overriding error. The evidentiary record supports the findings of Wilson J.
[10] In his cross-appeal Eby claimed that the trial judge made a palpable and overriding error in measuring damages. Eby now seeks damages measured on a full replacement cost basis. He had abandoned such a claim when he admitted at trial that a 50% depreciation factor ought to be applied.
[11] We find that it was open to Wilson J. to find, as she did, that the actual value was the appropriate measure of damages. Other than the amount received at auction, there was no credible evidence at the trial on the actual value of the goods. The inventory list from which the counterclaim is derived, contained alleged replacement cost amounts ascribed by Eby years after the events took place. Other credible evidence contradicted it. It was proven to be inaccurate at trial, and Wilson J. so found.
[12] Damages are to be determined on the basis of the value of the goods at the time of the loss. We find no basis for interfering with the findings made by Wilson J. on the issues raised in the cross-appeal.
[13] Finally, there is the issue of the limitation period. We find that it open to Wilson J. to determine the claim was not ststute barred by the six- year limitation period. This issues arises from the Limitations Act, R.S.O., 1990 c.L. 15 s. 45(1)(h). We find no palpable and overriding error with respect to her finding that the date triggering the limitation period was “August 13, 1991, but more probably the date that Eby became aware that the goods had been sold without notification to him: that is September 4 or 7th, 1991”. See the reasons for judgment at page 11.
[14] For all of the above reasons, the appeal is dismissed.
[15] [^1]Costs are awarded to the respondents in this appeal and are fixed at $5,000.00.
Meehan J.
Ellen Macdonald J.
Cameron J.
Released: November 20, 2006
COURT FILE NO.: 132/05
DATE: 20061120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEEHAN, ellen macdonald, cameron JJ.
B E T W E E N:
JIM EBY
Plaintiff
(Respondent and Cross-Appellant)
- and -
BRIAN PITKIN
Defendant
(Appellant and Respondent by Cross-Appeal)
- and -
WHITE QUEEN LIMITED and 869868 ONTARIO INC.
Third Parties
(Respondent – 869868 Ontario Limited)
ENDORSEMENT
[^1]: See the reasons for judgment at page 11.