ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-06-4231-SR
DATE: 2012-10-04
BETWEEN:
Karen Primeaux-Kostka Plaintiff – and – Aventine Co-operative Homes Inc. Defendant
P. Machado, for the Plaintiff
R. Simmons, for the Defendant
HEARD: December 14, 15, 18, 2009
June 11, 2012
THE HONOURABLE MR. JUSTICE R.D. REILLY
reasons for judgment
[ 1 ] By this action, the plaintiff claims damages for negligence in the sum of $25,000, reimbursement of all amounts paid to the defendant by the plaintiff in the amount of $1,200 as well as general damages, punitive damages and aggravated damages in the sum of $23,800, together with the usual pre and post-judgment interest pursuant to the Courts of Justice Act and the costs of this action.
[ 2 ] This trial began on the 14th of December 2009. It continued on the 15th and the 18th of December. On the 18th of December 2009, it was noted that several documents that had been referred to during the course of trial had not been produced. The court stated (page 127 of the transcript of the 18th of December 2009) “I want to come as close as possible to where the truth lies and if there is some documentation out there that might further assist Ms. Primeaux-Kostka or for that matter the defendant in corroborating the contrary positions which they take then I want to give counsel an opportunity to do that to locate those documents”.
[ 3 ] I went on to say, “next week I’m on holidays but I’d be able to make myself available on Monday for your submissions if that is your wish. If you want an opportunity to explore the possibility of further documentary disclosure and production and even recalling any witnesses or additional witnesses in order to do justice to this case, I’m quite prepared to hear with sympathy your recommendations or submissions”. Counsel then advised the court that they wished to have an opportunity to present further documentary evidence. At their request, the court stated (page 133 of the transcript): “I’m directing that this matter is adjourned and will continue on a date to be fixed with counsel with the assistance of the trial co-ordinator and I will advise the trial co-ordinator to give this matter priority. We’ve got sittings beginning immediately after or very soon after the New Year but I’m going to instruct the trial co-ordinator to clear me for a day.”
[ 4 ] I then expected that counsel would arrange with the trial co-ordinator for a further day of hearing of evidence, if it was available, and final submissions of counsel. Time went on. After several months, I had heard nothing from counsel or the trial co-ordinator. In all candour, I presumed the action had been settled. I directed the trial co-ordinator to inquire of counsel of the status of the action. Counsel apparently advised the trial co-ordinator that the action was still very much alive and they wished an opportunity to appear again before the court. To make a long story short, there arose scheduling problems and counsel did not appear before the court until the 11th of June 2012. No further evidence was called, but final submissions were made.
[ 5 ] The passage of time until final submissions obviously poses a challenge to the court, particularly with respect to the credibility of witnesses that were called at trial. However, I have the advantage of my copious notes and the transcript ordered by counsel of some of the evidence called at trial. I am therefore satisfied that I can render judgment in this case, a judgment which the parties deserve.
The Genesis of the Proceeding
[ 6 ] The plaintiff, Karen Primeaux-Kostka was a single parent when she assumed occupancy of Unit 17 at 225 Country Hill Drive, a unit of the Aventine Co-operative Homes Inc. At that time she was pregnant. Initially there may have been some minor maintenance problems, including a faulty toilet. However, life went on for her. She was granted “rent geared to income” of approximately $42 per month, a modest amount for the townhouse.
[ 7 ] The affairs of Aventine Co-operative Homes Inc. were governed by a Board of Directors (seven in number), one of whom was elected president. The Board of Directors held periodic meetings to deal with the affairs of the co-operative, including maintenance problems. Examples of the minutes of the meetings of the Board of Directors may be found at Tabs 2, 3 and 4 of Exhibit #1, all relating to meetings held in 1993 and 1994, soon after Ms. Primeaux-Kostka moved into her unit.
[ 8 ] It was customary for an annual inspection to be carried out of all the units. Indeed, an annual inspection was carried out of Unit 17, Ms. Primeaux-Kostka’s unit, on the 18th of February 1994. The inspection report for that visit is found at Exhibit #1, Tab 5. As a result of Ms. Primeaux-Kostka’s continuing maintenance problems, maintenance work orders were issued on June 7, 1995 (Exhibit 1, Tab 6), September 16, 1996 (Exhibit 1, Tab 7) and December 5, 1996 (Exhibit 1, Tab 8). That last work order notes that “toilet still not working properly”, “window still leaking” and “bathroom floor deteriorating”. At trial, Ms. Primeaux-Kostka testified that these deficiencies were never attended to by Aventine. A significant list of deficiencies, as of the 10th of August 1999, was formally submitted to Aventine by Ms. Primeaux-Kostka, which list of deficiencies may be found at Exhibit 1, Tab 12. The plaintiff submitted a further list of deficiencies dated the 13th of September 2001, which list may be found at Exhibit 1, Tab 15. Ms. Primeaux-Kostka submitted a further request for maintenance repairs on March 16, 2002, which may be found at Exhibit 1, Tab 21.
[ 9 ] The plaintiff testified that as a result of continuing problems and in particular a leaking toilet and leaking windows, in November of 2002 she became concerned about the presence of mould in her unit and its impact upon her health and that of her children. By this time she had three sons living with her, aged 13, 9 and 10 months. As a result of her concerns regarding the mould problem, Ms. Primeaux-Kostka testified that she moved out of her unit in mid-January of 2003. After a short stay in hospital she and her children stayed with “family and friends”, never returning to reside in Unit 17.
[ 10 ] As noted above, the ongoing affairs of Aventine were overseen by the Board of Directors elected by members (residents) of the co-operative, on an annual basis. The Board of Directors had retained Fengate Property Management Limited as property manager for the co-operative. It was largely the responsibility of Fengate, at the direction of the Board of Directors, to deal with the day to day issues that might arise at the complex and to deal specifically with maintenance problems. The plaintiff takes the position that her unit was unsuitable for habitation, as a result of the maintenance problems and specifically as a result of the mould, which constituted a health hazard. She wanted other accommodation. Her position is summarized in her correspondence dated March 16, 2003 directed to Fengate Property Management Limited. This correspondence is found at Exhibit 1, Tab 35. Her concerns are repeated in further correspondence dated March 19, 2003, found at Exhibit 1, Tab 36 and on April 24, 2003 (Exhibit 1, Tab 37).
[ 11 ] In February of 2003, Fengate Property Management retained the services of Woodhouse Contracting Limited to deal with the problems in Ms. Primeaux-Kostka’s unit. The person who assumed responsibility to deal with these problems on behalf of Woodhouse was Mr. Randy Balzer, who testified as a witness at trial. Mr. Balzer conducted an inspection of Unit 17 and made some initial determination of the work necessary to remedy the problems in that unit. Consistent with his testimony at trial, the results of his inspection may be found in correspondence at Exhibit 1, Tab 28, Tab 31 and Tab 34. As this latter correspondence, dated March 14, 2003, from Mr. Balzer to Fengate makes clear, by Mr. Balzer’s initial assessment, significant steps were necessary to deal with the problems in Unit 17. It may be noted that Mr. Balzer based his assessment in part on a report which he had commissioned from Environmental Inc., which report may be found at Exhibit 1, Tab 32.
[ 12 ] Once Mr. Balzer had completed his initial remediation work, he again retained the services of APL Environmental Inc. (a firm of environment health and safety consultants) to attend at Unit 17 and assess the situation. The report of APL Environmental may be found at Exhibit 1, Tab 41. In the opinion of APL Environmental “based on the results of the visual inspection and results of the air sampling, additional cleaning/removal of mould is necessary.”
[ 13 ] The evidence of Randy Balzer was of some assistance to the court. Although his specific recollection of events was vague, he was able to refresh his recollection from some of the numerous correspondence between him, Fengate and Ms. Primeaux-Kostka. To summarize his evidence, he was retained by Fengate in early 2003 to effect remedial and restoration work in the plaintiff’s unit, number 17. Mr. Balzer’s work, on behalf of Woodhouse, effectively involved two stages. There was remediation to deal with the initial problems, including the presence of mould and then restoration to restore the unit to a state fit for habitation. Mr. Balzer’s team did the initial remediation, it would appear in April and May of 2003. Much work still had to be done by way of restoration (see Exhibits 13 and 14). The restoration work was not done immediately.
[ 14 ] There was conflicting evidence with respect to whether the plaintiff cooperated in permitting access to her unit for both remediation and restoration work to be done. The defendant takes the position that restoration, at least, was delayed as a result of the plaintiff’s resistance to tradespersons entering her premises. The plaintiff denies this resistance (see for example the plaintiff’s email sent on May 28, 2003 found at Exhibit 1, Tab 43).
[ 15 ] On May 27, 2003, Fengate wrote to the plaintiff in a letter found at Exhibit 1, Tab 42. It stated in part:
To complete the remedial work we would kindly ask you to remove your contents in your unit before June 13, 2003. If your contents are not removed before or on that date, we will have Woodhouse Contracting remove and store your contents and you will be charged (sic) back for the cost.
Fengate repeated this request by letter dated June 5, 2003. The letter stated:
As mentioned in the letter dated May 27, 2003 asking you to remove your contents so we can complete the restoration works. If you cannot complete this request, we would appreciate your permission in writing so Woodhouse Contracting could remove and store your contents.
[ 16 ] By letter dated June 9, 2003, Ms. Primeaux-Kostka replied to the request to remove the contents of her unit. In that letter she stated in part “please be advised that my “contents” (my personal property) are not to be tampered with until I have received complete clarity for this request”. She went on to say “until this matter is resolved and clarified, my personal contents are not to be moved by Woodhouse Contracting or anyone else.”
[ 17 ] Further correspondence with respect to the removal of Ms. Primeaux-Kostka’s property may be found in the letter which she sent to Mr. Balzer dated June 6, 2003 (Exhibit 1, Tab 45) and Mr. Balzer’s response dated June 12, 2003 (Exhibit 1, Tab 48). The evidence seems clear that the entire contents of Ms. Primeaux-Kostka’s unit were removed shortly thereafter. They were perhaps stored for some time in a community hall and then it is suggested were moved to a church. Ms. Primeaux-Kostka has never regained possession of any of these items.
[ 18 ] I have done my best to summarize the somewhat tumultuous and acrimonious relationship between the plaintiff and Aventine prior to her departure from Unit 17. It could be noted that her relationship with other residents of the co-operative had become acrimonious as well, particularly her relationship with her next door neighbour, Cheryl Lynn Limebeer, who happened to be the president (chairman) of the Board of Directors during the period that the plaintiff left the co-operative.
[ 19 ] Evidence of the differences that had arisen between the plaintiff and the defendant are in part evidenced by the affidavit of Cheryl Limebeer, sworn the 19th of September 2003, which affidavit was adopted by Cheryl Limebeer when she testified. As noted above, the plaintiff was initially entitled to pay rent geared to income of approximately $45 per month, which was significantly less than market value rent. Residents who paid rent on a rent geared to income basis were required on an annual basis to provide documentary evidence of their actual income so that their entitlement to rent geared to income (RGI) could be verified. The evidence strongly suggests that Ms. Primeaux-Kostka failed to provide this evidence to the Board of Directors. Cheryl Limebeer stated in her affidavit that Ms. Primeaux-Kostka was reassessed for rent in the amount of $26,550.44 for retroactive arrears going back to August of 2000. As a result of these arrears, steps were taken to evict her. A meeting was held on June 16, 2003 and the Board made a decision to evict the plaintiff. The plaintiff failed to attend that meeting. Ms. Limebeer testified that all appropriate notices had been given to the plaintiff. The plaintiff denied such notices. My determination as to who is more credible on this issue becomes academic because the Board decided ultimately to withdraw its claim for rental arrears and it appears as though a formal notice of eviction was never directed. Instead the Board took the position that sometime in 2003 Ms. Primeaux-Kostka had simply abandoned the unit and therefore made it available to be leased to a new tenant. Aventine’s claim for retroactive rent was in effect withdrawn.
[ 20 ] The plaintiff has made a claim for water damage to the contents of her unit and as well her losses incurred as a result of two break-ins. She claims the defendants were negligent in not ensuring her patio door lock was functioning properly and that the door was secure. I reject this latter claim. She made a claim against her insurance company and received some payment as a result of a break-in or the break-ins. Her claim for loss, as a result of break-ins, is a matter between herself and her insurance company. A householder is responsible personally to ensure that appropriate steps are taken to ensure the security of the home. If a patio door lock is defective, which is sometimes the case, the householder may ensure the door is secure by simply depositing an appropriate length of wood or other material in the lower running track of the patio door. This is indeed the most effective patio door “lock”. In any event, Ms. Primeaux-Kostka has received some compensation from her insurance company as a result of the loss of her goods.
[ 21 ] The plaintiff’s claim for water or mould damage to the contents of her unit becomes academic in light of my determination of her claim for the loss of the total contents of her home, as a result of Aventine’s direction to Woodhouse to remove those contents.
[ 22 ] Having carefully considered and reconsidered the evidence, I conclude that Aventine was negligent in its unquestionable duty to provide a habitable residence for the plaintiff. Her complaints about maintenance issues existed over many years. On a preponderance of the evidence, her concerns about mould contamination were justified. Thus the obligation was on Aventine to provide remedial work and then restoration to her residence. This Aventine failed to do in a timely and appropriate fashion. It appears that remedial efforts were provided by Mr. Balzer of Woodhouse in April and May of 2003. On the evidence, restoration of Unit 17 was not accomplished until early 2004 when the unit was again made available for occupation. By this time, Ms. Primeaux-Kostka had moved on with her life. It appears that she began to cohabit with her husband to be (whom she had met in 2000) in 2004. They married in 2005. No specific claim is made for rental accommodation in 2003 and 2004 and none is justified.
[ 23 ] The evidence is clear that the plaintiff experienced significant maintenance problems in her home, some of which led to her concerns about mould contamination. Aventine had an obligation to address these problems in a timely and expeditious fashion. This Aventine failed to do. There is no reason why the immediate remedial efforts having been made in April and May of 2003, Unit 17 was not rendered habitable until early 2004.
[ 24 ] Furthermore, on a preponderance of the evidence and particularly that of Randy Balzer, there was no justification for Aventine requiring the plaintiff to remove all of her belongings from the unit. The remedial and restoration efforts could have been accomplished in a timely fashion with more minimal steps being taken to protect the residents of the unit.
[ 25 ] Of greater significance, I conclude that if remedial and restoration steps were necessary to provide Ms. Primeaux-Kostka with an appropriate residence, it was the obligation of Aventine to do so. If indeed (and I conclude it was not) it was necessary for the resident to remove all household possessions, it was the obligation of Aventine, as in effect the “landlord”, to pay for the removal of those contents, store them safely and then return them to the unit. This Aventine failed to do. Given the evidence at trial, I reject the plaintiff’s claim for general damages, punitive damages and aggravated damages. There is insufficient evidence to justify such claims.
[ 26 ] I do however grant to the plaintiff her rent paid to Aventine from January to August 2003 (seven months at $42.00 per month) in the amount of $294.00. I grant to the plaintiff as well, the sum of $850 for the member deposit provided to the defendant and never returned. I deny to the plaintiff her claim for medication, physical pain and suffering and emotional pain and suffering, together with her claim for mental anguish and what she referred to as the “delay in proceedings”
[ 27 ] I then take into account her claim for the loss of her personal property as a result of the inappropriate “seizure” of that property by Woodhouse, based upon the direction of Fengate and at the direction of the defendant Aventine. The plaintiff claims a total loss in excess of $21,000. Upon careful consideration of the evidence I conclude that her loss related to the improper seizure of her property should be set at $12,000. I therefore award the plaintiff the sum of $13,144 ($12,000 + $294 + $850).
The Disposition of the Court
[ 28 ] For reasons noted above, I award the plaintiff damages in the amount of $13,144. If counsel are unable to agree on the issue of costs, they may make brief submissions to me in writing at my chambers within 30 days of publication of this judgment.
R.D. Reilly J.
Released: October 4, 2012
COURT FILE NO.: C-06-4231-SR
DATE: 2012-10-04
ONTARIO SUPERIOR COURT OF JUSTICE Karen Primeaux-Kostka Plaintiff – and – Aventine Co-operative Homes Inc. Defendant REASONS FOR JUDGMENT R.D. Reilly J.
Released: October 4, 2012
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