Superior Court of Justice

Welland Small Claims Court

Court File No.: SC-11-3592

Between:

Stephen Dean Brauch
Plaintiff

and

Colin J. Bosche
Defendant

Counsel for the Plaintiff: Mr. C. Durdan
Counsel for the Defendant: Mr. F. Caplan

Reasons for Judgment

Background

[1]. This action was commenced by the plaintiff on Sept. 2. 2011. The matter
was defended, a defendant’s claim issued and a defence to it was filed. The matter came on for trial on Feb. 1, 2013. The plaintiff testified on his own behalf. Three witnesses testified for the plaintiff. They were Ms. Shelly Villella, the real estate

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agent who acted for the parties in the purchase of the home at issue, a friend of the plaintiff’s, Mr. Jamie Anderson, and a former girlfriend of the plaintiff, Karen Leslie Trembly. Mr. Colin Bosche testified in his own behalf and his only witness was his father, Ronald Bosche. Two exhibits were filed. The first exhibit was a document book brief with 15 tabs. The second exhibit is a letter dated July 26, 2010 from Mr. Caplan to Mr. Brauch offering to sell Mr. Bosche’s interest in the property. The trial lasted one day. I gave Counsel an opportunity to file written submissions. Mr. Durdan did file written submissions. Mr. Caplan did not.

[2]. The plaintiff’s claim is for breach of contract in the amount of $25,000.

The claim relates to the costs he incurred when the defendant left the property they owned as tenants in common and for the costs of renovations. The plaintiff also requests an amendment of the style of cause from Stephen Brauch to Steven Brauch. The defendant’s claim is for recovery of expenses he paid for the property and for being dispossessed of his portion of the property for a total of $19.000.

The Facts

[3]. The plaintiff and the defendants were friends and had met while in college. The two men decided to purchase a home. The plaintiff was separated from his spouse and had his two daughters, then 5 and 9, approximately 7 days in a 2 week

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period. The parties retained Ms. Shelly Villella, as their real estate agent, to assist them in finding suitable accommodation.

[4]. The parties looked at approximately 4 homes and then signed an offer of Purchase and Sale on a residence at 7120 Richmond Crescent in Niagara Falls on Aug. 14, 2007 which was reproduced at tab 1 in Exhibit 1. Tab 2 of that exhibit is the Personal Credit Agreement signed by both parties to obtain a mortgage. Tab 3 is a handwritten document signed by both parties.

[5]. Mr. Brauch gave evidence that the original document, which was undated, was written out by him. Mr. Bosche’s signature is on the agreement. He gave evidence that he had forgotten about the document but did not deny he signed it.

[6]. Aside from the offer of Purchase and Sale, and the financing document, it is the only other document in writing between the parties. It has nine points. Point seven of the agreement says “For any reason either of us moves out before the end of the mortgage that person shall rent their half out, the person shall act as the landlord if necessary.’

[7]. The last point in the agreement was as follows: “When we sell the house it is to be split 50/50 with consideration given to any repairs or money that was not shared equally.” The agreement was clear that the parties were to renovate the home and sell it at the end of five years.

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[8]. The first point of the agreement split all expenses including the mortgage, taxes, hydro, etc. equally.

[9]. The parties moved in on Sept. 4, 2007. Mr. Brauch occupied the upper floor and Mr. Bosche the basement or lower floor. The parties had signed a five year fixed mortgage with the Bank of Nova Scotia. The evidence suggests that at some point in 2008 problems began to develop. However it is clear that Mr. Bosche left to take a position in the Canadian armed forces in October of 2009. The property was finally sold on Sept. 28, 2012 with net proceeds now held in trust of

$14, 527.98 pending the outcome of this claim, as set out at Tab. 11 of Exhibit One.

Analysis

[10]. The parties do not dispute they bought the house as set out in the Agreement of Purchase and Sale, that is was mortgaged through the Bank of Nova Scotia, and finally sold in September of 2012. Nor do they dispute that the defendant left in October of 2009. The essence of the dispute can be divided into 2 parts. The first is the period from Sept. of 2007 until the defendant left in mid October of 2009. The second period is after the defendant left until the property was sold. There is only one written document, of Exhibit 1, to set out the terms of the agreement between the parties. The rest of the evidence came from the testimony of the parties

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and their witnesses.

[11]. Much of the evidence of the first period centred around the division of the property. The defendant alleged that the plaintiff moved in early and took the upper level. The plaintiff disputes this and said there was an oral agreement that he would have the upper level to provide accommodation for his daughters when they visited. Ms. Shelly Villella, the real estate agent the parties provided, gave evidence that she understood the plaintiff would occupy the upper level and the defendant the basement. This was not shaken on cross examination. Mr. Jamie Anderson, friend of the plaintiff, said he visited the premises frequently and said he observed the defendant in the living room and kitchen upstairs. He had never been downstairs. Ms. Karen Trembly gave similar evidence, albeit it only related to the summer of 2009.

[12]. The defendant’s evidence was that he did have access to the upper floor but problems began in 2008 He said a lock was placed on the front door and the door leading from the kitchen to the lower level was locked using a latch on some occasions. The plaintiff acknowledged that the door to the lower level was locked at night when his daughters were present. The defendant said that the two of them had discussions in 2008 for a less then even split of the costs but did acknowledge that no agreement was reached.

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[13]. There was agreement between the parties that some renovations were started just prior to the defendant leaving but they were not completed.

[14]. There was conflicting verbal evidence about the second period, that is, after the defendant left. Both the defendant and his father gave evidence that the former had given the latter a power of attorney to act on his behalf. However that document was not produced in evidence and the plaintiff’s evidence was that he had never seen it. It is clear that the relationship grew particularly acrimonious between the parties to the point that the plaintiff called the police during one of the father’s visits.

[15]. The defendant and his father agreed that the basement was never rented out by them. The plaintiff does not dispute this. It is also clear that no agreement, verbal or in writing was ever reached between the parties after the defendant left.

[16]. The plaintiff presented evidence that he did in fact complete the renovations to the lower apartment. He has produced receipts for materials in exhibit 1 that the defendant did not seriously challenge. He has filed detailed logs of the time he spent in exhibit one. Mr. Ronald Bosche, the defendant’s father, gave evidence he had been involved in real estate and renovations in his career. He thought the amount of time claimed was excessive.

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[17]. The Offer of Purchase and Sale in exhibit one shows the parties purchased the residence for $172, 900 in Sept. 2007. The property sold for $174,000 in September of 2012.

[18]. The defendant admitted that he did not contribute to the costs of the home which included mortgage, taxes, utilities, etc. after he left.

[19]. The defendant issued a defendant’s claim. He claimed 50% of all the expenses he had paid in regard to the property or about $9,000 . He claims an additional $10,000 for being dispossessed of the property.

[20]. In his examination in chief on the defendant’s claim, the defendant indicated he paid half of the down payment of $5,000 in 2007. He claimed that the plaintiff had offered to pay more than half of the expenses but did acknowledge in cross examination that there never was a written agreement. His evidence was that the plaintiff had taken over all of the garage that was part of the property and that the plaintiff had better accommodations. As for the figure of $10,000 for dispossession, he again referred to what he believed was an uneven use of the property.

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Findings

[21]. The plaintiff has requested that the style of cause be amended to change the spelling of his first name from Stephen to Steven. The defendant made no objection and I have no problem with that request.

[22]. The defendant did not strenuously advance his claim and there was absolutely no evidentary basis for it. The defendant was never was evicted or dispossessed.

Indeed I find, if anything, that the defendant abandoned the property.

[23]. The evidence is also clear from tab 3 of exhibit one that the parties agreed that all expenses should be split until the house was sold. If one party left, their share was to be rented and I find the evidence clear that the defendant did nothing to rent the property and adhere to the agreement. Indeed it was clear that the plaintiff did rent the basement for a short period.

[24]. The evidence also shows the parties paid $172, 900 for the property and sold it for $174,000 or a profit of only $1, 100

[25]. The plaintiff, in his submissions, claims 50% of the renovation costs from defendant or $3, 474.75. The agreement at tab 3 in exhibit one says that the proceeds of the sale are to be split 50/50 “with consideration given to any repairs or money that was not shared equally.” While the renovations may have been

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desirable, the fact is the profit was only $1,100. I would therefore award that profit to the plaintiff and not the $3,474. 75.

[26]. In the end, with the exception noted in paragraph 25, I must find for the plaintiff because of what evidence appears in writing. The Offer of Purchase and Sale at tab 1, the mortgage documents tabs 2, 8, and 10, and finally the agreement at Tab 3, are all in writing.

[27]. The rest of the evidence I had was verbal. It was evidence of conversations that occurred as much as five and a half years ago. There was absolutely no evidence that there was coercion or fraud in any of the written documents. The plaintiff produced logs and receipts for the renovations. The defendant’s only tried to challenge the time spent.

[28]. In The Law of Contracts, by John D McManus, 2005, published by Irwin Law, the author at page `190, wrote: “If an agreement is entered into on the basis of a document proffered by one party and signed by another, it is clearly established that the agreement between the parties contains the agreement expressed in the document, whether or not the signing party has read the document.” . In this case the defendant simply indicated he did not remember the written document at tab 3. He did not say he did not read and didn’t dispute he signed it.

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[29]. It is true that a lot of the dispute prior to the defendant’s departure centred over whether the defendant agreed to live in the basement. The testimony of the real estate agent, Ms. Villella was clear that he did.

[30]. I find that the plaintiff should have judgment for the full amount claimed being half of the mortgage and other expenses for 36 months or $21, 840 and $1,100 for renovations. I acknowledge that there was undisputed evidence that the plaintiff did receive rent of $1, 600 so that would reduce the final amount $21,440.

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Judgment

[31]. The name of the plaintiff in the style of cause is changed from Stephen Brauch to Steven Brauch.

[32]. The plaintiff shall have judgment for $21, 440. The plaintiff shall have prejudgment interest from Sept. 2, 2011 and post judgment interest at the court rate.

[33]. The defendant’s claim is dismissed.

[34]. The plaintiff has requested costs, in his submissions, all inclusive of $2, 500.

Pursuant to S. 29 of the Courts of Justice Act, the plaintiff could have claimed a representation fee alone in excess of that amount. The plaintiff is awarded the sum of $2500 in costs, all inclusive.

Dated March 21, 2013

Roderick H. McDowell
Deputy Judge