ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-141SR
DATE: 20130408
BETWEEN:
MICHELLE CARSON
Self-Represented
Plaintiff
- and -
HAROLD JAMES ARMSTRONG and JANET REBECCA ARMSTRONG
Ms K.A. Ley, for the Defendants
Defendants
HEARD: April 2, 3 and 5, 2013
REASONS FOR JUDGMENT
Conlan J.
Introduction
[1] For Michelle Carson, the peaceful and tranquil setting of a small country campground has morphed in to nothing but a nightmare.
[2] Are the Defendants responsible for Ms. Carson’s predicament?
[3] Has the Plaintiff proven on a balance of probabilities that the Defendants or either of them are/is liable for misrepresentation? That is the primary issue to be decided.
[4] The Plaintiff, Michelle Carson (“Ms. Carson”), has sued the Defendants, Harold James Armstrong (“Mr. Armstrong”) and Janet Rebecca Armstrong (“Mrs. Armstrong”), hereinafter collectively referred to as “the Armstrongs”, for what the self-represented Ms. Carson has labeled in her Statement of Claim as misrepresentation.
[5] The subject matter of the litigation is Ms. Carson’s occupancy of a site at the Defendants’ Kilsyth Country Campground (“Campground”) located just west of the small village of Kilsyth in Georgian Bluffs, Grey County, Ontario. The Armstrongs are and were at all material times the owners and operators of the Campground.
[6] This Rule 76 simplified procedure action was tried ordinarily in Owen Sound on April 2, 3 and 5, 2013. The Court reserved its Judgment.
A Brief Summary of the Positions of the Parties
Ms. Carson, the Plaintiff
[7] In addition to interest and costs, Ms. Carson seeks the following in her Statement of Claim:
- The plaintiff claims
a) the sum of $28,000 for the cost of the purchase of a trailer home located at the Kilsyth Country Campground being a Northlander Huron Ridge 1991 model;
b) the sum of $10,000 for the cost of improvements made to the trailer, and;
c) the sum of $12,000 for damages arising out of the misrepresentation of the use of the trailer.
[8] Ms. Carson bears the burden of proving her claim on the civil standard – on a balance of probabilities.
[9] According to Ms. Carson, Mrs. Armstrong told her that she could live at the Campground permanently (12 months of the year). Ms. Carson relied on that representation in purchasing a trailer for $28,000.00. That representation was false as the municipality’s zoning restrictions prohibited Ms. Carson from living at the Campground year-round. Ms. Carson sustained damages as a result of the misrepresentation.
[10] But for $311.80 that Ms. Carson admits that she owes the Defendants for outstanding hydro bills incurred by Ms. Carson and paid by the Armstrongs, Ms. Carson denies any liability for the items pleaded in the Counterclaim.
The Armstrongs, the Defendants
[11] Although the legal position of the Armstrongs is that none of the required elements of the tort of misrepresentation have been proven on balance by Ms. Carson, the crux of the defence on liability is very simple. According to the Armstrongs, neither of them told Ms. Carson that she could live at the Campground permanently (12 months of the year), thus, there was no misrepresentation. In fact, Ms. Carson signed an agreement which specifically provided for seasonal occupation for a term of six months.
[12] If the Court finds that a misrepresentation has been proven, then the Defendants dispute the damages sought by Ms. Carson.
[13] In addition to interest and costs, the Armstrongs seek the following in their Counterclaim:
- The Defendants claim:
a) The sum of $311.80 representing outstanding hydro bills incurred by Carson and paid by the Defendants.
b) The sum of $750.00 representing storage for the trailer, up to and including June 2012, and $150.00 per month storage fee until such time as the trailer and all items belonging to Carson are removed from the Property.
c) The sum of $2,000.00 representing the cost of moving the trailer from the initial site to an alternate location on the Property and removing debris from the lot.
d) The sum of $718.00 representing the loss of income from the unauthorized use of the lot, for the months of May 2012 and June 2012.
[14] The Armstrongs bear the burden of proving their Counterclaim on the civil standard – on a balance of probabilities.
The Law
[15] The jurisprudence is very succinctly outlined and the current state of the law very nicely summarized by The Honourable Allen Linden and Bruce Feldthusen in the ninth edition of their textbook Canadian Tort Law, at pages 455 to 474.
[16] To ground a claim in tort for misrepresentation, the claimant must establish the following on balance:
(i) a duty of care owed by the representor to the representee;
(ii) an untrue, inaccurate or misleading statement made by the representor to the representee;
(iii) that in making the statement, the representor acted negligently (or, in other words, breached the standard of care);
(iv) that the representee reasonably relied upon the statement; and
(v) that the representee suffered a loss or damages as a result of the misrepresentation. Queen v. Cognos Inc., 1993 146 (SCC), 1993 CarswellOnt 801 (SCC) at paragraph 34.
A Brief Summary of the Evidence at Trial
[17] These Reasons for Judgment are being released within days of the conclusion of the trial. The evidence is very fresh in my mind.
[18] This case can be decided on the narrow issue of whether Mrs. Armstrong made the alleged statement that Ms. Carson could live at the Campground permanently (12 months of the year). Thus, no elaborate recitation of the evidence adduced at the trial is necessary.
Ms. Carson, the Plaintiff
[19] In the Spring of 2011, Ms. Carson looked around the Campground with Mrs. Armstrong. Mrs. Armstrong pointed out a trailer that was for sale. Mrs. Armstrong told Ms. Carson that, if she bought that trailer, she could live there permanently.
[20] Ms. Carson liked the trailer but raised the occupancy issue again. Mrs. Armstrong reiterated that Ms. Carson could live there permanently “because the trailer was grandfathered”.
[21] Relying on that representation from Mrs. Armstrong, Ms. Carson bought the trailer from the vendors (not the Armstrongs) for $28,000.00.
[22] Shortly after her purchase of the trailer, Ms. Carson signed a six-month Licence of Occupation (Exhibit 1) with a term of May through October 2011. In June 2011, Ms. Carson moved in.
[23] Ms. Carson admits that, on its face, Exhibit 1 clearly stipulates that her occupation is seasonal and not permanent and that there is no other agreement between the parties. But Ms. Carson states that Mrs. Armstrong promised that a permanent lease was coming.
[24] No other agreement was ever signed between the parties. An eviction notice was eventually delivered to Ms. Carson by the Armstrongs. Ms. Carson left the Campground in the spring of 2012. The trailer and other belongings of Ms. Carson still remain on the Campground property today.
[25] Exhibits 16 through 25 are documents filed through Ms. Carson which allegedly prove her damages. Many of the documents are with regard to materials and labour paid for by Ms. Carson, between November and December 2011, for the addition to the trailer.
[26] It is an agreed fact that Ms. Carson paid 28,000.00 dollars for the trailer itself.
[27] Ms. Carson testified further to other expenses for which she has no supporting documentation. Ms. Carson is claiming $400 in damages as a result of losing money on a wooden shed that she purchased for her site at the Campground and later sold at a discount.
William Klingenberg, for the Plaintiff
[28] Mr. Klingenberg is the Chief Building Official for the Township of Georgian Bluffs.
[29] On November 1, 2011, Ms. Carson had applied for a permit for an addition to the trailer. The permit application was denied because, although the trailer was a legal non-conforming item under the Township’s zoning bylaw, expansion to it was prohibited.
[30] While speaking on the telephone with Ms. Carson on November 9, 2011, Mr. Klingenberg learned from her that she was living at the trailer permanently. He told Ms. Carson that was not allowed under the zoning bylaw.
Jackie Ramsay, for the Plaintiff
[31] Mrs. Ramsay was a credible and reliable witness. She was straightforward and struck me as honest and sincere in her evidence.
[32] Mrs. Ramsay and her husband spent eight seasons at the Campground, with both the prior owner and then the Armstrongs.
[33] In 2011, the Ramsays signed a seasonal lease to stay at the Campground from May through October. In June, the Ramsays purchased a park-model trailer.
[34] Prior to their purchase of that new trailer, the Ramsays spoke with the Armstrongs in the office at the Campground. The Ramsays asked if they could park the new trailer at the Campground year-round, and the Armstrongs said yes. Mrs. Ramsay testified that she and her husband believed that they could live at the Campground year-round, thus, they vacated their apartment in Owen Sound after the date of that discussion with the Armstrongs, after buying the new park-model trailer and before signing a new 11-month lease to stay at the Campground.
[35] It is important to note that Mrs. Ramsay did not testify that the Armstrongs said specifically that the Ramsays could live at the Campground year-round.
[36] Upon the expiration of the seasonal lease in October 2011, the Ramsays remained at the Campground until February 2012. They were told by the Armstrongs that they would receive a permanent lease, however, that did not happen. Instead, the Ramsays signed a new lease for 11 months. That Licence of Occupation (Exhibit 12) was signed by the parties on December 3, 2011. That Licence specified that the occupancy was for 11 and not 12 months.
[37] The Ramsays left the Campground in February 2012 because they had a dispute with the Armstrongs about the Ramsays' daughter and because they had nowhere to go for the one month that they could not stay at the Campground under the terms of Exhibit 12.
Lavinda (Lyn) Soles, for the Plaintiff
[38] Ms. Soles has been a good friend of Ms. Carson for many years.
[39] Ms. Carson told Ms. Soles that the former would be living at the Campground permanently.
[40] Ms. Soles testified about visiting Ms. Carson at the Campground in the winter and about seeing a row of mailboxes near the entrance to the park.
Janet Armstrong, Defendant
[41] Mrs. Armstrong and her husband bought the Campground on April 9, 2010. They are the joint owners and operators of the park.
[42] Mrs. Armstrong disagrees with Ms. Carson as to what was discussed during their first meeting at the Campground, before Ms. Carson bought the trailer and moved in. According to Mrs. Armstrong, she never once told Ms. Carson that she could live at the Campground year-round. What Mrs. Armstrong said was that the trailer that Ms. Carson ultimately bought from the vendors (not the Armstrongs) was at the Campground permanently, and that the Armstrongs were inquiring about a zoning change to permit persons to live at the Campground year-round.
[43] In July 2011, Mrs. Armstrong told Ms. Carson in person at the Campground that any potential zoning change to allow for year-round residency at the park would not be approved and thus was not being pursued. The zoning amendment was never actually applied for.
[44] Upon the expiration of Ms. Carson's six-month Licence of Occupation in October 2011, Ms. Carson repeatedly refused to sign an 11-month Licence. Ms. Carson declared that she was living at the Campground permanently. Mrs. Armstrong told Ms. Carson that she could not do so.
[45] Except the Armstrongs themselves, nobody lives or has lived at the Campground year-round (at least since the Armstrongs bought the park).
[46] As a result of the expiration of Ms. Carson's Licence of Occupation in October 2011 and her repeated refusal between October 2011 and February 2012 to sign an 11-month Licence, the Armstrongs gave to Ms. Carson a notice to vacate the park with her property by May 16, 2012. On that day, Ms. Carson served Mrs. Armstrong with court papers.
[47] Mrs. Armstrong denies that she or her husband made it difficult for Ms. Carson to sell the trailer before or after May 16, 2012. The only condition stipulated by the Armstrongs after May 16, 2012 was that, if Ms. Carson brought an insurance person with her to the Campground to see the trailer, the Armstrongs wanted to see that person's credentials.
[48] Mrs. Armstrong denies that she or her husband damaged any of Ms. Carson's property. Because Ms. Carson failed to move her property out of the park by May 16, 2012, as per the terms of the Licence of Occupation (Exhibit 1), the Armstrongs moved the addition to a safe place near the pool and the trailer to an area off of any campsite.
[49] Mrs. Armstrong testified in support of the damages being sought in the Counterclaim. As indicated previously, the amount claimed for hydro bills incurred by Ms. Carson and paid by the Armstrongs is admitted by the Plaintiff. The $2,000.00 is for labour and time expended over three to four days to move the trailer and the addition, although no funds were actually paid by the Armstrongs. The $718 is for two months of lost rental income for Ms. Carson's former site while her property was still on it. The $150 per month storage fees were stipulated in Exhibit 1 and known to Ms. Carson if her property was not removed from the park by May 16, 2012.
Analysis
Ms. Carson’s Claim
[50] I am not satisfied that Ms. Carson has proven on balance that Mrs. Armstrong made the alleged representation that Ms. Carson could live at the trailer permanently.
[51] In the circumstances, the Plaintiff’s claim must fail. It is unnecessary to address the other requirements of the tort of misrepresentation.
[52] Interestingly, this case bears many significant factual similarities to what presented itself to Justice Herold of the Ontario Superior Court of Justice in Adamson v. 544461 Ontario Ltd., 2004 CarswellOnt 5069 (see in particular paragraphs 22, 26 and 44 of that decision), where the Court also found no misrepresentation.
[53] I make no finding that Ms. Carson is lying or deliberately misleading the Court as to what Mrs. Armstrong did or did not say to her about whether Ms. Carson could live at the Campground permanently. I think that Ms. Carson is mistaken.
[54] Simply put, I find that Ms. Carson has failed to prove on a balance of probabilities that Mrs. Armstrong made an untrue, inaccurate or misleading statement. Specifically, I cannot conclude that Mrs. Armstrong told Ms. Carson, or even that Mrs. Armstrong said something to Ms. Carson that reasonably led Ms. Carson to believe that Ms. Carson could live at the Campground year-round.
[55] Ms. Carson is adamant that Mrs. Armstrong made the alleged representation. Mrs. Armstrong is equally adamant that she did not. The only independent, reliable evidence directly on point as to what the parties agreed to is Exhibit 1, and that document is crystal clear in more than one way that Ms. Carson’s occupation was not year-round.
[56] On the totality of the evidence at trial, testimonial and by way of Exhibits, including the testimony of Mrs. Ramsay whose evidence I accept, I find that it is more likely than not that Mrs. Armstrong told Ms. Carson at the outset
(i) that the trailer was at the Campground and could continue to be at the Campground permanently, and
(ii) that the Armstrongs were inquiring about a zoning change to permit persons to live at the Campground year-round.
[57] Those statements were not untrue, inaccurate or misleading. They cannot ground a claim for misrepresentation.
The Counterclaim advanced by the Armstrongs
[58] Ms. Carson admits that she owes the $311.80 for her hydro bills that were paid by the Armstrongs. Thus, the Defendants are entitled to Judgment for that amount.
[59] I am disallowing the $2,000.00 on the bases that the Armstrongs did not actually pay any money to have Ms. Carson’s property moved off of her site at the Campground after May 16, 2012, and I am not satisfied on balance that the said amount formed part of any agreement between the parties (in particular Exhibit 1) or is otherwise recoverable in law.
[60] The $718.00 being claimed by the Armstrongs for two months of lost income is recoverable as there is credible and reliable evidence from Mrs. Armstrong, which I accept, that Ms. Carson’s former site at the Campground would have been occupied and at least $718.00 total income generated from that occupancy, and from the occupancy of the site taken by the persons who ultimately moved on to site 30, but for the failure of Ms. Carson to remove her property from the campsite by May 16, 2012, which demand was reasonable. Further, it was reasonable for the Armstrongs to give Ms. Carson some grace period after May 16, 2012 before forcibly removing her property from site 30. The Defendants are entitled to Judgment for that amount.
[61] Finally, the $150.00 per month storage fees is recoverable as per the Licence of Occupation marked Exhibit 1. The amount is reasonable. It matters not that the Licence expired in October 2011; it would be entirely inequitable to disallow the claim on the technical basis that the agreement had expired and was not renewed despite repeated efforts by Mrs. Armstrong to have Ms. Carson sign an 11-month Licence. The Defendants are entitled to Judgment accordingly, commencing June 1, 2012 to now and continuing in the future until such time as Ms. Carson removes her property from the Campground. The deadline for that is set out below.
Conclusion
[62] The Plaintiff’s Claim is dismissed.
[63] The Defendants’ Counterclaim is allowed in part. Judgment is granted in favour of the Defendants in the amount of $2,529.80 ($311.80 plus $718.00 plus $1,500.00 for storage fees at $150.00 monthly for the 10 months between June 1, 2012 and April 1, 2013), plus prejudgment and post judgment interest in accordance with the provisions of the Courts of Justice Act.
[64] Going forward, Judgment is granted in favour of the Defendants for storage fees in the amount of $150.00 monthly commencing May 1, 2013 until October 1, 2013.
[65] This Court orders that Ms. Carson shall remove all of her property from the Campground by October 1, 2013, failing which the Armstrongs shall be at liberty to do what they please with the property, including the trailer, subject only to the legal rights of any other party excluding Ms. Carson. Ms. Carson shall not be unreasonably hindered or obstructed in her attempt(s) to remove her property from the Campground or her attempt(s) to sell it while still at the Campground.
[66] It is in the best interests of Ms. Carson to remove her property as soon as possible so as to avoid further storage costs. For example, if the property is removed before May 1, 2013, then Ms. Carson shall not be liable for any principal amount beyond the $2,529.80. This effectively provides Ms. Carson with the time between the date that these Reasons for Judgment are released and the end of April 2013 to arrange for the removal of her property from the Campground at no further expense to her.
[67] The Defendants are entitled to their costs. If the parties are unable to settle the issue of costs, counsel may contact the Trial Coordinator in Owen Sound to schedule a further court attendance of thirty minutes in length, maximum, to hear submissions and consider filings in that regard. I shall consider the matter of costs resolved between the parties if the Trial Coordinator is not contacted by counsel within two weeks of the release of these Reasons.
[68] I wish all of the parties, including Ms. Carson and her daughter, success in the future.
Conlan J.
Released: April 8, 2013
COURT FILE NO.: 12-141SR
DATE: 20130408
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHELLE CARSON
Plaintiff
- and -
HAROLD JAMES ARMSTRONG and
JANET REBECCA ARMSTRONG
Defendants
REASONS FOR JUDGMENT
Conlan J.
Released: April 8, 2013