Court File and Parties

COURT FILE NO.: CV-13-0033-00
(Belleville)

DATE: 2013Nov06

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

MR. GREEN SEYMORE GREEN

Plaintiff

– and –

MS. MICHELIN MICHELIN

Defendant

Scott McMahon, for the Plaintiff
Lucienne MacLauchlan, for the Defendant

MACLEOD-BELIVEAU, j.

REASONS FOR DECISION

AS TO AGGRAVATED AND PUNITIVE

DAMAGES, PRE-JUDGMENT INTEREST AND COSTS

[1] On April 16, 2013, Mr. Green was successful in obtaining summary judgment with short service to compel the defendant to vacate his residence situate in Amherstview, Ontario within 48 hours, and for a police assist order in relation to the defendant vacating the property. The issues of aggravated and punitive damages, pre-judgment interest and costs were reserved for written submissions which were duly filed by counsel.

[2] Mr. Green seeks aggravated and punitive damages in the amount of $10,000.00, plus pre-judgment interest, and substantial indemnity costs. The total amount of costs sought is $3,852.06 inclusive of disbursements and H.S.T. I find that Mr. McMahon’s Bill of Costs as to time and disbursements to be reasonable in all the circumstances of this case.

[3] The claim is resisted by Ms. Michelin. Her counsel, Ms. MacLauchlan’s position is that Ms. Michelin’s conduct was not unreasonable or in bad faith and is not the kind of conduct to support a damage award for aggravated and punitive damages. Further, she submits that Rule 20.06 as to costs is not mandatory, but discretionary.

[4] The parties had been in a common law relationship for six years, then separated, and in 2009, resumed a long distance relationship. Mr. Green was in Ontario and Ms. Michelin remained in Newfoundland. Ms. Michelin moved to Ontario in September of 2010 and Mr. Green lived in Corunna, Ontario. In November of 2010, Mr. Green moved to Amherstview, Ontario while Ms. Michelin continued to go to college in Peterborough. She kept an apartment in Peterborough until March of 2012 when she finished college. Ms. Michelin’s position is that they have been residing together in Amherstview since September of 2010. That fact is disputed by Mr. Green who maintains that they did not start living together until May of 2012 when she had finished school. Justice Minnema dismissed a family law motion on January 21, 2013 in Napanee as the parties were not spouses. The Family Court therefore lacked jurisdiction. The matter then proceeded as a civil action, commenced in Belleville Superior Court, to end Ms. Michelin’s “illegal occupation” of Mr. Green’s home.

[5] I found that Ms. Michelin had no legal right to remain in the home when the motion came before me on April 16, 2013 in Belleville. I encouraged the parties to resolve the matter as the issues of her continued occupation of the home were serious. Mr. Green had been removed from the home on December 13, 2012 as a result of being arrested for an alleged domestic assault, and his terms of bail prevented him from returning to that residence. This fact, however, did not resolve the issue of Ms. Michelin’s continued illegal occupation of the home.

[6] The parties, on the return date of the motion, ultimately agreed that Ms. Michelin would vacate the property in 48 hours, on or before April 18, 2013.

[7] I find that Ms. Michelin was aware of her legal situation when she received a letter from Mr. Bien, Mr. Green’s former counsel, on January 25, 2013 that included a formal Notice of Trespass. She should have immediately vacated the property, but failed to do so necessitating the civil action before me. The statement of claim was issued by the court on April 8, 2013. By then, Ms. Michelin had illegally resided in Mr. Green’s home for approximately four months, and contributed nothing to the home’s expenses during her occupation. In addition, she received $5,000.00 from Mr. Green to assist with her relocation, but she failed to move. A portion of these funds, however, was used by her to rent a vehicle so that she could get to work. Mr. Green had re-possessed her vehicle while she was at work as it was legally his.

[8] An award of aggravated and punitive damages requires careful consideration. I cannot find on the facts of this case that Ms. Michelin’s actions were malicious and outrageous so as to deserve punishment by way of an aggravated and punitive damage award. Her actions were legally wrong and she took advantage of the opportunity to live in his home for free until she was forced to vacate by a court order. I decline to award aggravated and punitive damages in these circumstances. In my view, the appropriate remedy is a substantial costs award.

[9] I find that Ms. Michelin had several months to make alternate living arrangements and failed to do so in a prudent fashion. She was provided with $5,000.00 in funds from Mr. Green to assist in her relocation which is very significant in the court’s view. This financial gesture by Mr. Green is exactly what the court would expect a reasonable person to do in the circumstances. The quantum of $5,000 was totally appropriate. Still, Ms. Michelin failed to vacate Mr. Green’s home.

[10] Her actions left Mr. Green no choice, but to commence this action, and motion for summary judgment. Her actions and conduct in that regard require, I find, a significant award of costs against her.

[11] After duly considering all of the factors in an award of costs as outlined in the Rules of Practice, and in the exercise of my discretion, I award costs in this matter to Mr. Green on a substantial indemnity basis in the full amount as claimed of $3,852.06.

[12] Order to go that the Mr. Green’s claim for aggravated and punitive damages and pre-judgment interest is dismissed. Ms. Michelin shall pay to Mr. Green the sum of $3,852.06 as his fixed costs on a substantial indemnity basis, inclusive of disbursements and HST, within 90 days. Mr. McMahon to take out the order. Approval of the Order by Ms. McLauchlan is dispensed with. The Order may be sent to me for my direct signature, if necessary.

The Honourable Madam Justice H. MacLeod-Beliveau

Released: November 6, 2013

COURT FILE NO.: CV-13-0033-00
(Belleville)

DATE: 2013Nov06

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

MR. GREEN SEYMORE GREEN

Plaintiff

– and –

MS. MICHELIN MICHELIN

Defendant

REASONS FOR DECISION AS TO AGGRAVATED AND PUNITIVE DAMAGES, PRE-judgment interest and costs

MacLeod-Beliveau J.

Released: November 6, 2013