ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: CV-09-092825-00
Date: 20140416

B E T W E E N:

ERNESTO NATARELLI AND LINA NATARELLI

Patrick Di Monte, for the Plaintiffs

Plaintiffs

• and -

ADNAN SHEIKH

Pathik Baxi, for the Defendant

Defendant

Heard: March 4 and 5, 2014

REASONS FOR JUDGMENT

Justice D.L. Edwards

Introduction

1The plaintiffs claim damages in the amount of $100,000 and punitive damages in the amount of $25,000 against the defendant for trashing or retaining the plaintiffs’ property following the termination of a residential lease.

2The defendant denies that he acted improperly and asserts that, with the exception of certain appliances that he disposed of, all of the plaintiffs’ goods were returned to them.

3For the following reasons I dismiss the plaintiffs’ action.

Background

4On the seventh day of September 2004 the plaintiffs executed a Rental Application and an offer to lease the premises municipally known as 66 McCrimmon Drive Brampton (“Property”). On the same day the defendant/landlord accepted the said offer (“Agreement to Lease”).

5Pursuant to the Agreement to Lease the tenancy began on the 10th day of September 2004.

6Due to the non-payment of rent the landlord commenced legal action and obtained an order terminating the lease, with a move out date of February 13, 2005. The Property was not vacated by that date, and on March 15, 2005 the sheriff obtained vacant possession of the Property.

7The plaintiffs commenced an application before the Ontario Rental Housing Tribunal (“Tribunal”) to determine whether the Tenant’s Protection Act (“Act”) applies. A hearing on this issue was held on the 26th day of April 2005. The Tribunal determined that it had jurisdiction and that the landlord agreed with the tenants to another moving date after the 48 hours allowed by section 42(5) the Act, and then breached that agreement. Further, the tenants suffered damages as a result of the actions of the landlord and should be liable.

8The Tribunal ordered that:

a. the landlord shall allow the tenants to move their remaining properties from the rental unit’s garage on Friday, April 29, 2005 at about 6 PM;

b. the landlord shall pay the tenant's $2000 as an abatement of rent;

c. if the landlord does not pay the tenants the full amount owing by May 15, 2005 the tenants may recover this amount by deducting from the arrears of rent each month from May 1, 2005; and

d. the tenants have the right, at any time, to collect the full amount owing or any balance outstanding under this order (“Tribunal Order”).

9The plaintiffs appealed this order to the Divisional Court, requesting an order to set aside that part of the Tribunal Order that the defendant pay the sum of $2000, and replace it with an order that an administrative fine of $10,000 be paid, plus an amount to compensate the tenants for the destruction of the tenants’ goods. In the alternative, they requested that the matter of damages be referred to arbitration or reference for a determination of quantum.

10On February 20, 2007 the Divisional Court set aside that part of the Tribunal Order that awarded the tenants $2000 and substituted an order that the tenants had 60 days in which to serve the landlord and file with the Tribunal their election whether to proceed with an assessment of their losses before the Tribunal, or alternatively to commence proceedings in a court of competent jurisdiction pursuant to section 193 (2) of that Act.

11On February 15, 2009 the plaintiffs commenced this action.

12On March 22, 2013 both parties brought motions for summary judgment. The defendant alleged that the claim was statute barred and the plaintiffs sought a summary judgment with respect to their damages. Justice Price dismissed both motions.

13At the commencement of this trial the plaintiff submitted that the only matter before me was an assessment of the plaintiffs’ damages. The defendant disagreed. He asserted that if the plaintiffs were restricting this trial to an assessment of the damages arising as a result of a breach by the landlord of a later move date, then the defendant agreed that liability already had been determined. However, if the plaintiffs were claiming damages for matters arising after the date of the tribunal order, then the defendant asserted that I must determine issue of liability and damages with respect to such matters.

14I ruled that the Tribunal Order found that the landlord after agreeing to a move date after the 48 hour provision of the Act, breached this agreement, and due to that breach, the tenants suffered damages. It is only those damages that arise directly from this delay for which liability has been determined. For any event arising after the date of the order, the plaintiff must prove liability and damages.

15Accordingly, the plaintiffs must prove on a balance of probabilities that they sustained damages as a result of a breach by the defendant of an agreement to allow the plaintiff more than 48 hours to remove their contents. In addition, with respect to matters arising after the Tribunal Order, the plaintiff must prove on a balance of probabilities that the defendant trashed or otherwise retained the plaintiffs’ property and the value thereof.

Witness

16There were four witnesses. The plaintiff, Lina Natarelli and her granddaughter, Daniella Arena, testified on behalf of the plaintiffs. The defendant, Adnan Sheikh, and Manish Sharma testified on behalf of the defendant.

17In general, for the reasons set out below where their evidence conflicted, I preferred the evidence of Adnan and Manish to the evidence of Lina and Daniella.

Delay

18The plaintiffs assert that the recollection of the witnesses has deteriorated due to the passage of time from the commencement of the tenancy, and that if the recollection of a witness was challenged due to the passage of time, it should not be held against the plaintiffs.

19I am satisfied that the delay is attributable to both parties, and that I must deal with the evidence as presented to me, without drawing an inference in favor of, or against, either party.

Tenancy

20The parties agree that the tenancy went into default for failure to pay their rent and that a proper order for the eviction of the tenants was obtained (“Eviction Order”). They disagree upon who were the tenants or subtenants.

21Lina testified that she and her husband entered into the Rental Application and the Agreement to Lease. She acknowledged that these documents stated the only occupants of the Property would be the two plaintiffs. However, she testified that she orally advised the defendant that her daughter, Diane Arena and her daughter's children (“Arena Family”) would also be living in the Property and that the defendant agreed to this.

22Daniela was 10 or 11 years old at the time of the termination of the lease. She did not testify with respect to the issue of who was entitled to reside in the Property.

23The landlord testified that he leased the Property only to the two plaintiffs and that he was present when they moved in. The amount of furniture that was moved into the Property seemed to be appropriate for two people. He stated that he was planning to sell the Property, so he wanted to keep the number of people in the home to a minimum. He received the first and last months’ rent as a deposit, and postdated cheques for the balance of the rent. He did not know that the Arena Family had also moved into the Property, and he did not provide his consent.

24The landlord also testified that he only discovered that the Arena Family was residing in the Property after he obtained and enforced the Eviction Order.

25All of the proceedings before the Tribunal named the tenants as the two plaintiffs, including the application commenced by Diane Arena as agent for the two plaintiffs. There is no reference in any of these proceedings to the Arena Family being tenants of the Property.

26The Agreement to Lease executed on the seventh day of September 2004 by the plaintiffs and the defendant states that the tenant is Ernesto Natarelli and Lena Natarelli. The Agreement to Lease does not provide that the Arena Family is a tenant.

27I find that the tenants of the Property were only the two plaintiffs and that the plaintiff's daughter, Diane Arena and her children were neither tenants, nor subtenants as defined in s. 18(1) of the Act.

Events Occurring between March 15, 2005 and April 28, 2005

28There was much evidence about what transpired between March 15, 2005 and April 28, 2005; the latter date being the date when the Tribunal made an order to allow the plaintiffs an opportunity to remove their contents from the premises on Friday, April 29, 2005 at 6 PM.

29I find that the plaintiffs failed to remove all of their contents of the property by March 15, 2005, and further that they failed to remove all of their contents from the premises by March 17, 2005.

30I accept the evidence of the defendant and Manish Sharma who both testified that on March 17, 2005 they attended at the Property to watch the plaintiffs remove their property. The tenants did not attend at the premises on that day.

31Subsequently, there was a discussion between the tenants and the plaintiffs about moving. I find that the defendant suggested that the tenants retain professional movers if they were having difficulty finding someone to assist on the move, and I reject the evidence of the plaintiff that the defendant required that professional movers undertake the move.

32On March 27, 2005 the landlord removed the stove, fridge, washer and dryer and gave them to a charity. In his opinion they were not in working order.

33I accept the defendant’s evidence that the letter dated April 6, 2005 from the plaintiffs’ lawyer did not come to his attention until the hearing before the Tribunal.

34The Tribunal ordered the defendant pay an abatement of $2000 of rent for failing to honour the alternative moving date of March 20, 2005.

35I accept that the Tribunal found that the defendant breached this agreement. However, the Tribunal did not make any further finding, beyond ordering the $2000 abatement.

36As the Divisional Court set aside the portion of the Tribunal's order requiring the abatement of $2000, I must determine the damages, if any, suffered by the plaintiffs.

Removal of Contents

37Both parties agree that on several occasions between March 15, 2005 and April 29, 2005 the tenants or members of the Arena Family attended at the Property and removed certain contents. The defendant testified that he moved all the remaining contents of the home into the garage.

38Both parties agree that on April 29, 2005 Diane Arena attended at the Property with movers and removed all of the contents of the garage. The defendant attended together with Manish as a witness.

39The plaintiffs argued that the defendant on April 6, 2005 rented a 14 to 20 cubic bin; placed it on the driveway of his home that was located close to the Property; and dumped contents of the Property into it. The defendant denied this allegation. The plaintiffs provided no evidence of the existence of this blue bin, other than an allegation in cross-examination. I find that there was no blue bin.

Quantum

40Lina testified that when she and her husband moved out of the premises two months after the commencement of the tenancy, she gave any remaining furniture and goods to her daughter Diane. By her own testimony the plaintiffs did not own anything on the Property at the time of the eviction.

41I have previously found that no member of the Arena Family was a subtenant, as the consent of the landlord had not been obtained as required by section 18(1) of the Act. Accordingly, the Arena Family does not have the protection of section 18(4) of the Act.

42For that reason alone the plaintiffs’ claim fails. Although the Tribunal found a breach of an agreement to the alternative moving date, the plaintiffs have not demonstrated that they sustained any damages as a result thereof, nor that the defendant trashed or otherwise retained the plaintiffs’ property after April 28, 2005.

43Further, I do not accept that the contents that the plaintiffs allege were on the Property were in fact on the Property at the time of eviction.

44Lina testified that when she and her husband vacated the premises two months after the beginning of the tenancy, she left the remainder of the contents to Diane as she "didn't have much". On the other hand, the contents that the plaintiffs assert were in the Property and owned by the Arena Family at the time of eviction have a value of approximately $60,000.

45Lina testified that the handwritten list of assets that the plaintiffs allege the defendant trashed or removed (“List”) was prepared primarily by Diane and Daniella. Significantly, this list was faxed from Staples to her lawyer's office with a timestamp from the facsimile transmission of 04/25/2005; In other words April 25, 2005. However the tenants could not be aware of what items were missing until Diane, on behalf of the tenants, attended at the Property to remove all of the contents from the garage on April 29, 2005; four days after the List was faxed to their lawyer.

46I do not accept Lena's evidence that the timestamp at Staples was incorrect.

47Further, the defendant produced documentation demonstrating that the Olympus camera and the HP computer described in detail on the List were not for sale in Ontario prior to the eviction date. Lena had no explanation as to how these items could be on the Property at the date of eviction if they were not available for sale at that time.

48Daniella testified regarding the creation of the List. At the time of the eviction she was between 10 or 11 years old. She testified that Diane primarily prepared the List with the assistance of other members of the family.

49According to the List, Diane owned a fur coat; most of the furniture was 3 to 5 years old; Diane or her spouse purchased an expensive Olympus camera and HP computer; all at a time when they were unable to pay the rent. It strains credibility that when Lena and her husband vacated the Property the Arena Family had very little, and yet 5 or 6 months later, they owned these expensive items, and yet were unable to pay the rent. Diane did not testify to explain this apparent inconsistency.

50I find that the List was prepared prior to Diane attending the Property on April 29, 2005 to remove the contents from the property; that it is misleading; and cannot be relied upon.

51For that reason as well, I find that the plaintiffs have not proved on a balance of probabilities that they suffered damages as a result of the breach by the defendant of the agreement regarding the alternative moving date, nor that the defendant trashed or otherwise retained contents of the Property.

52I further find that the defendant moved all of the contents of the Property into the garage and that the plaintiffs, by their agent, removed all of the contents from the garage, with the exception of the stove, fridge, washer, and dryer.

53I accept the defendant’s testimony that there were no Maytag appliances on the Property as described on the List and reject the plaintiffs’ assertion that these items, as described on the List, were on the Property at the time of eviction. I further find that the appliances removed by the defendant were not in working order. The plaintiffs have failed to prove either that they owned these appliances, or that they were in working order and had any value.

54Accordingly, the plaintiffs have failed to prove on a balance of probabilities that they suffered damages as a result of the breach by the defendant of the agreed upon alternative moving date. They have also failed to prove on a balance of probabilities that the defendant trashed or retained any goods owned by the plaintiff, or the Arena Family following the eviction.

Punitive Damages

55As I have found that the plaintiffs have not proven any damages against the defendant, the claim for punitive damages fails. The plaintiffs have failed to prove that the defendant improperly retained any of the goods owned by the plaintiffs or by the Arena Family.

Costs

56The plaintiffs’ claim is dismissed, with costs, if demanded.

57The parties may provide cost submissions not to exceed three pages (not including any offers to settle or bill of costs). Counsel for the defendant shall provide his submissions within 15 days. Counsel for the plaintiffs shall provide his submissions within 7 days thereafter, with reply submissions, if any, within 4 days thereafter.

Edwards J.