COURT FILE NO.: CV-12-1669-00
DATE: 2014-05-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Deocharran S. Ramnarace
Self-Represented
Applicant
- and -
Home Trust Company et al.
Amanda Jackson, for the Respondent
Respondent
HEARD: March 25, 2014
ENDORSEMENT
M. J. Donohue, J
Contents
BACKGROUND. 3
RELIEF SOUGHT ON THE MOTION. 5
ARE THE ISSUES RES JUDICATA?. 7
RULE 20 TEST FOR SUMMARY JUDGEMENT. 13
WAS THERE A WRONGFUL EVICTION?. 15
ORDERS SOUGHT BY THE APPLICANT. 22
(I) SETTING ASIDE THE ORDER OF JUSTICE SKARICA. 22
(II) ORDER TO BUY OUT THE REMAINING LEASE. 22
(III) CLAIM OF $27,000. 23
(IV) COMPENSATION FOR MENTAL STRAIN AND ANGUISH. 24
(IV) COMPENSATION FOR STOLEN PERSONAL PROPERTY. 24
EXPERIENCED IN LITIGATION. 27
CONCLUSION. 29
COSTS. 30
BACKGROUND
[1] The applicant, Mr. Ramnarace, lived at 54 Customline road, in a house owned by his two children, Nirmal Seetarram and Rita Seetarram (“the children”). The children had bought this property in the fall of 2009 by way of a mortgage with the respondent, Home Trust.
[2] On May 3, 2011, the children defaulted on the mortgage. The mortgage company issued a Notice of Sale under Charge on June 20, 2011. On August 10, 2011 they issued a Statement of Claim in Hamilton. On August 11, 2011, Home Trust did an occupancy check wherein Mr. Ramnarace advised that he resides there as do the children, the owners. He said he paid them rent of $1,000 per month. Mr. Ramnarace gave evidence in this motion that he said the children did not live there.
[3] On August 16, 2011, Mr. Ramnarace was served with the Notice Demanding Possession.
[4] Home Trust moved for summary judgment in Hamilton before Justice Arrell. Mr. Ramnarace had counsel attend to bring to the court’s attention that Mr. Ramnarace had a lease with his children. However, this was in contravention of the terms of the mortgage. As well, the children, as owners, resided at Customline, so it did not come under the aegis of the Residential Tenancies Act, 2006, S.O. 2006, c.17.
[5] Arrell, J. granted judgment, inter alia, for possession of the property and leave to issue a Writ of Possession.
[6] On December 1, 2011, the children served a Notice of Appeal of the decision of Justice Arrell. No steps were taken and it was dismissed for delay on March 14, 2013.
[7] Home Trust obtained a writ of possession on February 21, 2012. An eviction was scheduled by the Peel Sheriff for April 18, 2012.
[8] On April 17, 2012, the children and Mr. Ramnarace served materials for a same day motion for various relief including a stay of eviction, an order allowing Mr. Ramnarace to remain at the property, and an order that Mr. Ramnarace is an interested party to the action. Justice Reid in Hamilton, heard the motion and dismissed the motion. That decision was not appealed.
[9] The eviction proceeded on April 18, 2012.
[10] On April 24, 2012, Mr. Ramnarace brought a motion in Brampton initially to assert rights as a tenant to remain on the property. There were a number of adjournments. He alleged that some of his possessions left in the house were stolen after the eviction. He seeks various claims as against Home Trust premised on his allegation of wrongful eviction.
[11] Mr. Ramnarace presented evidence that his children, the owners, did not reside at Customline and thereby argued that the Residential Tenancies Act applied and his eviction was improper. He argued that the Superior Court decisions of Justice Arrell and Justice Reid were in error.
RELIEF SOUGHT ON THE MOTION
[12] Mr. Ramnarace initially brought this motion to be allowed back into the property. The motion was not properly constituted, as there was no proceeding in Brampton by way of a claim or application. He sought several adjournments and at some time the property was sold.
[13] Once the property was sold the relief he sought was no longer available. He was ultimately ordered by Justice Price in May 2013, to promptly issue a statement of claim such that this motion would proceed in the context of that litigation. Mr. Ramnarace did so and also amended his motion to seek monetary compensation in his claim for wrongful eviction.
[14] The factual basis of the statement of claim mirrors the facts alleged in this motion. The statement of claim however seeks a claim for general damages and for punitive damages.
[15] The applicant, sometime into the day’s argument, advised that he had issued and served the claim and stated that he expected and understood that the entire claim would be heard and decided in the context of the motion day’s proceedings. Justice Price’s endorsement of June 5, 2013, only refers to the hearing of the motion.
[16] The file providing the statement of claim and statement of defence had not previously been brought to my attention.
[17] Neither party had filed any materials dealing with general or punitive damages.
[18] I do not find it appropriate to deal with the action as a whole in these circumstances. Upon receipt of my endorsement the parties may take the necessary steps to consider whether the action will continue or how.
[19] The motion was presented, although not expressly stated, as a motion for summary judgment under Rule 20. The Applicant was seeking an order for his damages based on the affidavit evidence alone.
[20] The relief sought on the motion was as follows:
i. An order setting aside Justice Skarica’s findings in ordering Mr. Ramnarace to pay costs to the respondent of the attendance on January 2, 2013, in the sum of $800 on or before March 15, 2013;
ii. An order that Home Trust compensate Mr. Ramnarace by buying out the remaining lease;
iii. An order that Home Trust compensate Mr. Ramnarace for his investment of $27,000 into the property;
iv. An order that Home Trust compensate Mr. Ramnarace for mental strain and anguish to him and his family from wrongful eviction; and
v. An order that Home Trust compensate Mr. Ramnarace for stolen personal property while the property was in the respondent’s possession.
ARE THE ISSUES RES JUDICATA?
[21] Before proceeding to deal with the summary judgment motion the respondent raises the issue of res judicata.
[22] Have these matters been previously adjudicated and so estopped by the principle of res judicata?
[23] I refer to the text by Justice Donald Lange, The Doctrine of Res Judicata in Canada, 2nd Ed. (Toronto: LexisNexis Butterworths, 2004) at page 4,
“The doctrine of res judicata is a cornerstone of the justice system in Canada. The foundation of the doctrine is traditionally grounded upon two policy considerations: firstly, the ground of public policy and that it is in the interest of the public that an end be put to litigation, and secondly, the ground of individual right that no one should be twice vexed by the same cause.”
[24] I further refer to the text of Morden & Perell, The Law of Civil Procedure, 1st Ed. (Toronto: LexisNexis, 2010) at page 79,
“The general idea behind res judicata is that as a matter of justice and good sense, if a claim, defence or issue has been adjudicated, then the adjudication is binding on the parties to the proceedings and their “privies” (those interested or affected by the adjudication), and, therefore the claim, defence or issue should not be re-adjudicated in a second proceeding. There should be an end to litigation, and a party and his or her privies should not be harassed with duplicative proceedings.”
[25] Counsel for Home Trust point out that when they brought their mortgage action in Hamilton (Court File No. 11-29390) it was defended and counterclaimed by the children, Nirmal and Rita Seeterram (also known as Rita Shadna).
[26] The defence and counterclaim pled that they made a deal with the caretaker of the property, Mr. D. S. Ramnarace, that he would repair the property for $27,000.
[27] The defence and counterclaim claims $90,000 for mental strain and anguish for the defendants, “and their entire family”.
[28] The defendants, the children, also pled that the court should find that there was a proper lease/tenancy with Mr. Ramnarace. They sought an order from the court to have Home Trust assume the lease agreement. They sought to have Mr. Ramnarace made a third party to the claim.
[29] On November 24, 2011, Home Trust sought the order for judgment before Justice Arrell. Mr. Ramnarace had asked a counsel in the courthouse that day, Mr. Malcolm, to appear on his behalf as he had heart problems and appearing in court caused him stress. Mr. Malcolm had no other information. Mr. Ramnarace had asked Mr. Malcolm to request an adjournment. The request was denied as Mr. Ramnarace was not present. Mr. Ramnarace has deposed that it was near the end of the day and he had stepped out of the courtroom and missed the page. Neither the children nor Mr. Ramnarace had filed any materials in the motion for summary judgment before Justice Arrell. The court had before them evidence of the documents being properly served. Consideration was given as to whether the lease that Mr. Ramnarace had would preclude summary judgement.
[30] Justice Arrell considered on the evidence before him that Mr. Ramnarace held himself out as residing at the property with the mortgagors and he would be evicted pursuant to the writ of possession.
[31] Mr. Ramnarace, although aware of that proceeding did not retain formal counsel; he did not seek intervener status himself under Rule 13.01, as he had in the previous proceeding; he did not seek to bring any other proceedings to have that order appealed nor did he bring the matter before the landlord and tenant board for consideration.
[32] Mr. Ramnarace did not act, but the children filed a notice of appeal and amended notice of appeal with Divisional Court of Justice Arrell’s order on the grounds that their father had a lease. The children also sought a stay of the eviction under Rule 63.01(3), which relates to orders made under the Tenant Protection Act, 1997.
[33] The registrar granted the stay on December 1, 2011. Justice Carpenter-Gunn lifted the stay on February 6, 2012, in so far as the eviction was concerned, as the order was not one made under the Tenant Protection Act, 1997. The appeals of Justice Arrell did not proceed any further.
[34] The children and Mr. Ramnarace then served a motion in Hamilton for April 17, 2012, which was heard by Justice Reid. Various relief was sought including an interim order setting aside the writ of possession of Justice Arrell; an interim order setting aside the Notice to Vacate of April 3, 2012; and an order that Mr. Ramnarace be made a party to the action.
[35] Justice Reid heard that motion and dismissed it. The applicants did not seek leave to appeal Justice Reid’s decision and it is therefore final.
[36] The children’s statement of claim on behalf of themselves and their father was ultimately dismissed for delay on March 14, 2013. The registrar signed the order dismissing the appeal for delay on March 14, 2013. Costs were fixed at $750 as against the children and have not been paid.
[37] Mr. Ramnarace acknowledged that he was a participant in the proceedings in Hamilton. He was having the children take on the claims he sought against Home Trust on his behalf. He was bound as a privy to that outcome.
[38] Mr. Ramnarace does not dispute that the matter was res judicata. He argues that the other justices erred in their rulings. I have no jurisdiction to review those rulings in this action. I am not sitting as an appeal court. Mr. Ramnarace referred me to the Judicial Review Procedure Act, however I do not have authority under that act to review a superior court decision.
[39] I find that the matter of whether there was a tenancy that would prohibit the writ of possession being issued was before the court and Justice Arrell dealt with it. It was before the court again in Hamilton before Justice Reid and dismissed. It is therefore res judicata for this proceeding.
[40] Most of the relief sought in this motion and this action is an attempt to re-litigate matters that were already before the court in Hamilton. I find that Mr. Ramnarace was seeking through his children the same relief that he is seeking in this court. The factual basis is the same in all the proceedings.
[41] I find that the claim for the alleged wrongful eviction is res judicata and cannot be re-litigated in this court. That claim is accordingly dismissed. If it is found that it is not res judicata I have further considered the claim on its merits for the purpose of the Rule 20 motion for summary judgment.
[42] Mr. Ramnarace seeks an order that Home Trust buy out the rest of his lease. This was sought in the previous action by the children on his behalf. I find it to be res judicata in this action and dismiss this claim. If it is found that it is not res judicata I have considered this claim on its merits below.
[43] The claim for $27,000 was not clearly claimed by the children as against Home Trust, rather it was simply mentioned. As such, I find that it has not been claimed nor adjudicated. I have considered this claim below.
[44] The children made a claim on behalf of themselves and “their whole family” for mental anguish. They also sought an order for Mr. Ramnarace to be a party. As it is apparent they were seeking the claim on behalf of their father I consider that this claim has been already made and dismissed. I dismiss this claim on the basis of res judicata. If it is found that it is not res judicata I have further considered the claim on its merits below.
[45] The claim for compensation for stolen personal property post-dates the proceedings in Hamilton. It is not res judicata. I have considered that claim on its merits for the purpose of the summary judgment motion.
RULE 20 TEST FOR SUMMARY JUDGEMENT
[46] Rule 20.04 (2.1) states that the court shall grant summary judgment if there is no genuine issue requiring a trial.
[47] I have reviewed the factual record below to determine if there is sufficient evidence to fairly and justly adjudicate the claims made by the applicant such that summary judgment would be a timely, affordable and proportionate procedure.
[48] The burden in a Rule 20 summary judgment motion is on the applicant to demonstrate that on the record there is “no genuine issue requiring a trial.” Rule 20.04(2)(a).
[49] The test on summary judgment motions under Rule 20 has recently been considered and expanded by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.
[50] Rule 20.04 states that the court shall consider the evidence submitted by the parties and weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence. The court may exercise these powers unless it is in the interest of justice for such powers to be exercised only at a trial.
[51] The Supreme Court of Canada directs that the court should first determine if there is a genuine issue requiring trial based only on the evidence before the judge, without using the new fact-finding powers: see Hryniak, at para. 66.
[52] The Supreme Court continued and stated at para. 66:
If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[53] The “interest of justice” as set out in Hryniak directs the court to consider the consequences of the motion in the context of the litigation as a whole. At para. 60 the court provides the following examples:
…if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.
[54] The Supreme Court of Canada directs that I am first to determine if there is a genuine issue requiring trial based on the evidence in the motion record, without using the new fact-finding powers.
WAS THERE A WRONGFUL EVICTION?
[55] Mr. Ramnarace’s position at this motion is that the eviction was improper as he had a lease with his children. He alleges that the children, the owners, did not live at the Customline property and as such, the case would have had to go before the Landlord and Tenant Board.
[56] Tenants to whom the Residential Tenancies Act applies may not be evicted by an order for Writ of Possession issued by the Superior Court. They are subject to eviction only through the Landlord and Tenant Board.
[57] It has always been the position of Home Trust that the Residential Tenancies Act does not apply to Mr. Ramnarace as they understood that he shared the house with his children, the owners. The Act states that it does not apply where;
Section 5(i) living accommodation whose occupancy or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;
[58] In making this determination the record as a whole must be considered.
[59] Mr. Ramnarace states in his affidavit that the children did not reside there. It is a bald statement with no supporting evidence or material. He does not state where they did live, at the material time.
[60] Nirmal Seetarram, his son, provided an affidavit dated November 15, 2013, stating he did not live there. He does not give any other information about where he did live, or produce any supporting or corroborating evidence. Similarly, Rita Seetarram, his daughter, deposed on November 13, 2013, a bald statement that she relocated on or about February 2011. No other supporting evidence was provided.
[61] These statements contrast with their statutory declaration of November 13, 2009, where both Nirmal and Rita Seetarram declared the property is owner occupied and not tenanted. They gave the Customline address as the address for service of the mortgage charge.
[62] Mr. Ramnarace argued that an order dated October 24, 2011, regarding a dispute on the lease from the Landlord and Tenant Board was evidence that the lease was valid and that the children did not live at the property. That proceeding was an order consented to by the children. It does not consider if it is a proper tenancy. There is no information of the residency of the owners. I do not find that order helpful in this dispute.
[63] The lease shows the children address as the Customline address.
[64] The lease is written in such a way that the owners have few rights. It does not read as a legitimate arms-lengths transaction in any way. The standard rights of a landlord on a standard form lease are crossed out.
[65] The lease shows that he had the entire house for rent at $1,000 per month but mortgage payments by the children to Home Trust were $2,397.62 per month. (It was purchased November 16, 2009, for $548,500 of which Home Trust provided a mortgage of $537,489.)
[66] Mr. Ramnarace deposed that $1,000 rent is reasonable for a four-bedroom home and relied on a Craigslist posting for a similar property located at 4040 Lookout Ct. in Mississauga that was renting for $1,000. In response the respondent provided sworn evidence by Ms. Hughes that she could not locate such a posting on Craigslist but rather provided seven MLS listings of that property indicating a range of monthly listings of $3,500 to $5,000 per month. Other property listings from a broker show rentals of between $2,135 and $2,700.
[67] A reasonable inference for Mr. Ramnarace only paying $1,000 a month is that he shared the residence with one or more of the children.
[68] In previous proceedings with Royal Bank on Invergordon Lane there is evidence that Mr. Ramnarace, also known as D. Seetarram lived at that house with his wife Jasmin as well as Nirmal and Rita Seetarram, the children of the Customline property. It appears the whole family ultimately left the Invergordon property in the fall of 2009. I note that that is when Nirmal and Rita Seetarram then bought the Customline property.
[69] All the correspondence with Home Trust is for Customline. There is nothing to indicate that the children had another residence and that correspondence should be sent elsewhere.
[70] Mr. Aceti, the process server, swore in his affidavit that Mr. Ramnarace stated he resided with the children Nirmal and Rita Seeterram, that they were not home at the time and that they shared the entire house together, with Mr. Ramnarace paying $1,000 per month. This is supported by the contemporaneous occupancy check form that he completed August 11, 2011.
[71] Mr. Ramnarace deposed that that he clarified their living situation on other pages of the occupancy check document. Mr. Aceti’s reply affidavit states that the occupancy check report is one page only. The document is produced.
[72] Mr. Ramnarace accepted service of the statement of claim upon the children from Mr. Aceti on August 11, 2011, on the basis that he was an adult member of the same household.
[73] The children filed their statement of defence and counterclaim and they admitted being in possession of the property. In their defence they describe their discussions to bring the mortgage into good standing in July 2011, and receiving a messenger from the respondent “at the door”. There is no indication that the children gave any other residential address to the respondent than the Customline address.
[74] Nirmal Seetarram also wrote an email to Home Trust on July 14, 2011, again discussing bringing the mortgage arrears and stating, “….you asked me to send it to you……to my surprise the very next morning I received a letter from a gentleman who came to the door and I called you, immediately….”. It is reasonable to conclude that Nirmal Seeterram was at the Customline address to receive the correspondence from Home Trust.
[75] Nirmal Seeterram reiterated that statement in August 16, 2011, writing to Home Trust in a letter. He wrote, “The next day you sent a messenger at #54 Customline Drive Brampton, Ontario L7A 3C2 for me to call you. I immediately called you while the gentlemen was still waiting at the door.” (emphasis added) This supports Nirmal Seeterram residing at the Customline address.
[76] This letter by Nirmal Seeterram is after the date Mr. Aceti did his occupancy check and served the statement of claim on Mr. Ramnarace and the children. No mention is made by Nirmal of boarders or tenants in the home. Rather, the letter states, “I am not going to sit down and lose my house having paid in excess of $2,897.82 per month for the last year and a half plus.”
[77] This letter of August 16, 2011, has a return address label on the envelope of Nirmal & Rita Seetarram, 54 Customline Drive, Brampton, Ontario, L7A 3C2.
[78] The children gave only a post office box as an address for service on their statement of defence and counterclaim and not any other residence.
[79] Mr. Ramnarace also claimed, in his list of stolen jewellery, items belonging to his son Nirmal.
[80] Mr. Ramnarace filed the notice of lease on August 4, 2011, after the proceedings began against the children by Home Trust. He filed Nirmal Seetarram’s address as 307 Robinson St. Oakville. He filed Rita Seetarram’s address as 5763 Invergordon Lane, Mississauga. This is an address that the entire family had been evicted from by order of Justice Corbett Sept 23, 2009, and then Justice Dunn finally in November 2009. I find this information by Mr. Ramnarace to be knowingly incorrect and makes it more likely that Rita Seetarram still resided at the Customline address.
[81] The lease is dated March 2011. It is registered on title on August 4, 2011, after the mortgage enforcement proceedings were commenced. Home Trust was first advised of the registration as of April 24, 2012, after all the Hamilton proceedings were completed.
[82] On summary judgment motions I can make findings of credibility.
[83] The evidence presented does not persuade me on a balance of probabilities that the children resided other than at the Customline residence.
[84] As I find that the children resided at Customline, it was a shared occupation. The Residential Tenancies Act does not apply. Mr. Ramnarace was properly evicted pursuant to the writ of possession.
ORDERS SOUGHT BY THE APPLICANT
(I) SETTING ASIDE THE ORDER OF JUSTICE SKARICA
[85] At the opening of the motion, the parties agreed that, in the fall, Mr. Ramnarace paid that costs order and it was no longer an issue for me to adjudicate.
(II) ORDER TO BUY OUT THE REMAINING LEASE
[86] The lease was between Mr. Ramnarace and his children; his son and daughter. The lease was in contravention of the terms of the mortgage between the respondent, Home Trust, and the children. The children defaulted on their mortgage, which resulted in the writ of possession and eviction of all occupants.
[87] There is no evidence that Mr. Ramnarace paid rent after the eviction, not surprisingly.
[88] As noted above, I find that Mr. Ramnarace was, in essence, a boarder in the house owned and occupied by his children.
[89] Mr. Ramnarace did not provide any legal authority for a claim where the mortgagee is ordered to buy out a boarder’s lease. I see no basis for ordering it either factually or legally.
[90] This claim is dismissed.
(III) CLAIM OF $27,000
[91] Mr. Ramnarace deposed that he invested $27,000 in his children’s house. Later he said he actually invested $40,000. Later in his argument he said it was $50,000.
[92] There are a multitude of affidavits and documents by the plaintiff. He advised that he invested in the property to clean up the mildew and problems arising from their discovery in 2011 that the property had been used as a grow-house for marijuana.
[93] Mr. Ramnarace states that he loaned all this money to his son. There is no documentation of a loan. There is no mention of a loan in the affidavit provided by his son, Nirmal Seetarram.
[94] There are no particulars of the costs of repairs. There are no receipts. There are no quotations from contractors. There are no invoices from contractors. At best there are photographs showing possible mould and mildew.
[95] There is simply an inadequate basis for proving money was spent or invested in this property.
[96] The purported loan is not secured on the property. There is no privity of contract between Mr. Ramnarace and Home Trust on this issue. I find no basis for this claim factually or legally as against Home Trust.
[97] This claim is dismissed.
(IV) COMPENSATION FOR MENTAL STRAIN AND ANGUISH
[98] Mr. Ramnarace provided evidence that he was embarrassed by the eviction. The initial notice of proceedings was in August 2011. Despite the fact the final order for eviction did not occur until spring 2012, Mr. Ramnarace had not packed or prepared to leave the property. I find the disorderly departure was, in part, contributed to by his own behaviour.
[99] There is no medical evidence provided to the court of a medical condition or medical treatment resulting from these events.
[100] I dismiss this claim for relief.
(IV) COMPENSATION FOR STOLEN PERSONAL PROPERTY
[101] Mr. Ramnarace claims that a number of items that were left in the house following the eviction were stolen.
[102] The eviction occurred April 18, 2012. The evidence of the property management company is that there were a number of adult family members, male and female, present that began to take items out of the house. As previously described, this was an unorganized process caused by Mr. Ramnarace lack of preparation, even after months of notice.
[103] There is no evidence of the value of these items. There is no evidence of the receipts for any of the items claimed to be missing. In the occurrence report it states “value of stolen items $6,155”. However, there is no evidence how that was determined.
[104] There were claims for jewellery from two safety deposit boxes under the master bedroom bed and Blackberry phones. One queries why Mr. Ramnarace did not take such small valuable and portable items with him.
[105] The evidence is that the respondent hired a property management company promptly, who changed the locks, secured all the windows and doors and put a lock box on the front door. As well, they installed a 2 ½ inch deadbolt on the side door. It appears the garage door had an electric closure apparatus.
[106] The property management company did regular inspections, walking through the property and confirming all doors and windows were secure.
[107] Between April 18, and April 28, 2012, the alleged time when thefts occurred, the property management company attended twice to inspect that the property was secure and to feed the fish. They attended on April 21 and April 25, 2012.
[108] It was arranged that Mr. Ramnarace would attend to pick up his possessions on April 28, 2012. The evidence by the management company was that when they attended the property it remained secure and all the windows and doors remained locked.
[109] Home Trust has provided ample evidence that they dealt with the contents of the house as would a prudent owner. They demonstrated reasonable care in having the locks changed, a dead bolt installed, and doing regular inspections.
[110] When the Applicant arrived April 28, 2012, with various adult family members he said things were missing so police came to investigate.
[111] The Applicant was allowed access to remove contents on June 1, 7, and 22, 2012.
[112] Mr. Ramnarace’s evidence is that the property was the subject of a break and enter. He suggested there was evidence of this, for example, from photos of scraping on table legs and doorframes. No evidence, however, was shown of forced entry.
[113] There is no suggestion or evidence that the respondent was negligent or that the property management company did anything negligent.
[114] The evidentiary basis for the claim is not proven on a balance of probabilities. There is no negligence. Mr. Ramnarace contributed to the loss by not preparing his possessions when facing eviction.
[115] Months after eviction Home Trust was still storing things from the house not claimed including tables, chairs, tires, stoves, dryer, cabinets etc. at Tippet-Richardson. The items were finally sold at auction after January 2013.
[116] I dismiss the claim for compensation for stolen personal property.
EXPERIENCED IN LITIGATION
[117] Although Mr. Ramnarace was self-represented he appeared in court with organized materials. He was articulate and energetic in his arguments. As noted below he consulted with lawyers to pursue his case.
[118] He is no stranger to this type of litigation.
[119] Mr. Ramnarace assisted on his wife’s claim and acted as her agent as D. Seetarram in 2005 when she had a lease for a house in Hamilton on Invergordon. Both of them applied in that case for standing. In that house, she pled she had invested $60,000 into the house which had been a grow-house. The owner of the house however had not paid the mortgage and so the mortgagor sought a writ of possession as against the owner.
[120] The mortgagor sought to evict the family at the landlord and tenant board including Mr. Ramnarace, and his son Nirmal and daughter Rita. The eviction was denied by the landlord and tenant board as there was a lease to February 2009. (Nirmal and Rita obtained the mortgage for the subject property, Customline, later that year in November 2009.)
[121] Mr. Ramnarace was in court before Justice Corbett regarding the applicant’s wife’s tenancy of Invergordon on September 23, 2009, at which time CMHC the mortgager was granted a writ of possession enforceable as of November 2, 2009.
[122] Mr. Ramnarace, as Deocharran Seetarram, was again in court November 13, 2009, regarding orders to remove contents. Dunn, J. ordered, “other relief refused as attempts to circumvent order of Justice Corbett.”
[123] No evidence was provided that Mr. Ramnarace has pursued any of his claims as against his son Nirmal Seeterram for any of these damages or claims in this action when as his purported landlord the eviction resulted from Nirmal and Rita’s failure to pay the mortgage. The family appear to be acting in concert or cooperatively.
[124] Mr. Ramnarace in his arguments on costs also expressed his outrage that Home Trust was pursuing his son for costs pursuant to the costs order in the Hamilton action and causing hardship to his son.
[125] Mr. Ramnarace argued that I should not consider the other proceedings involving the Invergordon property and the actions of his family. I have decided this motion, regarding the Customline property, based on the evidence and argument on the record. I note the previous proceedings only to recognize that, although self-represented, the applicant has experience in the courts in these matters.
CONCLUSION
[126] I have found that the claims for the alleged wrongful eviction, the claim for buying out the balance of the lease, and the claim for mental strain and anguish are res judicata and are dismissed.
[127] I considered those claims on their merits as well and dismissed them.
[128] The claim for the $27,000 investment and compensation for stolen property has been considered on the record provided. There is an insufficient basis, factually and legally, for me to grant summary judgment on either claim. Both claims are dismissed.
COSTS
[129] Both Mr. Ramnarace and counsel for Home Trust behaved professionally and with courtesy with one another and with the court. The motion took a full day and had extensive materials filed by both sides.
[130] The parties gave their submissions on costs at the end of the hearing, in the alternative.
[131] Mr. Ramnarace sought $7,000 if successful, as he had to take time and effort to prepare all his briefs and attend a number of times. He advised that he consulted with lawyers and paid their bills to prepare his case. He did not have any of the lawyers accounts with him and stated he was unaware he had to prepare his bill of costs. I pointed out that in Justice Price’s endorsement of December 4, 2013, that he specifically stated that “if costs are to be claimed a costs outline shall be required”.
[132] If the respondent is successful in dismissing the motion the Applicant stated that only $3,500 should be paid. He states that there is duplication of work as counsel for Home Trust has already billed his son the costs in the Hamilton action for the work done there.
[133] Ms. Jackson, counsel on behalf of the respondent, sought her costs of $46,638.51 on a substantial indemnity rate, which is much less than her actual rate to the client. There were a number of adjournments at the request of the applicant that took much of the day’s attendances.
[134] On December 4, 2013, Mr. Ramnarace appeared to argue the motion wearing a medical mask; Justice Price adjourned the hearing, as it was difficult to hear the applicant’s voice. The applicant was ordered to produce a medical note. The note stated that Deocharran Seetarram was seen November 30, 2013, for acute sinusitis.
[135] If the applicant was successful, the respondent’s position is that no costs be paid in the circumstances as so much of the litigation was protracted by the applicant’s handling of the litigation; that the matter was dealt with initially in Hamilton; that he did not promptly issue a claim in Brampton; that he required numerous adjournments, that initially he provided no address for service, and then provided a post box for service that was then closed; that his conduct in the litigation contributed to its’ length and complexity.
[136] I have found the respondent, Home Trust to be the successful party on all issues. The successful party, in my discretion, under Rule 57.01 should be ordered their costs. The attendances and preparation of materials were extensive in this motion.
[137] I have reviewed the costs outline of Home Trust. The work done is set out clearly and reasonably for what Home Trust has done. However, I deduct $1,500 for the defence to the statement of claim as that relates to the action as a whole. This has been a long, complicated and duplicative process for Home Trust. While it is a close call I do not find the applicant’s conduct of the proceeding to be reprehensible enough to warrant substantial indemnity costs.
[138] I order the applicant to pay the respondent partial indemnity costs of $35,000. The applicant has shown to the court his Canadian citizenship card and his passport. One is in the name of Deocharran Ramnarace Seetarram and the other is in the name of Deocharran Seetarram Ramnarace. On other documents he is shown as D.S. Ramnarace. He agrees that he is one and the same person.
[139] My order for costs is as against the applicant D. S. Seetarram a.k.a. Deocharran Seetarram Ramnarace and a.k.a. Deocharran Ramnarace Seetarram.
M. J. Donohue, J
Released: May 30, 2014
COURT FILE NO.: CV-12-1669-00
DATE: 2014-05-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Deocharran S. Ramnarace
Self-Represented
- and –
Home Trust Company et al.
Amanda Jackson,
for the Respondent
ENDORSEMENT
M. J. Donohue, J
Released: May 30, 2014