COURT FILE NO.: CV-13-2878-00
DATE: 20140916
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CARL GRELLETE – and – JOANNE SMITH
BEFORE: Seppi J.
COUNSEL: Harjinder S. Chahal, for the Plaintiff
Anna S.P. Wong and David Fogel, for the Defendant
HEARD: September 10, 2014
E N D O R S E M E N T
[1] On July 5, 2013, Carl Grellete (the plaintiff) issued a claim against Joanne Smith (the defendant) for $300,000, alleging unjust enrichment arising from his renovations of her properties. He paints a picture of a long-term family unit with the defendant, wherein they resided as a couple with their children. He swears they cohabited for 34 years as a family raising two children from other relationships.
[2] However in his criminal trial on August 30, 2013, after which he was convicted of criminal harassment of the defendant, he testified, also under oath, that he, “Didn’t divorce [his] wife because I love my wife. I wanted to stay with my wife. Like I said, it was just an open relationship, and we [i.e. he and the defendant Joanne Smith] were just having sex against, that’s all.” In what is a glaring omission in his affidavit evidence filed on this motion he never even mentions he has a wife. It is a logical inference that this omission was deliberate as the fact undermines and weakens his claim.
[3] The defendant, who moves for summary judgment to dismiss the claim, has provided thoroughly documented and cogent evidence to refute the plaintiff’s claim. Her evidence regarding their relationship is consistent with what the plaintiff said in his trial, namely, that it was a casual on and off relationship. His own statement at his criminal trial and the defendant’s evidence filed on this motion clearly negate his claims of a spousal cohabitation with the defendant. Following that trial, in which both parties gave evidence under the court’s scrutiny about their relationship in the Ontario Court of Justice (OCJ) in Toronto, the Justice on September 18, 2013 stated she “totally reject[ed] any notion that Mr. Grellete and Ms. Smith resided together at 4 Glencairn Avenue in 2012, or any time before that.”
[4] Joanne Smith, the defendant, married her former husband in 1972. She lived with him until 1984 when they were divorced. They have a son together who was born in 1977. In about 1988 Ms. Smith and the plaintiff rekindled what had been a romantic relationship in high school. Mr. Grellete was struggling with addiction issues and in 1988 stayed off and on with the defendant in her home for a period of less than six months. Between 1988 and 2005 the plaintiff also stayed with the defendant from time to time. He never contributed to household expenses, down payment, or to carrying costs such as mortgage payments in respect of any of her properties. He did renovations from time to time in return for room and board. The defendant bought all the materials for repairs and renovations and also paid some of his bills in compensation when he did some work.
[5] The property the defendant owned during this period at 45 Craighurst in Toronto was sold in 2007. In 2005 she bought, and paid for, an investment property at 900 Avenue Road. It had tenants and she lived there from 2007 until 2008 when it was sold with a closing in 2009. Ms. Smith paid all the carrying costs on that property as well.
[6] During much of this period Mr. Grellete was struggling with mental health and addiction issues. He led a transient lifestyle moving from place to place. If and when he stayed with the defendant on occasion in either of these two properties, they never shared finances, he did not pay the bills, nor was there any agreement about a joint investment or sharing of proceeds when the properties were sold.
[7] There is voluminous documentation filed by the defendant as evidence in proof of these facts, including lawyers’ reporting letters, property tax and utility bills and proof of payment from the defendant. Although the plaintiff alleges in his affidavit that he and the defendant purchased these properties together and that he contributed “equally” to mortgage and household expenses, there is not a shred of evidence to support those statements. All the documentation filed supports the defendant’s position that she and she alone paid for these properties, the expenses and carrying costs.
[8] In late 2008 the defendant bought a property at 4 Glencairn in Toronto, which closed in March 2009. She lived there until she sold the property in 2013. Again she was the sole owner and paid all of the bills and carrying costs. The plaintiff did not live at the Glencairn property. From 2010 to about 2013 he leased an apartment, the rent for which was paid from his Ontario Disability Support Program payments (ODSP).
[9] The defendant sold the Glencairn property in 2013 due to what she describes as “a fear for [her] safety as a result of the threatening and abusive behaviour” of Mr. Grellete towards her. The Justice in the above-referenced OCJ decision described what appeared by the plaintiff’s conduct in the courtroom to be his “unhealthy and unnatural obsession” with the defendant as “chilling”. The court convicted the plaintiff of criminal harassment of Ms. Smith in September 2013, and he was sentenced to 11 months in jail.
[10] It is submitted by Ms. Smith that the claim by the plaintiff in the case at bar, which was commenced on July 5, 2013, is a furtherance of his harassment of her and in retaliation of her reporting his threatening conduct to the police. Certainly his ex parte motion and registration of a certificate of pending litigation (CPL) against her property served to complicate the closing of the Glencairn property sale scheduled for July 2013. The closing was achieved only after Ms. Smith agreed to pay $300,000 of her proceeds into the solicitor’s trust account to have the CPL removed.
[11] The defendant brought a counter-claim in this action on July 25, 2013, claiming damages for slander of title arising from the plaintiff’s registration of the CPL against her property, which he obtained ex parte on incomplete and misleading information. The plaintiff did not defend the counterclaim and he has been noted in default. The plaintiff has indicated an intention to move to set aside the noting in default.
Legal Analysis
[12] On a summary judgment motion pursuant to section 20.04(2)(a) the court may grant judgment when there is “no genuine issue requiring a trial”. The court is also given discretionary fact-finding powers pursuant to Rule 20.04(2.1), “unless it is in the interest of justice for such powers to be exercised only at a trial”.
[13] Those powers include:
Weighing the evidence.
Evaluating the credibility of a deponent, and
Drawing any reasonable inference from the evidence.
[14] In paragraphs 2 and 3 of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Justice Karakatsanis for the Supreme Court describes the summary judgment procedure as an opportunity to achieve a “balance between procedure and access [to justice]”, in “recognition that a culture shift is required in order to create an environment promoting timely and affordable access to civil justice.” She states at paragraphs 4 and 5:
[4] … In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
[5] To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.
[15] In Hryniak the court, at paragraph 66, refined the summary judgment process indicating that a judge should first determine if there is a genuine issue requiring trial based on the evidence without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, then the judge should determine if the need for a trial can be avoided by using the new powers under Rule 20.04(2.1) and (2.2).
[16] As the first step, the record before me leads to the conclusion that there is no genuine issue requiring a trial. The above findings of fact are based on evidence that is effectively uncontradicted. The plaintiff’s bald statements in his affidavit alleging a lengthy period of cohabitation, equal contributions to mortgage and expenses related to the defendant’s properties and renovations he did are not supported in any of the evidence on this motion.
[17] The evidence the plaintiff provides, other than those unsupported statements, is a series of photographs depicting the parties together, some with their children. None of these photos prove any continued or long term cohabitation as he suggests. Additionally the plaintiff has filed copies of miscellaneous items, namely, an envelope from the Ministry of Community and Social Services addressed to him at the Avenue Road property, an Aviva automobile insurance certificate for 2009 showing the Avenue Road address, an undated hospital ID card showing the Craighurst address and a lab test receipt dated February 2011 showing the Avenue Road address, despite that property having been sold in 2009. None of these documents establish any contributions on the part of the plaintiff towards the defendant’s properties.
[18] The copies of the parcel register filed by the plaintiff support the facts deposed by the defendant regarding her sole ownership and financing of these properties. The affidavit he filed from his friend provides no reliable evidence. Information the affiant knows merely refers to casual social gatherings at which the parties were together. Otherwise this affiant deposes to his “impression”, being “lead to believe”, and being “informed” by an unnamed source of various facts about the parties. There is nothing in that affidavit that supports the plaintiff’s claims about his contributions, other than hearsay statements which mimic the plaintiff’s own unsupported version of the facts. The email the plaintiff filed and claims was from his son, Carl Jr., does not show it as coming from his son. The statement in the email is not sworn. It contains allegations about helping the plaintiff renovate and being a guest in the home. It reiterates the plaintiff’s statements about profits earned by the defendant when the homes were sold. None of these statements would support the plaintiff’s claim of contributions. In any event, no weight can be given to such an email from an unknown source that is unsworn.
[19] Even if this court could decide there was a genuine issue requiring a trial, which it does not, the defendant is entitled to summary judgment dismissing the claim using the powers of Rule 20.04(2.1). The weight of the evidence overwhelmingly supports the defendant. This court is entitled to assume the plaintiff’s inadequate evidence opposing the summary judgment is his “best foot forward.” The plaintiff’s credibility is seriously undermined by his failure to disclose material facts and the inconsistency of his sworn testimony in court, as compared to his sworn statements on this motion, regarding his relationship with the defendant as described above.
[20] There is no evidence of any discussion regarding an agreement of shared ownership or any earlier claims from the plaintiff for a share of the defendant’s properties until after she went to the police about his threatening behaviour. A reasonable inference to be drawn from these circumstances is that the plaintiff commenced this action against her in retaliation, just as the defendant believes.
[21] The defendant has not been unjustly enriched. The plaintiff has not shown any benefit conferred by him to her in relation to her properties, nor any deprivation suffered by him. He was handsomely compensated by the defendant for the minor renovations and maintenance by the provision of free room and board from time to time, as well as the defendant’s payment of his bills, such as his auto insurance. On the evidence it was he who benefited from his association with the defendant, as a result of her generosity in helping him get through his struggles with mental health and addiction issues from time to time.
[22] In the result,
(a) The motion for summary judgment is granted in favour of the defendant dismissing the action against the defendant Joanne Smith.
(b) It is ordered that the sum of $300,000 plus any accrued interest, currently held in the trust account of Kenneth Picov of Picov and Kleinburg, be paid to the defendant Joanne Smith.
[23] As the defendant is entirely successful on this motion she is entitled to costs. If the parties are unable to agree on a disposition of costs, submissions may be delivered in writing, including the outline of costs, by no later than September 26, 2014 for the defendant and October 6, 2014 for the plaintiff.
Seppi J.
DATE: September 16, 2014