ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV 12-203 SR

DATE: 2015July6

BETWEEN:

Wayne Clare VanEvery

Plaintiff

– and –

Caroline Mary VanEvery-Albert and Seth James LeFort

Defendants

Howard Staats, for the Plaintiff

Alan Giles, for the Defendants

HEARD: February 23, 25, 27, May 11, 12 and 14, 2015

The Honourable Justice Harper

Issues

[1] The Plaintiff (Wayne) seeks an order for damages for breach of an agreement he claims he had with the Defendants (Caroline and Seth) for the return of certain chattels owned by him. In addition, he seeks damages for conversion relating to the same chattels.

[2] Caroline and Seth seek damages for harassment and mental distress caused by Wayne. In addition they seek an order requiring Wayne to transfer certain property to them upon their completion of payments pursuant to an agreement of the parties.

Background

[3] Wayne is the titled owner to certain lands and premises located at 917 Second Line Six Nations Grand River Reserve. This property consists of approximately 46 acres of land, a house and a storage barn approximately 150 feet by 60 feet.

[4] Although they were not actually niece and uncle, the extended family represented that they were niece and uncle and Caroline believed that Wayne was her uncle. Caroline and Seth are husband and wife. Caroline has native status and is a member of Six Nations. Seth also has native status; however, he is a member of the Mohawk, Bay of Quinte.

The Land and Chattels Agreement of Purchase and Sale

[5] Caroline, Seth and Wayne entered into an agreement with Wayne for them to purchase the subject lands on May 15, 2010. This agreement is titled “Land and Chattels Agreement”.

[6] According to Wayne, he learned that Caroline and Seth were looking to buy a house. He told them, in the early part of February of 2010 that they should buy his place. He told them he would sell it to them for $250,000. Caroline and Seth told Wayne they would think about. In May 2010, after Caroline had returned from a vacation, she told Wayne they would purchase his property for $250,000. She told him that all they could come up with was $12,500 as a down payment. The balance would be paid by a mortgage back to Wayne. Wayne told Caroline to go and draw up the papers. Caroline, Seth and Wayne talked about the purchase price in front of Caroline’s mother and grandmother. At that time, Wayne told them he would sell it to them and that the price was $250,000. He stated he would leave with “just his underwear and guns”.

[7] Caroline obtained some precedent documents, from Toni Martin who worked at the land claims office. These documents were apparently examples of documents that had already been approved and registered by the Native Land Titles Office at Six Nations Grand River. She then put together a document by cutting and pasting from the precedents she had been given and included the terms of purchase that had been discussed.

[8] According to Seth and Caroline the essence of the deal was that they would purchase the land, house and storage barn. There were certain chattels that were listed in the agreement as part of a schedule. Those chattels were to be the property of Wayne, however, a clause was also put in the agreement that once the down payment was paid to Wayne any chattels that remained on the property were to be the property of Caroline and Seth. The agreement also provided that the down payment was $12,500. The balance of the purchase price was to be paid over a five year period at the interest rate of 4.5% per annum. An amortization schedule was attached to the agreement. The agreement also allowed Seth and Caroline the option of paying an additional $25,000 annually. At the end of the five year term, Seth and Caroline were to pay the balance of whatever was owing to Wayne. Once the balance owing was paid, Wayne would transfer the title to the property to Seth and Caroline.

Preparation of and Signing of the Agreement

[9] According to Caroline, Wayne met her and Seth at Caroline’s mother’s house. The document was given to Wayne. He reviewed it and he made the only notations on the document. Both Caroline and Seth testified that they were concerned that Wayne would not provide a specific list of the chattels that he wanted from the barn. As a result, they put a clause in the agreement that provided for ownership of all chattels to be the property of the purchasers once the down payment had been paid.

[10] Wayne testified that he did not sign the agreement initially. He stated that he took the agreement to a lawyer, Wendy Newton. After reviewing the document with Ms. Newton, Wayne went with Caroline and Seth to the Six Nations office and signed the agreement in front of Toni Martin who also notarized the document. Wayne stated the document was signed on May 17, 2010. Wayne initially told them that he would move out on June 1, 2010 as he needed some time to get his belongings.

[11] Wayne did not move out by June 1, 2010. Caroline and Seth did not want to start an argument amongst Caroline’s family so they permitted Wayne to take things out slowly. They thought he was going to take out things like his bedroom furniture and things like that. Wayne had other ideas. He continually attended on the premises and was taking many items off the property. Caroline and Seth got into an argument about that. It all came to a head on June 15, 2010 when Seth noticed that a cement mixer was now gone and other larger items.

[12] Wayne testified that he used to operate a “trash and treasure” out his barn. After he moved he wanted to start up another business. He got his own garage and a storage unit and continued to attend at his property and take things out of the house and the barn.

[13] By June 15, 2010, Wayne stated that he attended at the property and Caroline and Seth told him that he could not take anything more off the property. They stated that they owned everything on the property once they paid the down payment. Wayne replied “you beat me, you done me dirt”. Caroline and Seth stated that he had been continuously attending on the property and taking things and the two of them were getting into arguments over Wayne doing this. They finally stood up to Wayne on June 15, 2010 when they insisted that he could no longer take any more items.

[14] Wayne testified that he asked Caroline and Seth “what will it take to get my stuff?” According to Wayne they told him that he would have to forgive all the mortgage interest in the agreement. They then went in their house and Caroline did a calculation from one of the amortization schedules in order to see what the mortgage interest would total. The amount came to $36,698.00. Caroline then wrote up a receipt and brought that receipt outside to Wayne. Wayne signed the receipt and told them then “we are all cool now”.

[15] Caroline and Seth had a different version of what happened with respect to the chattels. They both testified that the forgiveness of the interest was for all the items that Wayne had already taken from the barn on their property from the date of the agreement. They stated that they would not have sold him all of the contents in the barn. Seth testified that he felt that the total purchase price of $250,000 was a good value because of all of the items that could be sold from the barn. He stated that the sale of those items would make up for the massive cleanup and renovations they had to do as the house was in such a state of disrepair. They had already undertaken a lot of the renovations from the date of purchase.

[16] None of the parties realized that the mortgage interest calculation that Caroline did on May 15, 2010 was not accurate as it did not take into consideration that the interest should have been a lot higher. The figure they chose was the interest that would have owed if the parties exercised their option to make the extra $25,000 payment on the mortgage annually. They have never made such a payment.

[17] On June 16, 2010 Caroline and Seth were not at home. Ronald Cook, a friend of Seth’s, who was also their hired hand helping with work on the farm, was at the barn that day. While he was cleaning up garbage on the farm over the 2 weeks prior to June 16, 2010, he had seen Wayne attend the property and remove things on more than one occasion. He stated that, on June 16, 2010, Wayne had 2 trailers and he loaded machinery and carpentry tools on the trailers. He had other people helping him who had a truck and a trailer. Ronald sent a text to Seth and told him what was happening. Seth told him that he would deal with it. Ronald also stated that he had seen Wayne on the premises a number of times with 4 other guys. According to Ronald they were removing things from the premises each time.

Ruling with respect to the Terms of the Agreement dated May 15, 2010

[18] I find that the parties were clear on what the deal was when it was originally signed on or about May 17, 2010. The clause that stated “once the down payment was paid all chattels are the property of the purchasers” was clear and unambiguous. Wayne read the document, he made notations on the document and he took the document to a lawyer. I do not believe him when he states that he simply did not see that clause. This is not small print or a hard to see clause. It is plain and it is obvious. I find that Caroline and Seth were the owners of all the chattels on the property once the down payment of $12,500 was paid by them. That was paid no later than May 17, 2010.

Amendment to the Agreement June 15, 2010

[19] Seth and Caroline confronted Wayne on June 15, 2010 and insisted that the contract was clear in stating that, after the payment of the down payment of $12,500, they owned all of the chattels on the property. Wayne agreed with their assertion when he stated “ok you beat me, you did me dirt.” What followed was an attempt at amending the contract to allow for Wayne to have some of the chattels. That attempt to amend the contract however, was not successful. I find that the parties did not arrive at a consensus ad idem relative to the amendment they tried to achieve. Wayne asserted that he was waiving the interest in order to get all of the chattels that he had already removed and the chattels that remained in the barn. Caroline and Seth stated that the waiver of the interest, as evidenced by the $36,000 receipt that Wayne had signed, was to compensate them for the chattels that Wayne had already taken.

[20] The parties did not set out in writing a clear representation of what the waiver of the interest was to compensate for. I find that the parties were never of the same mind with respect to that issue and, therefore, an essential element of a contract is missing. I find that the original contract must prevail and, as result, Caroline and Seth owned all of the chattels when they paid the down payment. I find that Wayne is not entitled to any chattels that remained on the property. I also find that Caroline and Seth are not entitled to any interest waiver.

[21] As a result of my findings, once Caroline and Seth make all of the payments under the mortgage including the balance owing at the end of the term, Wayne must sign over a transfer to the subject property. The mortgage term was up at the end of May. I ordered that, pending the release of my reasons, Caroline and Seth were to continue to make the monthly payments of principle and interest. Wayne was not to take any action on the mortgage. Given my decision, the balance owing shall take into consideration what would have owed at the end of May 2015 and the payments made subsequent to the end of May.

Damages for Harassment and Mental Distress

[22] Caroline and Seth claim that after they told Wayne, on June 16, 2015, that he could not come on to their property anymore and take any more chattels, Wayne embarked upon a course of conduct of intimidation, harassment and bullying. They assert that Wayne’s conduct from June 2010 until this trial caused them mental distress an inability to pursue their careers and they also claim that the stress contributed to the breakdown of their marriage.

[23] According to Caroline and Seth, Wayne continued to enter their premises. On a number of occasions, he attended at their home and claimed that they were not abiding by the terms of the mortgage. He claimed that he had a document that stated that they allowed the insurance to lapse. He attended on more than one occasion with such a document. The actual document stated that the insurance was terminated as premium payments had not been received by a certain date. However, if payment had been sent, then the insurance was still in effect. Wayne never contacted the insurance company to verify whether the insurance was indeed cancelled. Caroline and Seth both testified the insurance was never cancelled and they provided documentation from the insurance company to that effect.

[24] On another occasion, Wayne claimed that he had a document from the insurance company claiming the premiums had not been paid. This was a result of the premium notice going to the wrong address. This was corrected and the insurance was always in place. Despite their assurances, Wayne insisted that they were in default of the mortgage and he wanted them evicted.

[25] On another occasion, Wayne attended on the subject property very angry. According to Seth, he was yelling at him and told them that he received a document from Indian Affairs that stated that they would not accept their land and chattels document for registration. Wayne insisted that the deal they had was no longer valid. He wanted them to vacate the property. Caroline and Seth refused and insisted the deal was still good. They stated they would not move and they continued to pay in accordance with the agreement.

[26] Seth testified that Wayne’s intimidating behavior started to escalate even further over the summer and fall of 2010. According to Seth, Wayne started to talk about houses being burnt down in the area. When he asked Wayne if he was threatening to burn their house down, Wayne simply replied that he wanted cash and left. Wayne also wanted Caroline and Seth to sign a new document that he presented to them. This document was more like a rental agreement. Caroline and Seth refused to sign any new document. When Wayne left he told them we do not have a deal and he wanted them out of the property.

[27] On another occasion, Seth stated that Wayne attended at the property with the Six Nations Police. He told them they had not paid the mortgage and he wanted them evicted. Seth showed the police proof of payments of the mortgage. The police would not act on Wayne’s request to have Caroline and Seth evicted. Seth testified that it was on this occasion that Wayne killed the children’s cat by running over the cat with his vehicle.

[28] On February 28, 2011 Wayne gave a letter to Caroline. The letter stated: “pay me $231,689.88 or move out by May 1, 2011.” Seth stated that when he saw the letter he was terrified. He stated that he had his life savings tied up in that house. Caroline and Seth had already completed substantial renovations just to get the house in livable condition.

[29] In January of 2012, Seth and Caroline received a letter dated December 22, 2011 from the Six Nations Band Council. This letter was notice of eviction to Seth. The letter gave 15 days to leave the premises. By the time Seth was given the letter, the 15 days was already up. Seth testified that he understood that the band had voted to enforce a by-law that they had passed. This by-law stated that if you were not a Six Nation Band member you could not live on that reserve. Seth went to confront the person who signed the letter. Seth stated that the person who signed the letter had a wife who was also not a band member and they lived on the reservation. Wayne denied that he was the one who filed the complaint about Seth living on the reservation. He stated that he did sign the petition that was initiated by someone else. I find that his signature on this petition to have Seth removed, when taken with all other acts as set out above initiated by Wayne, is evidence of his constant and continued harassment of Seth and Caroline. He should not have signed a petition to have someone, whom he sold the property to, removed from the very same property he sold to him.

[30] An incident that I find to be further evidence of Wayne’s harassment and bullying is a message that appeared on Facebook that was directed to his son. It stated in part: “by the end of the summer you will have the property”. I find this evidence goes far to connect all other incidents of concerning conduct on the part of Wayne that clarifies his sole purpose of getting Caroline and Seth out of this property.

[31] Seth’s emotional testimony had both a ring of truth and clearly demonstrated the guttural pain he had been experiencing. He stated that he could not believe that the man who sold him his property was now trying to run him out of the community. Seth contacted his Mohawk band members and they wrote a letter to the Six Nations Band Council telling them to back down. The letter went further to inform the Six Nations Council that Seth and Caroline’s house was “under their protection” and they would not allow them to be removed from their premises.

[32] With all of this going on, Seth stated that he felt trapped and was living in fear. Seth went on a school trip with his daughter in May 2011. While he was away he got a further letter from Wayne’s lawyer. This letter also confirmed that Wayne wanted Seth and Caroline off of the property. Caroline and Seth secured a mortgage to attempt to pay Wayne off and Wayne refused to accept it.

[33] Seth stated under the situation they were living in for more than a year, the stress and anxiety endured by him and his wife was intolerable. It put a strain on their marriage. Both Seth and Caroline were fearful of Wayne. They purchased guard dogs at a cost in excess of $28,000. Both of their health was impacted. They would not complete the home renovations as they feared they would be evicted. Caroline delayed completing her PhD. She stated that she was not able to concentrate due to the stress. Seth wanted to start up a business and he was not able to do so as he did not know if he would be evicted

[34] Seth testified that the stress caused him to be diagnosed with Bell’s palsy. Part of his face was numb to the point of partial and temporary paralysis. Seth testified that he had been diagnosed with Bi-Polar disorder. He stated that, as a result of all of the fear and anxiety caused by Wayne’s conduct, he was living under constant fear of a major depression. His hair started to fall out all over his body. Much of it has grown back in but not on his face. He stated that he hides the balled parts with his long hair from his head.

[35] Seth stated that he is not able to trust anyone. He felt that everyone in his wife’s family was out to take what they could from him. He and his wife separated and he now wants to go back to live at his family home in Taendaga with his children.

[36] Caroline stated that she had to take a leave of absence from her work due to her anxiety. She received counselling. Her counselor, Louar Dowler, testified. She stated that she had been seeing Caroline from April 2013. Caroline had been referred to her by Caroline’s family doctor. She presented to her as suffering from anxiety and panic attacks. The main contributing factor to this was the circumstances surrounding these proceedings. Ms. Dowler testified that Caroline did have other stressors in her life, such as work, the children and marital issues. However, it was her opinion that those stressors would have been easier to handle if it had not been for the stress created by her uncle Wayne and these proceedings.

[37] Ms. Dowler testified that Caroline had a number of symptoms that included:

a. Numbness and tingling in her extremities,

b. Fear of the worse happening,

c. Her fear caused her heart to pound and a feeling of choking and shaking,

d. She had difficulty breathing at times and suffered from sleep disorder; and

e. She often felt faint and light headed and would break out into hot and cold sweats from time to time.

[38] Ms. Dowler felt that the anxiety and related symptoms were something that Caroline cannot escape while living in this state of uncertainty and fear. It goes to the core of her anxiety and is constant.

[39] I find that both Seth and Caroline were credible and did not fabricate or embellish their fears, anxieties and their distress. I find that the core of their symptoms were as a result of the constant harassment and bullying by Wayne. Both Caroline and Seth are entitled to damages as a result of such egregious conduct on the part of Wayne. In my view his conduct is so shocking that it is deserving of punishment and therefore punitive damage are warranted.

[40] Wayne shall pay general damages to Caroline and Seth in the amount of $100,000.

[41] Wayne shall pay punitive damages to Caroline and Seth in the amount of $75,000.

[42] I decline to order compensation to Caroline and Seth for the purchase and other costs of the guard dogs. I find that such an expense is not reasonable under the circumstances. Other far less expenditures for protection such as monitored alarms would have be far less expensive and would have provided sufficient security under the circumstances.

[43] I am not able to award an amount for loss of income to either Caroline or Seth. The evidence of such loss is simply not sufficiently detailed for me to make findings on the balance of probabilities. The delay in Seth’s ability to start a job and Caroline’s delay in being able to finish her Doctorate and continue with her career path resulted in the stress and anxiety for which they are compensated for in the general damage heading.

Costs

[44] If counsel are unable to resolve the issue of costs, they may address same in written submissions within 30 days of the release of these reasons. No submission may exceed three pages, exclusive of a bill of costs and outline.

Harper, J.

Released: July 6, 2015

COURT FILE NO.: CV 12-203 SR

DATE: 2015July6

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN: