(CHATHAM) COURT FILE NO.: 5992/14 DATE: 20160705 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian Raymond Chute Applicant, Responding Party – and – Gary Lewis Pryor Respondent, Moving Party
Jeffrey Aitkens, for the Applicant, Respondent Party Larry M. Najjar, for the Respondent, Moving Party
HEARD: June 14, 2016
CAREY J.
OVERVIEW
[1] The parties here were friends who decided to go into a business investment together. They purchased two properties in the tiny hamlet of Grande Pointe. One property was a restaurant and the other a former church hall converted into a music venue. The initial investment in the properties was approximately $100,000. The business relationship soured, with Brian Raymond Chute ("Chute") bringing an application for partition and sale of the two jointly owned properties in late 2014.
[2] Subsequently, according to Chute, he sold his residence, apparently a former church in Chatham, to move in with his elderly and ailing mother to a small home also in Chatham. It appears he moved his excess personal property into the hall that he and Gary Lewis Pryor ("Pryor") owned, and took steps to de-register the music hall and prevent any further use of the hall for that purpose.
[3] In March 2015, Pryor brought his own motion seeking, among other orders, removal of Chute's personal property from the hall and authorization to operate the hall as a music hall and entertainment venue and a final disposition of the matters at issue.
[4] The Pryor motion was scheduled to be heard on March 24, 2015, however the matter was adjourned to a special motion date of June 16, 2015 and cross-examinations were set for May 11, 2015. The parties agreed to jointly be responsible for the outstanding property tax bill of $11,856.65. Before that motion could be heard, on consent an order was made on May 26, 2015 prohibiting Chute from residing in or being at either of the Winterline Road properties after 10:00 p.m. or before 7:00 a.m.
[5] By the time June 16, 2015 arrived, Chute and his lawyer, Mr. Rhodes, had parted ways and Chute was self-represented. A transcript of that hearing before Thomas J. was part of the Motion Record before me on Pryor's motion of June 14, 2016. The order of June 16, 2015 was subsequently modified on February 17, 2016 by King J. with Chute now represented by Mr. Aitkens. (Exhibit 'K' – Responding Party's Motion Record).
[6] Both parties have filed updated material for this court. Pryor complains that the fact that the Chute material was filed at the last possible moment should affect the weight given to the denials and responses contained in Chute's affidavit. He maintains that Chute has continued to undermine and ignore the previous court orders and, as a result, seeks compensation and relief from certain of the previous orders.
[7] Chute asserts that he has been in compliance with the orders, made payments as required and has not undermined Pryor. He says the properties have been wasting while the litigation has gone through these several motions. As well, he states that the investment in the property does not justify the expensive legal maneuvering and that the pressing issue is the mortgages are in default and the bank is poised to take possession.
ANALYSIS
[8] The material filed by the moving party respondent is compelling and persuasive. Mr. Pyor's affidavit is supplemented by both Ms. Falco's and Mr. Handsor's affidavit, supporting a conclusion that Chute has consistently interfered with both the operation of the music hall and the restaurant, Jo's Restaurant, both prior and following the orders of Patterson J., Thomas J., and King J. Confirmation of his behaviour found, in his own words in his letter to Betty Tetreault found in Exhibit 'E' of the Motion Record of the Respondent, returnable February 17, 2016. That letter confirms both his unilateral and high handed treatment of elderly clients of the music hall and is revealing of an intimidating, bullying and threatening personality. Mr. and Mrs. Tetreault, apparently both in their 80's, were warned that if they continued with the functions they had apparently contracted with Pryor to run in the hall, "I will expect you will cancel advertising immediately. If not ... you will never play my hall again and that includes February 22nd. This isn't a game, this is my children's inheritance. Get out of my way."
[9] I am satisfied on the material before the court, of the following:
a) Chute attended numerous times at the two properties in violation of the order of Thomas J.;
b) I accept that Ms. Falco declined to renew her lease on Jo's Diner as a result of the pattern of behaviour of harassment and interference by Chute. Given the small community these businesses are part of, it is completely credible that as long as Chute remains associated with that property the securing of a new tenant will be exceedingly difficult if not impossible.
c) Subsequent loss of the income from Jo's Diner to Pryor was income he was relying on to fulfill his obligations of payment under Thomas J.'s order;
d) There has been a consistent pattern of behaviour on the part of Chute that has poisoned the reputation of the joint venture which has been run out of the musical hall building and hobbled any chances that Pryor had of continuing a going concern out of those premises.
e) It is clear from the affidavit material and the pictures provided by Chute himself that the bowling alley material was not part of the business of the music hall nor could it conceivably be part of the music hall operation. Chute's own pictures refute his suggestion that the bowling alley wood was affixed to the floor of the music hall. Its presence is inconsistent with the use of the hall as a music venue;
CONCLUSION
[10] Accordingly, for the reasons set out, an interim order will issue:
a) Releasing the respondent from the undertakings as to damages, given in his affidavit sworn March 11, 2015 and referenced at para. 8 of the order of Thomas J., dated June 16, 2015. The two parties, Pryor and Chute, are to be held jointly responsible for the preservation of the property and the ongoing payment of the expenses, in a timely fashion, directly related to the two properties. Given the proven inability of the two parties to cooperate in any way during this litigation, the expenses will be forwarded to the office of Mr. Najjar who will be responsible for the timely payment of the ongoing invoices and entitled to appropriate compensation to be determined as part of the ongoing litigation.
b) An early trial date should be expedited in the interest of a timely cost effective conclusion to this dispute while there remains any property interest left for the parties to fight over.
c) The issues relating to income losses from the properties should be part of the issues to be determined at trial, along with the storage of the flooring and any indebtedness to Handsor.
[11] Costs of this motion will be reserved to the trial judge.
“original signed and released by Carey J.”
Thomas J. Carey Justice
Released: July 5, 2016
(CHATHAM) COURT FILE NO.: 5992/14 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Brian Raymond Chute Applicant, Responding Party – and – Gary Lewis Pryor Respondent, Moving Party RULING Thomas J. Carey Justice