ONTARIO SUPERIOR COURT OF JUSTICE

CITATION: Graham v. 10 Tecumseh Ave. West Inc., 2016 ONSC 7685

COURT FILE NO.: 1793-16

DATE: 2016/12/09

BETWEEN:

Paul Graham O/A Alpine Engineering Applicant

– and –

10 Tecumseh Ave. West Inc. Respondent

Self-represented

Todd W. Devitt, for the Respondent

HEARD: November 21, 2016

COURT FILE NO.: 2325/16

DATE: 2016/12/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

10 Tecumseh Ave. West Inc. Applicant

– and –

Paul Graham O/A Alpine Engineering Respondent

Todd W. Devitt, for the Applicant

Self-represented

HEARD: November 21, 2016

GEORGE J.

NATURE OF APPLICATIONS

[1] There are two applications before me. The first in time was commenced by Paul Graham O/A Alpine Engineering (“Graham”) and involves the common law tort of conversion. Graham seeks damages, alleging Tecumseh has deprived him of his property. Tecumseh contends the property in question had been abandoned.

[2] The second application was commenced by Tecumseh. It seeks a declaration that Graham is a vexatious litigant, and an order that he not commence any further proceedings in any court, except with leave.

[3] I will address first Graham’s application.

GRAHAM APPLICATION (TORT OF CONVERSION)

[4] Pursuant to the terms of a lease, Graham was the commercial tenant of unit #6 at 10 Tecumseh Avenue West, London, Ontario (“premises”). On March 19, 2015 the tenancy was terminated. Graham was provided five days advance notice of an impending change of locks and was instructed to remove his assets from the premises. He did not do so.

[5] This was a two year lease. As consideration Graham was to pay monthly rent in the amount of $2,150. Graham defaulted in March 2014 never bringing himself into compliance. This is what prompted the termination.

[6] On a motion first returnable March 24, 2015 Leitch J. granted an interim interlocutory injunction restraining Tecumseh from evicting Graham. This was extended by Mitchell J. pending hearing of an application. Graham brought an application which was essentially a request for relief from forfeiture. He sought an order enforcing a verbal agreement between him and Tecumseh alleging it had agreed to defer payment of rent until he received payment from a third party. Miller J. dismissed this application dissolving the injunction.

[7] Graham appealed the decision which was ultimately dismissed. Graham also sought a stay, which too was dismissed. Respecting the stay decision, Mitchell J., in an attempt to assist the parties in resolving all outstanding issues, directed the parties to negotiate in good faith. These negotiations were unsuccessful.

[8] On the stay motion, Graham was to pay one month’s rent to Tecumseh, in order to gain access to the premises and remove his items. He failed to pay the rent and made no attempt to remove his property. Further opportunities were provided to Graham to retrieve his property, to no avail. He was advised by Tecumseh that the property would be considered abandoned if it was not removed.

[9] Graham brought yet another motion, seeking to set aside the denial of a stay. This was dismissed.

[10] Tecumseh brought a cross-motion seeking a declaration that Graham had abandoned his property, and for permission to deal with those assets. The relief was not granted as this is properly a defence to Graham’s conversion allegation.

Evidence

[11] Tecumseh’s evidence consists of an affidavit from Tony Moonen. He is a shareholder, director and officer of Tecumseh. He deposes that Graham has never attempted to retrieve his property. He advises that, despite the court’s direction that Graham pay some rent before retrieval, he had offered to release the property at no cost, should he just attend and get it. Graham refused.

[12] Mr. Moonen further deposes that the premises have not been rented for over a year because of the presence of Graham’s property. It has recently been removed and arranged for auction, but has not yet been sold.

[13] Graham has filed, and relies upon, two affidavits. He appears to be fixated on issues that have already been litigated in the first application, and subsequently on the various attempts to have it reviewed. His explanation for leaving the property at the premises is that the conditions attached to the offers to retrieve it have been unacceptable. He contends Tecumseh is indebted to him, which is a continuation of his complaint and assertion that he was not obliged to pay rent, which Miller J. has already addressed. He goes on at length respecting the value of the items he says were converted.

[14] He further claims that Tecumseh is responsible for damages to and the loss of property resulting from a break and enter at the premises.

Issues

[15] Has Tecumseh established that Graham abandoned his property? If it has, then he has no further rights in those assets. If he hasn’t, then this application is not the proper forum to determine damages. This application would have to then be converted into an action.

Law & Analysis

[16] Conversion is a strict liability tort which requires proof, on a balance of probabilities that, in this case Tecumseh, wrongly interfered with Graham’s goods. It is no defence to say the interference was done innocently or in good faith. Abandonment, however, is a defence. This requires, in our case Tecumseh, establishing a “giving up, total desertion, and absolute relinquishment” of the private goods once owned by Graham. The burden lies with Tecumseh to prove abandonment. This is a question of fact.

[17] The court of appeal sets out in 1083994 Ontario Inc. v. Kotsopoulos, 2012 ONCA 143 the factors to consider. These include the passage of time; nature of the property; conduct of the owner; and nature of the transaction.

[18] These are unique circumstances. Usually the fact of abandonment is apparent. Not so here. Tecumseh alleges that, while there have been feigned and disingenuous attempts on Graham’s part to retrieve his goods, the plan all along was to not repossess the property in order create a situation where he could claim damages. There has been previous court involvement and orders dealing with both the tenancy termination and removal of the property. He simply refuses to remove it.

[19] I am having difficulty discerning what exactly Graham’s response is to the abandonment defence. Both his primary and supplementary affidavit generally set out how, in his view, the offers to retrieve his items, were not on terms acceptable to him. At other points he provides rambling explanations of the various items’ values. On the other hand Tony Moonen’s affidavit clearly set out his attempts to get those items out of Tecumseh’s custody.

[20] The evidence establishes that Graham has failed to comply with various court orders, and has not complied with costs awards. He has made no meaningful attempts to retrieve his property despite several opportunities to do so. I have little doubt that Graham has no interest in retrieving his goods. He wants money damages for property he does not want, but could have, and has orchestrated a series of events to get to this point.

[21] I accept that Tecumseh warned Graham, in advance, that if he didn’t retrieve his items it would take the position he had been abandoned them. Still nothing.

[22] Graham’s actions have shown a complete disregard for court orders to this point. He won’t retrieve his property, which leads to the inescapable conclusion he has abandoned it. Not only has he abandoned the property, he has done so with a purpose. The only rational explanation for his conduct is he has intentionally left the property behind, forcing Tecumseh to do something with it, thereby enabling him to bring this claim for damages.

Conclusion on Conversion Allegation

[23] The applicant’s claim fails. It is dismissed. I further declare that the property which had been left in the premises has been abandoned and that Graham has no further rights to it.

VEXATIOUS LITIGANT

Tecumseh’s Initial Attempt to Have Main Application Dismissed

[24] At the outset of the conversion application, Tecumseh’s counsel sent a letter to the Court Registrar requesting “that the Application be dismissed, pursuant to rule 2.1.01(1), as it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.” In this letter he set out the history of claims related to Graham’s tenancy.

[25] On September 15, 2016 Grace J. released an endorsement writing this at paras. 2 and 3:

With respect, it should be obvious that this matter is not within the ambit of a rule that applies only if a proceeding “appears on its face to be frivolous or vexatious or otherwise an abuse of process” given the fact counsel’s request was accompanied by two pages of explanation.

If accepted there may well be a basis for other relief but a remedy under rule 2.1.01 is not available. The respondent’s request is denied.

[26] That led to this application, originally returnable October 11, 2016. Tecumseh asks that I declare Graham a vexatious litigant, and restrain him from commencing further proceedings except with leave. The evidence consists of an affidavit from Tecumseh shareholder, director and officer Casey Zebgrets, and a responding affidavit from Graham. This is distinct from the request considered by Grace J. In that case, Tecumseh sought to have the proceeding dismissed on account of it, on its face, being frivolous or vexatious. In this matter, the relief sought is much broader. I am being asked to prevent Graham from commencing any further proceedings, in any court, unless he’s given advance permission.

Law

[27] The relevant statute is the Courts of Justice Act, R.S.O. 1990 c. C.43. Section 140 provides that:

140. (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued, except by leave of a judge of the Superior Court of Justice.

Grounds

[28] The grounds are essentially the litigation history between Tecumseh and Graham. To summarize, Graham had sought relief from forfeiture in what I will call the first application. Miller J. dismissed it. Graham then unsuccessfully appealed. Prior to that appeal’s disposition he brought a motion to stay Miller J.’s decision. This was dismissed. Following the stay dismissal, but before the appeal ended, he brought an unsuccessful motion to set aside the stay decision.

[29] Tecumseh points out that while this was all going on, Graham was involved in a related action where he brought an unsuccessful counterclaim. I am told this was dismissed due to his failure to follow court direction.

[30] Tecumseh says Graham has acted in bad faith, citing his failure to pay costs when ordered, and by characterizing his decision to leave his property at the premises as a ploy to seek damages and harass Tecumseh.

Assessment & Conclusion

[31] The application is dismissed. Graham, while a source of frustration for Tecumseh and at times the court, does not meet the threshold for a vexatious litigant. His claims are not, on its face, illegitimate. Contrary to Tecumseh’s assertions, there have not been multiple hearings to determine the same issue. Regardless of Tecumseh’s views on the merits, and of the court’s ultimate conclusions, there is a distinction between the forfeiture claim before Miller J. and the conversion allegation before me.

[32] It fails for other reasons as well. First, it is not apparent that Graham has commenced applications that could not succeed. Miller J. found there to be no agreement between the parties as to rent deferral, but Graham maintained, and continues to maintain, that there was. If true, and if believed, he would have been entitled to relief.

[33] Similarly, in this case Graham advanced a claim that was not, on its face, doomed. He alleged a conversion which, after a complete review of the evidence, I rejected. But this is the court’s function, and doesn’t necessarily mean it is vexatious or frivolous.

[34] Tecumseh would point to my earlier conclusion that Graham has exhibited bad faith, and purposefully avoided retrieving his property, manipulating the timing of his application so he could seek damages as opposed to the return of goods. While I believe all of this is true, declaring someone a vexatious litigant is an extraordinary remedy, to be granted only in rare circumstances. It is meant as a response to abuses of the litigation system, and we have simply not reached that point.

[35] While Graham’s failure to pay costs is troubling, and while it’s arguable he has blended and rolled issues from one application to the next, and despite the fact I came to a conclusion and made findings consistent with Tecumseh’s position, it simply cannot be said that Graham is a vexatious litigant. At least not yet.

[36] Beyond appealing my decision, it appears that in failing on his forfeiture and conversion applications, he has now hit the end of the road on potential claims related to his tenancy. The point is, despite the tortured history, ill will, and apparent bad faith negotiations, it’s hard to imagine how Graham could roll the issues addressed in my, and Miller J.’s decision, into a third claim.

[37] The bottom line is, while Graham may be misguided, I cannot find he has commenced all of the herein noted actions for purposes other than what he believes are the assertion of his legal rights. While the manner in which he has conducted them, and the timing, is questionable, legitimate issues have been adjudicated.

[38] For whatever reason, and I’ve set out my view and findings on this, he has refused to reclaim his property. Thereafter, and as a distinct claim, he sought damages from the act of conversion. I have dismissed his application accepting the defence of abandonment. As I just indicated, it would appear this is the end for Graham, but I don’t know. I can’t see into the future. If, in the fullness of time, Tecumseh was right in terms of what lies ahead, then the very grounds it relies upon here can be revisited.

[39] At this point, however, I have no choice but to dismiss Tecumseh’s application.

COSTS

[40] Tecumseh has been successful in defending Graham’s claim. This is the main application, and the one for which we have devoted the most time. Tecumseh is entitled to its costs

[41] On the forfeiture application Miller J. ordered Tecumseh be paid costs in the amount of $3,000 inclusive of disbursements and HST. This application is comparable in complexity, and costs should therefore be similarly awarded. I will reduce it recognizing the dismissal of the vexatious litigant claim. This reduction should reflect that the vexatious litigant application was not nearly as complex or time consuming.

[42] In the result I order Graham to pay Tecumseh its costs fixed at $2500 inclusive of disbursements and HST. He shall do so within 45 days.

“Justice J. C. George”

Justice J. C. George

Released: December 9, 2016