CITATION: Reyes v. Esbin, 2016 ONSC 7755
COURT FILE NO.: CV-15-537370
DATE: 2016-12-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALLISON REYES and MEDHANIT YEREKAGEG Plaintiffs
– and –
HARTLEY ESBIN, RHONDA DAWE, TIMOTHY M. DUGGAN, ROSS LYNDON, DAVID ADAMSON, MARIA GALIA, JOHANNE JOHDAN, ESBIN PROPERTY MANAGEMENT, ESBIN REALTY CORPORATION Defendants
No one appearing for the Plaintiffs
Timothy M. Duggan, for the Defendants Hartley Esbin, Rhonda Dawe, Ross Lyndon, David Adamson, Johanne Johdan, Esbin Property Management and Esbin Realty Corporation
No one appearing for the Defendant Maria Galia
Michael E. Freeman, for Althea Reyes
HEARD: December 7, 2016
M.D. FAIETA j.
reasons for decision
INTRODUCTION
[1] The plaintiff Allison Reyes (“Allison”) is a former residential tenant of a property that was managed by the defendant Esbin Property Management (“EPM”) located at 83 Elm Avenue, Toronto (“Unit”).
[2] Allison’s tenancy was terminated on April 9, 2015, by Order of the Landlord and Tenant Board (the “Board”), which found that she had seriously impaired the safety of another person when she “reached into the driver side window and grabbed the superintendent around the throat…” while he was operating a motor vehicle.
[3] Allison’s appeal of the Termination Order to the Divisional Court was dismissed for delay by the Registrar on July 6, 2015. On July 29, 2015, the Court Enforcement Office (Sheriff) provided EPM with vacant possession of the Unit. At that time, Allison’s subtenant who was residing in the Unit without EPM’s approval was evicted. On the following day, arrangements were made to permit Allison and the subtenant to remove their personal property from the Unit. Allison did not attend.
[4] On August 6, 2015, an appeal by Allison to the Divisional Court to set aside the Registrar’s Order was dismissed. The Notice of Appeal filed by Allison stated that her address was 560 Palmerston Avenue, Toronto. As noted in the reasons of Justice Sachs below, that is the address of a public library. In dismissing this appeal, Justice Sachs stated:
In order to succeed on her motion the Appellant must show that she meets the test for setting aside the Registrar’s order dismissing her appeal. The material filed by the Appellant discloses no basis for setting aside the order. For this reason, the Appellant’s request for relief on an urgent basis is dismissed. The Appellant’s actions in bringing this motion are deserving of the sanction of an award of substantial indemnity costs. Apart from anything else, the Appellant complains in her material that she was not provided with any notice of the motion that resulted in the Registrar’s order. What the Appellant failed to disclose is that the address she provided on the Notice of Appeal (where the motion was served) was the address of a public library, which may explain why the Appellant did not receive the motion in question. The Respondent is entitled to its costs, which I fix on a substantial indemnity basis in the amount of $3000.00.
[5] Mr. Duggan advised the court that Allison has not complied with Justice Sachs’ Order to pay costs.
[6] Three applications by Allison to the Board for an order that EPM, amongst other things, “gave a notice of termination in bad faith” and “harassed, obstructed, coerced, threatened or interfered with the Tenant” were heard by the Board on July 30, 2015, and discontinued by the Board on September 4, 2015. A subsequent appeal filed by Allison to the Divisional Court was dismissed by the Registrar on January 29, 2016, for failure to file proof that she had ordered the transcript of the evidence before the Board.
[7] Allison’s personal property was removed from the Unit by EPM on or about August 28, 2015.
[8] On September 28, 2015, this action was commenced. There are three aspects to the claim.
[9] First, the plaintiffs allege that the defendants demanded payment of $2,500 in response to more than 31 requests by the plaintiffs, between August 1, 2015 and September 29, 2015, to recover their personal property from the Unit. The plaintiffs deny that they abandoned their personal property. The plaintiffs allege that their unrecovered personal property includes several antiques, original paintings, jewelry and haute couture clothing and shoes with a total value in excess of $200,000.
[10] Second, the plaintiffs allege that the defendant Joanna Jodhan[^1] swore a false and misleading affidavit of service that was filed with the Divisional Court. They claim that Ms. Jodhan indicated that the plaintiffs had been served with the Motion Record returnable July 6, 2015 when, in fact, she knew that they had not been served given that the plaintiffs did not reside or work at the address listed for them. The plaintiffs also allege that the defendant Timothy M. Duggan misled the Divisional Court by failing to advise the court that the Motion Record sent to the plaintiffs had been returned to his office marked “Return to Sender”. The plaintiffs also allege that the defendant Rhonda Dawe has sworn a number of false affidavits that were filed “with various courts without revealing that…all documents in all court cases would be served by email”.
[11] Third, the plaintiffs allege that the defendant Maria Galia was a subtenant and that she “maliciously gave the apartment keys to the Defendant’s agents; thus depriving the tenant [of] access to her belongings and maliciously assisting and collaborating with the Defendants in the unlawful conversion and disposal of the tenants’ belongings”.
[12] The plaintiffs claim special damages in the amount of $500,000 as the replacement cost of the personal property that was “stolen, converted, disposed of and damaged maliciously” by the defendants. They also make a claim for loss of income resulting from their efforts to regain their personal property from the defendants. In addition, the plaintiffs claim general damages in the amount of $400,000,000.00 and punitive damages in the amount of $400,000.
[13] The defendants deny all of the allegations found in the Statement of Claim.
[14] The action against Mr. Duggan was dismissed by Justice Myers on January 11, 2016, as vexatious pursuant to Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: see Reyes v. Esbin, 2016 ONSC 254. His reasons, at paras. 9, 11 and 12, state:
By fax correspondence dated December 18, 2015, Ms. Sinclair [who sent a letter to the court in response to the notice and endorsement mailed to the plaintiffs] complained that she had not yet received the letter and time was running out for the plaintiffs’ submissions. She might have aided the court’s ability to communicate with her more quickly had she provided an email address or a fax number. Her fax header did not contain a return fax number.…
The submissions delivered by Ms. Sinclair positively establish that the plaintiffs’ claim is indeed frivolous and vexatious as it appears on its face. The submissions are comprised of an edited version of a factum that was filed by the plaintiffs before the Divisional Court. It is apparent from the factum that the claims made by the plaintiffs in this claim were expressly the subject of a Divisional Court hearing. The plaintiffs purported to appear in that Court through an agent but then denied being served with process through the agent. The plaintiffs were not successful with that argument before the Divisional Court for obvious reasons. The plaintiffs advance the same claim in this proceeding.
The plaintiffs had a hearing before the Landlord and Tenant Board. They had a hearing before the registrar of the Divisional Court and then before a single judge of that Court. It is vexatious to continue to make the same arguments in new litigation to which third parties like counsel for the parties opposite are added as parties.
[15] On May 24, 2016, Althea Reyes (“Althea”) commenced an action in the Toronto Small Claims Court against Ms. Dawe. The claim states:
The Defendant has stolen over $25,000.00 of my property which was being stored at a residence. They knew the property belonged to me as they found my passport on the premises but they did not contact me to retrieve my property. They also have refused to allow me to pick up my property in spite of over 10 requests to do so.
I spoke with Rhonda Dawe on May 20, 2016 and she admitted that my property was picked up by a third party and being stored; however she refused to tell me where my property was and she refused to allow me to pick up my property. She also refused my request to return my property stating the property now “belonged to her and was her property[”].
I am prepared to settle this matter by the return of my property; failing which a cash payment for $25,000 must be paid to me.
[16] On June 13, 2016, Ms. Dawe filed a Defence to the Small Claims Court action commenced by Althea stating that Althea had been known to Ms. Dawe as Allison Reyes. Ms. Dawe denies the allegations in Althea’s claim and states that Althea made no effort to retrieve her property from the Unit, nor was she ever refused permission to retrieve her property.
[17] This motion for summary judgment is brought by the remaining defendants other than Maria Galia (“the Esbin Group defendants”). The Motion Record was filed on June 30, 2016, and was to be heard on September 19, 2016. I note that the Esbin Group defendants have no knowledge of the plaintiff Medhanit Yerekageg nor has he or she appeared at any proceeding related to the Unit.
[18] The plaintiffs did not attend the hearing of the motion on September 19, 2016. However, Althea attended the hearing. That same day, the motion for summary judgment was adjourned.
[19] A motion by Althea for leave to intervene in this action was heard on October 13, 2016. Althea was represented by counsel. Justice Pollak adjourned the motion at the request of Althea’s counsel given that he had only been recently retained. The matter was spoken to again at Civil Practice Court on November 1, 2016. Justice D. Wilson ordered that the motion for intervenor status also be heard on December 7, 2016.
[20] Consequently, the Small Claims Action was stayed on November 8, 2016. Althea was represented by Michael Freeman. The Court stated:
Parties attended today. There is a similar action based upon substantially the same cause of action in the Ontario Superior Court in Toronto, CV-15-537370. Given the duplication of proceedings it is appropriate that this action SC-16-5572 be stayed. This is without prejudice to either party seeking to bring a motion to continue the matter.
To do so the plaintiff would be required to satisfy a motions judge that:
The Superior Court action had been dismissed or discontinued
The Small Claims Court has jurisdiction and not the Landlord and Tenant Board
That the plaintiff is not a vexatious litigant and accordingly she has obtained leave of the court to continue this action given the previous order of Justice Kershman dated June 9 and 10, 2009 requiring that this plaintiff obtain leave prior to commencing or continuing any proceeding.
[21] The Order of Justice Kershman of the Superior Court of Justice, Family Court Branch in Ottawa, dated June 9, 2009 and June 10, 2009, referenced above, states:
THE COURT ORDERS THAT … [t]he Applicant, Althea Reyes, is a vexatious litigant and that she not be permitted to commence or continue any proceedings in any court directly or indirectly relating to the child, [name omitted], without having first obtained leave from the Ontario Superior Court of Ottawa pursuant to section 140(1)(c) and 140(1)(d) of the Courts of Justice Act.
[22] For the reasons described below, I have granted the Esbin Group defendants’ motion for summary judgment.
ANALYSIS
[23] The motions for leave to intervene and for summary judgment were heard together. Althea and her counsel provided submissions on both motions – specifically, on the issues of her request to intervene as an added party in this action, service of the motion for summary judgment on the plaintiffs, and whether the motion for summary judgment should be granted. Further, Althea sought an adjournment of the hearing of the motions because she stated that she had not received a copy of the motion materials filed by the Esbin Group defendants. I dismissed this request for an adjournment. A copy of the materials which Althea claims not to have received was copied and provided to her.
SHOULD ALTHEA BE GRANTED LEAVE TO INTERVENE AS AN ADDED PARTY TO THIS ACTION?
[24] Rule 13.01 of the Rules of Civil Procedure states:
(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding….
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
[25] Althea’s affidavit, sworn September 20, 2016, in support of her motion for intervenor status states:
I Althea Reyes of the City of Toronto MAKE OATH AND SWEAR:
I was an approved sublet tenant at 83 Elm Avenue apartment 207 for a few months.
During this time I entered a storage agreement with the tenant as she travelled a great deal for her job and was rarely at the apartment.
I did not stay very ling [sic] at the apartment because I resumed living with my boyfriend; however we entered a storage agreement whereby all of my belongings remained in the apartment.
The landlord was informed of this storage agreement.
In July 2015 my agent tried to gain access to the building to retrieve my belongings and the locks to the apartment had been changed.
When my agent regained access to the apartment building, several items were missing and the locks to the second large room had been changed so I could not retrieve any of my personal items from the apartment.
In August or September 2015 the Defendants proved that they knew the proposed Intervenor Althea Reyes was a subtenant as they found my passport in the locked second room of the rented apartment and provided it to the police.
The Defendant have [sic] made no efforts to provide copies of any court documents or serve me, the proposed Intervenor.
The Defendants had and have knowledge of the proposed Intervenor’s address and also are aware that the belongings in the apartment belong to her and they have documents disclosing this and discussions were had with Rhonda Dawe, the property manager.
Over $100,000 of my personal belongings, my identification, my children’s baby pictures, my photo albums, my sentimental items, irreplaceable momentos [sic] have been converted by the Defendants.
I, The proposed Intervenor tried to remove my belongings in July 2015 but the lock on the room containing her personal belongings had been changed.
Several attempts have been made to retrieve her belongings from the Defendant.
[26] At the hearing of this motion, Althea delivered a further affidavit, sworn December 6 (year omitted in original), to the Esbin Group defendants, which is reproduced below:
I Althea Reyes make oath and swear
I am requesting that the Defendant’s motion for Dismissal of the action be dismissed or adjourned until after the criminal law trial on January 224, 2016 and January 25, 2016.
I am, making this request for the following reasons:
DOCUMENTS
The documents providef tyo the police by Esbin Property Management have an actual Allison Reyesd with a birthdate in August and a year several years after my birthdate.
The copies of the identification and information on the Application to Lease and the actual coincide with the identification of an Allison Reyes.
UNETHICAL USE OF THE MEDIA
Three (3) days after the Honorable Justice Caldwell Baum’s order, Timothy Duggan and the Esbin property Mangement sent an Anonymous envelope to the Toronto Star containing documents which I stored at the address I sublet from.
The UPS package contained personal documents which had never been filed in court and could have only come from Esbin Propertyr management.
The UPS package was traced back to the lawyers at Esbin Property Management.
On Saturday November 26, 2016 there was an article highlighting all of the facts of this case which could have only come from Esbin Property management.
SMALL CLAIMS COURT
On October 13, 2016 Lawyers from Esbin Property Management disobeyed an order to provide details of the location of my belongings and requested an order that my action be dismissed as there was a similar action with me as the Plaintiff before the Ontario Superior Court.
I therefore respectfully submit that based on Esbin Property’s counsel submissions, I should be added as a party to this Superior Court action.
SUBPOENAS and Stay Application and Contempt of Court Order Proceedings
There is a Stay of proceedings and a Contempt of Court application at Old City hall and at Ontario Superior Court, Civil due to the actions of Esbin property management and much will be revealed at that time respecting this action.
[27] The signature of the commissioner on both of Althea’s affidavits is illegible. I adopt Master Sandler’s view in Vinski et al. v. Lack et al. (1987), 1987 CanLII 4408 (ON SC), 61 O.R. (2d) 379, where he stated, at p. 382:
In my view, when a person authorized by the Commissioners for taking Affidavits Act is performing his/her duty thereunder by administering an oath or declaration in signing the jurat, it is important that his/her signature be legible, or can be made out by reference to some other addition immediately below the signature (such as typed or rubber-stamped name of the person), so as to give strangers notice of who purported to take the oath or declaration….
[28] I am not satisfied that the affidavits were signed before a person authorized to administer oaths or affirmations and, accordingly, they do not comply with Rule 4.06(1)(e) of the Rules of Civil Procedure. As a result, they are not admissible evidence.
[29] Even if I were to admit Althea’s affidavit evidence, I question her truthfulness, particularly the alleged sub-lease with Allison, for the following reasons.
[30] First, the hearing of this motion was to commence at 10:00 a.m. When neither Althea nor her counsel, Mr. Freeman, had arrived by 10:30 a.m., Mr. Duggan contacted Mr. Freeman by cell phone. Mr. Duggan informed the court that Mr. Freeman had been advised that Althea had told him at 8:00 a.m. that morning not to attend the motion and that she would appear unrepresented. Althea arrived at the hearing at about 11:00 a.m. She advised the court that Mr. Freeman had injured himself after a fall and had advised her that he would be unable to attend the motion. On speaker phone in open court, Mr. Freeman advised the court that he never told Althea that he would not be able to attend the motion and confirmed that Althea had told him earlier that morning not to attend. No explanation for her earlier misleading statement or apology was offered by Althea. The hearing of this motion was further delayed to 2:00 p.m. to await Mr. Freeman’s arrival.
[31] Second, there is considerable affidavit evidence, which states that Allison Reyes and Althea Reyes are the same person. This is denied by Althea. The affidavit of Ms. Jodhan, sworn June 28, 2016, states that a passport in the name of “Althea Reyes” bearing a photo that appears to be of Allison Reyes was found in the Unit after vacant possession was provided to Esbin Management. The affidavit of Clem MacNeil, sworn November 16, 2016, being a superintendent employed by EPM, states that “Althea Reyes is one and the same as the person known to me as ‘Allison Reyes’…” The affidavit of Kai Yorke-Edwards, sworn November 16, 2016, attaches the following email from DC Phillip Gayle of the Toronto Police Service to Mr. Duggan, dated June 21, 2016:
As mentioned I am seeking any and all public records available for any interactions and processes between Esbin Property Management and Allison and/or Althea REYES. The information provided may be used as evidence in the impersonation case currently against Ms. Althea REYES, where Allison REYES is currently the victim.…
[32] At the hearing of these motions, Althea told the court that she has never met Allison and that she sublet the Unit from Allison through an agent. However, both Allison and Althea have given the same address for service in different proceedings in different courts. Specifically, the plaintiffs in the Statement of Claim issued in this action on September 28, 2015, and the Statement of Claim filed by Althea in the Toronto Small Claims Court on May 24, 2016, gave the same street address for service. No explanation was provided by Althea when the common addresses were drawn to her attention.
[33] Whether Althea should be added as a party to this action requires that the court, by necessity, be satisfied that Althea and Allison are not the same person. I am not satisfied that this is the case. I do not find Althea to be a credible witness. I prefer the evidence of Ms. Jodhan and Mr. MacNeil. For the above reasons, Althea’s motion to be added as a party to this action is dismissed.
SHOULD THE ACTION AGAINST THE ESBIN GROUP DEFENDANTS BE DISMISSED?
[34] The Esbin Group defendants submit that the action should be dismissed as it is barred at law for three reasons and, alternatively, that the evidence before the court justifies the dismissal of the action.
Service of the motion for summary judgment
[35] A preliminary issue is whether the plaintiffs were served with the motion for summary judgment in accordance with the Rules.
[36] Rules 16 and 37.07 of the Rules of Civil Procedure govern the service of motions. Service may be made by regular lettermail.
[37] On June 29, 2016, a copy of the Motion Record was delivered by regular lettermail to the plaintiffs at the following address: 421 Dundas Street West, Suite B1, Toronto, Ontario M5T 2W4. This is the address the plaintiffs gave in their Statement of Claim for the instant action. It is also their last known address. Despite more than one year having passed, they have taken no further step in this action.
[38] On September 19, 2016, this court adjourned the motion for summary judgment for the following reasons:
The Defendants were scheduled to argue a summary judgment motion today, having twice served the unrepresented plaintiffs by mail with motion materials. While not returned as undeliverable, there is no evidence that the Plaintiffs have received notice of the summary judgment motion.
The Defendants must seek an order dispensing with service, after adducing evidence of additional steps taken to locate and serve the plaintiffs, if they wish to argue the summary judgment motion. Examples include hiring a skip tracer, advertisements in newspapers, or other steps. Summary judgment adjourned to Dec. 7th for argument, upon proof of attempted service and extra steps to locate plaintiffs, for 180 minutes if opposed, and 30 minutes if unopposed.
[39] The affidavit of Kai Yorke-Edwards, sworn November 16, 2016, states:
On or about November 10, 2016, I instructed Nixon Legal Services (“Nixon”), a process server used by HLD, to do a driver’s license search for “Allison Reyes” at the address for service listed in the Statement of Claim. In response, on or about November 10, 2016, I was advised by Nixon that there was no record of “Allison Reyes” at that address.
On or about November 14, 2016, I sent copies of the Moving Defendants’ summary judgment materials, as well as the endorsements that had been made in this matter, in separate emails to two email addresses from which “Allison Reyes” had sent emails in connection with this matter, being alireyes400@yahoo.ca and allisonrreyes@yahoo.ca. Neither email was returned undeliverable. As of the date of this affidavit, I have not received a response to either email.
[40] A further affidavit of Kai Yorke-Edwards, sworn November 18, 2016, states that a copy of the Supplementary Motion Record of the Esbin Group defendants, was delivered by regular lettermail to the plaintiffs on November 17, 2016, to their last known address.
[41] There is no evidence that the Motion Record and Supplementary Motion Record have not come to the plaintiffs’ attention. Counsel for the Esbin Group defendants advised that the materials sent by regular lettermail to the plaintiffs have not been returned to his office.
[42] I am satisfied that the Motion Record and Supplementary Motion Record were served on the plaintiffs in accordance with the Rules of Civil Procedure.
Is a Motion for Summary Judgment appropriate in these circumstances?
[43] A “full appreciation” of the evidence is no longer necessary in order to determine a motion for summary judgment on its merits. The question is whether the court’s appreciation of the evidence is sufficient to rule on the merits of a motion fairly and justly without a trial: see Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 34, aff’d 2014 ONCA 878, leave to appeal dismissed, [2015] S.C.C.A. No. 97. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada stated, at para. 49:
[44] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[45] In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial: see Rule 20.02(2). Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: see Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: see Aronowicz v. EMTWO Properties Inc., 2010 ONCA 96, 98 O.R. (3d) 641, at paras. 17-19.
[46] A court may exercise any of the following powers for the purpose of determining whether there is a genuine issue requiring a trial, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weigh the evidence.
Evaluate the credibility of a deponent.
Draw any reasonable inference from the evidence.
Order that oral evidence be presented by one or more parties for the purposes of exercising the above powers: see Rules 20.04(2.1) and 20.04(2.2) of the Rules of Civil Procedure.
[47] I am satisfied that a motion for summary judgment is appropriate in these circumstances. If successful, it will dispose of the entire action against the Esbin Group defendants. The plaintiffs have not responded to this motion nor taken any step to move this action forward. I see no reason why the action against the Esbin Group defendants should not be adjudicated on its merits under Rule 20.
Does the Board have Exclusive Jurisdiction over the Claims Advanced in this Action?
[48] The Esbin Group defendants submit that this action should be dismissed as the claim against them relates to matters that are within the exclusive jurisdiction of the Board.
[49] Section 168(2) of the Act provides:
The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.
[50] Whether a claim comes within the Board’s exclusive jurisdiction turns on whether the “essential character” of the claim is governed by the Act: see Efrach v. Cherishome Living, 2015 ONSC 472, at paras. 13-14. (Div. Ct.).
[51] The Statement of Claim is poorly drafted. The only cause of action asserted in relation to the alleged wrongful detention and disposal of the plaintiffs’ personal property is conversion.
[52] I accept the Esbin Group defendants’ submission that the essential character of one aspect of the claim advanced by the plaintiffs is the wrongful detention of the plaintiffs’ property following their eviction, which is a matter governed by section 41 of the Act. However, subsections 207(1) and (2) of the Act limit the Board’s monetary jurisdiction to $25,000. As a result, the Board does not have exclusive jurisdiction if a claim exceeds the Board’s monetary jurisdiction or if a claimant seeks relief which the Board has no jurisdiction to grant: Kaiman v. Graham, 2009 ONCA 77, [2009] O.J. No. 324, at paras. 13-14 (C.A.). In this case, the claim exceeds the Board’s monetary jurisdiction. Accordingly, the plaintiffs are entitled to commence their action against the Esbin Group defendants in this court.
Is the claim for damages related to the alleged wrongful detention and disposal of the plaintiffs’ property barred by subsection 41(4) of the Act?
[53] Subsection 41(4) of the Act provides that a “landlord is not liable to any person for selling, retaining or otherwise disposing of a tenant’s property in accordance with this section.”
[54] Section 41 of the Act, in part, states:
Disposal of abandoned property if unit vacated
- (1) A landlord may sell, retain for the landlord’s own use or otherwise dispose of property in a rental unit or the residential complex if the rental unit has been vacated in accordance with,
(a) a notice of termination of the landlord or the tenant; … [or]
(d) an order of the Board terminating the tenancy or evicting the tenant…
Where eviction order enforced
(2) Despite subsection (1), where an order is made to evict a tenant, the landlord shall not sell, retain or otherwise dispose of the tenant’s property before 72 hours have elapsed after the enforcement of the eviction order…
Same
(3) A landlord shall make an evicted tenant’s property available to be retrieved at a location close to the rental unit during the prescribed hours within the 72 hours after the enforcement of an eviction order.
Liability of landlord
(4) A landlord is not liable to any person for selling, retaining or otherwise disposing of a tenant’s property in accordance with this section
Scope of subsection 41(4) of the Act
[55] The Act defines “landlord” to include “… the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit …”. [Emphasis added.]
[56] The Esbin Group defendants submit that s. 41(4) of the Act applies to them. EPM is a “landlord” of the Unit, as it controls occupancy of the Unit, is the property manager for this Unit, and has been the recognized by the Board as the “landlord” for purposes of this Unit in the related proceedings before the Board. There is no evidence to support a finding that the other Esbin Group defendants “permit occupancy” of the Unit and thus are also a “landlord” of the Unit. Responsibility for compliance with section 41 of the Act, and liability thereunder, rests with EPM, not its employees or agents.
Did EPM comply with the requirements of section 41 of the Act?
[57] EPM submits that this action against it is barred as it complied with the requirements of section 41 of the Act in disposing of the property that was left in the Unit following the plaintiffs’ eviction, as it was the landlord at all material times.
[58] The Sheriff delivered vacant possession on July 29, 2015.
[59] The affidavit of Joanne Jodhan, a paralegal employed by counsel for the Esbin Group defendants’, states that Allison (who she refers to as Reyes in her affidavit) was provided an opportunity to retrieve her property from the Unit. She states, at para. 15:
I am advised by my review of my file, and do verily believe, that on or about July 29, 2015, the Court Enforcement Office (Sheriff) provided Esbin Management with vacant possession of the Unit. At that time Reyes’s subtenant (not Galia), who was residing in the Unit without Esbin Management’s approval, was evicted.
I am further advised by my review of my file, and do verily believe, that on or about July 30, 2015, arrangements were made to permit Reyes’ subtenant to return to the Unit that day to retrieve his property from the Unit. Reyes was aware that this was going to take place and, at that time, requested that her agent be permitted to attend at the Unit to retrieve Reyes’ property at the same time as her subtenant was scheduled to attend. Esbin Management agreed to this, but Reyes’ agent did not attend at the Unit or the Residential Complex at that time or at any other time.
I am further advised by my review of my file, and do verily believe, that following the carrying out of the eviction, Reyes made no attempt to retrieve her property from the Unit. …
[60] The affidavit of Rhonda Dawe, an accounts receivable administrator for EPM, states that Allison made no attempt to retrieve her property from the Unit after her tenancy was terminated and her subtenant was evicted. She also states that Allison’s property was cleared from the Unit on or about August 28, 2015 due to her failure to retrieve her property.
[61] Althea’s affidavit evidence states that the defendants wrongfully interfered with her right of possession to her property but it does not speak to the plaintiffs’ property. Further, her evidence does not allege a breach of the specific requirements of subsections 41(2) and 41(3) of the Act. For instance, it does not address whether such alleged wrongful interference occurred within a 72 hour period following the plaintiffs’ eviction. In any event, I prefer the evidence of Ms. Jodhan and Ms. Dawe.
[62] Accordingly, I find that the plaintiffs’ action against EPM is barred pursuant to s. 41(4) of the Act.
Have the plaintiffs established a claim in conversion?
[63] In Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce 1996 CanLII 149 (SCC), [1996] S.C.J. No. 111, [1996] 3 S.C.R. 727, the Supreme Court of Canada stated, at para. 31, that:
The tort of conversion involves a wrongful interference with the goods of another, such as taking, using or destroying these goods in a manner inconsistent with the owner’s right of possession. The tort is one of strict liability, and accordingly, it is no defence that the wrongful act was committed in all innocence. [Emphasis added.]
[64] An evicted tenant’s right of possession to property left behind in a residential unit is circumscribed by the Act. As noted earlier, a claim under section 41 of the Act requires proof that either a landlord failed to make the property of an evicted available to that tenant for a period of 72 hours after the eviction or that such property was disposed of by the landlord during that period.
[65] I accept the affidavit evidence filed by the Esbin Group defendants. I find that the elements of a claim in conversion (as well as a claim under section 41 of the Act) have not been established on the evidence.
Is there a civil cause of action for swearing a false affidavit?
[66] The plaintiffs allege that Ms. Dawe swore one or more false affidavits.
[67] There is no civil cause of action for swearing a false affidavit. In Admassu v. Macri, 2010 ONCA 99, at paras. 14, 16, and 38, the Ontario Court of Appeal found that the sole remedy for swearing a false affidavit is to prosecute criminally for perjury.
[68] Accordingly, this aspect of the claim against the defendant Ms. Dawe is dismissed.
CONCLUSIONS
[69] I dismiss Althea’s motion for leave to be added as a party to this action. I grant the Esbin Group’s motion for summary judgment and thereby dismiss this action against the Esbin Group defendants. I find that this action against EPM was barred by subsection 41(4) of the Act. I also find that the plaintiffs have failed to prove that the Esbin Group defendants breached the requirements of section 41 of the Act. I also find that the plaintiffs have failed to prove that the Esbin Group defendants are liable in conversion. I also dismiss the plaintiffs’ action against Dawe seeking damages for swearing a false affidavit as having no basis in law.
Costs
[70] The Esbin Group defendants seek costs of $15,134.17 against the plaintiffs on a substantial indemnity basis. They do not seek costs against Althea.
[71] The fixing of costs is governed by section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and the Rules of Civil Procedure, namely Rule 57.01, which is the primary rule governing costs. In fixing costs, the objective is to ascertain “an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding”. Although a successful party is usually indemnified for its costs by the unsuccessful party, the principle of indemnity is but one of many considerations in fixing costs. In order to promote access to justice, the reasonableness of the amount of costs claimed must also be considered: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at paras. 26, 37; Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at paras. 50-52.
[72] A party may be awarded substantial indemnity costs where the conduct of another party is reprehensible. Such conduct includes making unsubstantiated allegations of fraud, misconduct, or dishonesty: see Unisys Canada Inc. v. York Three Associates Inc., 2001 CanLII 7276 (ON CA), [2001] O.J. No. 3777, at para. 15 (C.A.).
[73] In my view, paragraphs 1(a), 1(c), 4, and 7-10 of the Statement of Claim contain allegations of fraud, misconduct or dishonesty or conduct tantamount to fraud, misconduct or dishonesty that I have found are not supported by the evidence. I find that it is fair and reasonable to order that the plaintiffs pay costs in the amount of $15,134.17, inclusive of disbursements and taxes, to the Esbin Group defendants forthwith.
[74] I dispense with the need for Althea and the plaintiffs to approve the form and content of the Order arising from these Reasons for Decision.
Should Althea be barred from instituting any further proceedings?
[75] As noted above, the court’s endorsement in the Small Claims Court action dated November 8, 2016, raises the question of whether Justice Kershman’s Order operates to bar Althea from instituting the Small Claims Court action, from seeking leave to intervene in this action, or from instituting any other proceeding.
[76] At the end of the hearing of the motions, I provided the parties with the following direction:
I am considering making an order that no further proceeding be initiated by Althea Reyes in any court pursuant to s. 140(1)(c) of the Courts of Justice Act given Justice Kershman’s Order dated January 9, 2009 and January 10, 2009, attached, which declared Althea Reyes to be a vexatious litigant and which appears to have limited the effect of the Order to proceedings related to [name omitted] despite the broader, mandatory language found in s. 140(1)(c) of the Courts of Justice Act. Written submissions, maximum 10 pages in length, shall be delivered to the Judges Administration Office, Room 170, 361 University Avenue, Toronto by December 21, 2016 and by email to christine.cappadocia@ontario.ca [and to roxanne.johnson@ontario.ca].
[77] Given that the Attorney General for Ontario is responsible for the administration of justice in Ontario, I direct that the Registrar deliver a copy of these Reasons for Decision to the Deputy Attorney General for his consideration and submissions, if any, on the above question.
Mr. Justice M.D. Faieta
Released: December 15, 2016
CITATION: Reyes v. Esbin, 2016 ONSC 7755
COURT FILE NO.: CV-15-537370
DATE: 2016-12-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALLISON REYES and MEDHANIT YEREKAGEG Plaintiffs
– and –
HARTLEY ESBIN, RHONDA DAWE, TIMOTHY M. DUGGAN, ROSS LYNDON, DAVID ADAMSON, MARIA GALIA, JOHANNE JOHDAN, ESBIN PROPERTY MANAGEMENT, ESBIN REALTY CORPORATION Defendants
REASONS FOR DECISION
Mr. Justice M.D. Faieta
Released: December 15, 2016
[^1]: Ms. Jodhan’s affidavit indicates that her name was spelled incorrectly when she was named as a defendant. These reasons identify her according to the correct spelling in her affidavit, although the title of proceedings remains with the original spelling.