Court File and Parties

Court File No.: CV-13-490632 Date: 2017-06-30 Ontario Superior Court of Justice

Between: Andrew Enofe, Plaintiff – and – Capreit Limited Partnership, Defendant

Counsel: Andrew Enofe, Self-represented Plaintiff Brian Monteiro, for the Defendant

Heard: September 26, 27, 28, 29 and 30, 2016

Before: Stewart J.

Nature of the Action

[1] Andrew Enofe has brought this action against Capreit Limited Partnership (“Capreit”) and claims monetary compensation resulting from the alleged damage to or disappearance of his property stored at an apartment building in Toronto managed by Capreit.

[2] Capreit takes the position that it bears no liability to Enofe in the circumstances of this case. Capreit argues that, at most, it was a gratuitous bailee and did not breach any duty of care it may have owed to Enofe.

[3] Capreit also maintains that Enofe has not proven that all or any of the property alleged by him to have been damaged, destroyed or lost was ever on Capreit’s premises, or was ever actually damaged, destroyed or lost as Enofe alleges.

[4] Capreit argues that the value of the property alleged by Enofe have been damaged, destroyed or lost has been wildly exaggerated. In addition, Capreit argues that the psychological damages Enofe says he has suffered as a result of these events have not been proven and, in any event, are not recoverable.

Facts

[5] Some of the initial time at trial was devoted to hearing Capreit’s motions to quash subpoenas served by Enofe on various executives and officers of Capreit who have no knowledge of the facts of this case, as well as on a representative of the Law Society of Upper Canada and on Capreit as the employer of in-house counsel who represented Capreit at trial. Those subpoenas were ultimately either withdrawn by Enofe or quashed.

[6] The facts of this case are comparatively quite simple. The events giving rise to the action occurred in the summer of 2013.

[7] On July 1, 2013, Enofe applied to rent an apartment in one of the buildings managed by Capreit at 2020 Sheppard Avenue West, Toronto.

[8] Enofe completed a rental application and provided a security deposit and first and last month’s rent cheques.

[9] The application to lease executed by Enofe provided that, if accepted by Capreit, the parties were to execute a formal written lease.

[10] A preliminary credit check performed by Capreit resulted in the imposition upon Enofe of the requirement to obtain a guarantor of his obligations under any lease to be executed. Enofe advised Capreit that he had obtained a guarantor and would attend to sign the lease.

[11] On July 4, 2013, before any lease was ever signed, Enofe picked up the keys to the apartment, viewed it and noticed that the apartment had signs of some insect infestation. As a result, Capreit agreed to arrange for a routine fumigation of the apartment to be done.

[12] On July 5, 2013, Enofe advised Capreit that he did not wish to lease the rental unit after all. An offer of a different unit in the building by Capreit was rejected by him.

[13] As it turned out, Enofe never actually moved into the apartment and did not sign any lease for the apartment that otherwise would have been required to establish his tenancy. As a result, Enofe never became a tenant in the building and Capreit was never his landlord.

[14] Before advising Capreit of his change of plans, however, Enofe had asked and obtained permission from one of Capreit’s employees to temporarily store some of his belongings in the Capreit building since he had been required to vacate his previous residence.

[15] No payment for storage was ever demanded by Capreit in consideration of its allowing the requested storage, nor was any offer of payment made by Enofe. This storage arrangement was expected by Capreit to be very brief in duration and was merely a gratuitous act of courtesy and kindness by Capreit to accommodate a prospective tenant who was expected to take possession of an apartment within a very short while.

[16] Enofe moved furniture and other belongings into the storage room in the basement of the Capreit building.

[17] After he had advised Capreit that he had changed his mind about the apartment, Enofe asked for refund of the deposit and rent cheques he had provided to Capreit. Authorization to refund the rent paid by Enofe was given by Capreit on July 15, 2013 and a refund provided to him soon thereafter.

[18] Throughout the entire month of July, 2013 Enofe took no steps to remove his property from the Capreit building despite his having told Capreit he no longer wished to rent an apartment there.

[19] On August 3, 2013, Saywack Singh, Capreit’s Site Manager, contacted Enofe to tell him to remove his belongings from the storage room in the building. Enofe testified that when he finally attended in mid-August, 2013 to retrieve the property left at Capreit’s premises he discovered that such property had been either seriously damaged or was missing.

[20] Enofe claims that there was a flood in the basement of the building that affected the room where he had stored his property and that some of his possessions had sustained water damage as a result. He also alleges that some of his possessions had been damaged or had disappeared as a result of vandalism or theft.

[21] On August 16, 2013, Enofe delivered to Capreit a “Letter of Intent to Sue”. In that letter, he complains of water damage to his property. No mention is made by him in this letter of any missing or stolen property.

[22] Enofe also indicated in this letter his intention to claim damages of $500,000.00 from Capreit if no satisfactory response was forthcoming.

[23] By Statement of Claim dated October 11, 2013, Enofe commenced this action. In it, Enofe claims damages for breach of contract and “emotional stress and trauma” in an aggregate amount of $99,000.00.

[24] On February 7, 2014 Enofe also lodged a complaint of theft with the Toronto Police Service who were obliged to conduct a investigation. No evidence of theft was uncovered and no charges were ever laid.

Liability

[25] It is clear that no lease was ever entered into by the parties. To the extent it might be said that any contract or agreement had been entered into, it was simply one for the temporary storage of Enofe’s property.

[26] As a result, I agree that the law of bailment and the duties that arise from such a relationship are applicable to the facts of this case and form the basis of Enofe’s claims.

[27] Bailment is the delivery of personal chattels on trust, usually on a contract, express or implied, that the trust shall be executed and the chattels be delivered in either their original or an altered form as soon as the time for which they were bailed has elapsed. The legal relationship of bailor and bailee can exist independently of a contract. It is created by the voluntary taking into custody of goods which are the property of another (see: Punch v. Savoy’s Jewellers Ltd. (1986), 54 O.R. (2d) 383 (C.A.)). That is what occurred in this case.

[28] This raises the following question: did Capreit owe any duty of care to Enofe in these circumstances to ensure that his property was not stolen or damaged?

[29] Whether a party is a bailee for hire or a gratuitous bailee, a duty of care nevertheless is imposed upon that party. The only difference is the applicable standard of care (see: Painter v. Waddington, McLean & Co., [2003] O.T.C. 1152 (S.C.)).

[30] A gratuitous bailee is responsible only for gross negligence (see: Leggo v. Welland Vale Manufacturing Co. (1901), 2 O.L.R. 45 (C.A.); Watson v. Dominion Bank (1936), 18 C.B.R. 266 (Ont. C.A.); Grafstein v. Holme & Freeman, [1958] O.R. 296 (C.A.)).

[31] In comments made obiter, Perell, J. has recently upheld this long-established standard of gross negligence in circumstances of gratuitous bailment (see: Chan v. Gray, 2012 ONSC 2068).

[32] The standard of care required of a gratuitous bailee therefore is to keep the goods only as a prudent owner might reasonably be expected to take of his own goods in similar circumstances (see: Ginsberg v. Vanstone Motors Limited (1949), O.W. N. 345).

[33] In my view, Capreit was a gratuitous bailee subject only to the “prudent owner” standard of care.

[34] Accordingly, Capreit owed a duty of care to Enofe, but of a less strict nature that one that would arise in a commercial bailment scenario or any bailment for reward. Further, the circumstances surrounding the storage arrangement make it evident that such storage was only to be of very limited duration. To the extent there was risk involved in these arrangements, I conclude that Enofe willingly accepted some reasonable measure of that risk.

[35] The question therefore to be determined is: what care would a prudent owner have exercised for the safety of the articles if entrusted to him, under similar circumstances?

[36] The law of bailment imposes on the bailee an onus to prove that he took appropriate care or that his failure to do so did not contribute to the loss. The burden is on the bailee to show that the damage occurred without any neglect, default or misconduct on the part of himself or those for whom he is responsible (see: Ferguson et al. v. Birchmount Boarding Kennels Limited et al., [2006] O.J. No. 300 (S.C.J. (Div. Ct.))).

[37] As a result, Capreit must show that it met the standard of care expected of it in all of the circumstances, and was not grossly negligent.

[38] The property in question was placed in a locked room in the building’s basement. Access to the room was limited to authorized employees.

[39] Enofe made no complaint about the nature of the storage space when he moved his property into it, nor did he raise any issue about the apparent degree of security.

[40] There is no evidence of any rash of break-ins, burglaries or vandalism in the building at the time, nor any evidence of unauthorized intrusion into that room in particular. The entrances to the building are monitored by closed-circuit cameras.

[41] Frequent and regular maintenance checks are conducted throughout the building. Available records of maintenance for the period in question reveal no unusual problems, accidents, floods or burglaries. None of the Capreit employees who testified recalled any unusual problems.

[42] Photographs taken by Enofe when he subsequently reviewed his property in August, 2013 show some liquid staining on the cement floor of the room. However I do not observe any signs of any major flooding in the room as is alleged to have occurred.

[43] Although there is some evidence of some water on the floor of the storage room when the police attended there in February, 2014, there was no indication or record of any water leakage approaching flood proportions in that room during the applicable time frame. Similarly, there is no evidence of any break-in or theft.

[44] As a result, there is no evidence that would suggest that Capreit or any of its employees did or failed to do anything that would amount to gross negligence.

[45] Instead, the impression provided by the evidence of the Resident Manager, Leasing Specialist and Site Manager is that of a very professional and competent operation. The favour extended by the lower-level employee to allow Enofe to store property in the basement storage room is most likely one that Capreit now regrets, but not because it did anything that was in any way improper or substandard.

[46] Considering all of the evidence, I conclude that Capreit has shown that it was not grossly negligent in this case. Indeed, were the standard of a bailment for hire applied to the facts of his case, I would likewise conclude that Capreit had not breached any duty to Enofe.

[47] As a result, Enofe’s claim must fail.

Damages

[48] Although I have found that this claim is unmeritorious, I must nevertheless consider the damages available to Enofe and their quantum.

[49] Capreit tendered as evidence a video taken by the Site Manager of Enofe when he entered the room on July 6, 2013 to get access to obtain some of his property. In that video, Enofe is shown emptying bags and suitcases and spilling their contents on the floor. Capreit’s position is that if there were any tampering with Enofe’s property it was most likely carried out by Enofe himself on this occasion.

[50] There are clothes and foodstuffs strewn about as seen on the videotape, but no expensive computer or electronic equipment, jewellery, or paintings.

[51] The photographs of the furniture in the room taken by Enofe show some marks and scratches on it, but they all appear to be what might be expected to be seen on used furniture.

[52] Although Enofe (and the various friends he called as witnesses to corroborate his evidence) claim the existence of electronic equipment, computers and a television among his possessions, the Capreit videotape of July 6, 2013 does not show any such items.

[53] Enofe did not submit any photographs taken of his previous apartment showing the existence or appearance of the items said to have been damaged or stolen, although he did present the aforesaid large bundle of photographs taken by him purporting to show the damage done to these items while in storage. No receipts of purchases or credit card statements were produced to show that these items ever existed. The witnesses called on his behalf could not verify the descriptive details or the values of the television, laptop computer, jewellery, wrist watches or expensive shoes that Enofe claims were stolen or damaged while on Capreit’s property.

[54] Finally, Enofe’s estimates of the cost of the items he said were damaged or destroyed were vague and not supported by any specific reliable documentation.

[55] Capreit tendered the evidence of Brett Arsenault, a Content Claims Specialist with lengthy experience and expertise in the proper valuation of claims for property damage for insurance purposes. I consider Arsenault’s evidence as to the value of the alleged damaged property to be the best evidence available to determine damages.

[56] Arsenault prepared a list of Enofe’s property items from information provided from all sources and priced each item. These were contained in a report prepared by him which offered values assessed on a depreciated basis and on a Replacement Cost basis.

[57] I am of the opinion that, had liability been established, a Replacement Cost approach to damages would have been appropriate. Had that been the case, I would assess Enofe’s damages at $17,500.00.

[58] Enofe claimed he has not been able to work as a real estate agent as a result of these events and his income has dropped over the years since 2013.

[59] In my opinion, Enofe’s loss of income claim was not substantiated at trial. No actual income tax returns, income statements or other documentation of loss of income was provided. Further, this being a claim for breach of contract, such a head of damages would generally be considered to be unavailable, and too remote.

[60] Enofe also gave evidence about the unhappiness, emotional upset and stress he says the damage to and disappearance of his property caused him. He said he has been suffering from suicidal thoughts as a result of what happened. However, no physician gave expert evidence as to such impact, nor were any medical reports filed. Although I accept that some annoyance may have been caused to Enofe by these events, I do not view it as being as significant as he professed. In any event, I do not accept that such upset was a magnitude that would invite or warrant compensation.

[61] As a result, I assess Enofe’s damages at a total amount of $17,500.00.

Conclusion

[62] For these reasons, the action is dismissed.

Costs

[63] If the parties cannot agree on the subject of costs, written submissions may be delivered by Capreit within 20 days of the date of this decision and by Enofe within 20 days thereafter.

Stewart J. Released: June 30, 2017