COURT FILE NO.: C-3237-14
DATE: 20180619
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angelo Cassandro
Plaintiff
– and –
Peter Glass and Peter Glass c.o.b. Micugh Construction Services
Defendants
James M. Longstreet, for the Plaintiff
Trent Falldien, for the Defendants
HEARD: June 4-7, 2018
DECISION
pOUPORE j.:
[1] This action involves the lease of commercial property between a tenant who abused his leasehold rights and a landlord who evicted the tenant and thereafter distrained against the tenant’s entire fleet of commercial vehicles for four and a half years. The landlord distrained the goods in order to have assets of the tenant to compensate for the damages he would sustain.
[2] The plaintiff, Angelo Cassandro, is currently 91 years old and not able to attend trial. He is the owner of a tract of land on the shores of a lake within the City of Greater Sudbury. The land was zoned rural.
[3] The defendant, Peter Glass, was a commercial contractor with a large fleet of vehicles and equipment.
[4] In the spring of 2009, the defendant approached the plaintiff with a proposal to lease with an option to buy the subject property. The defendant was no longer able to remain at his current location because of zoning restrictions.
[5] The plaintiff’s land was not zoned properly for the defendant’s purposes. The defendant undertook to obtain a rezoning of the property with the plaintiff’s assistance. Applications to the relevant authorities were submitted together with the necessary plans for approval. One such approval included the Nickel District Conservation Authority (“N.D.C.A.”), which had jurisdiction over the shoreline upon which the property abutted.
[6] Concurrent with the rezoning, the defendant commenced dumping large amounts of landfill on the property in order to make it more useful for his purposes.
[7] As the rezoning process progressed, inspections of the property were carried out by the N.D.C.A. It became apparent that excessive amounts of landfill were placed too close to the water’s edge.
[8] In 2013, a survey was completed which set out the extent of the defendant’s overfilling. Shortly thereafter, the N.D.C.A. wrote to the plaintiff’s son, Ron Cassandro, who was then acting as his father’s agent. The letter directed the plaintiff to remove the excessive landfill, slope and stabilize the shore and plant vegetation.
[9] The plaintiff approached the tenant, who appeared to agree to do the work as ordered. The tenant, however, did not do the required work on site. This to a large degree contributed to a breakdown in the landlord-tenant relationship.
[10] On November 4, 2013, the plaintiff had a bailiff serve the defendant with a notice of eviction pursuant to the Commercial Tenancies Act, R.S.O. 1990, c. L.7. Vacant possession was required in 30 days.
[11] On January 13, 2014, a further notice was served on the tenant stating that the tenant had seven days to remove all remaining property from the premises and costs that were currently outstanding in the amount of $13,500 were to be paid.
[12] A further notice dated January 13, 2014, was served on the defendant stating that the plaintiff had accepted a one-time payment of $7,000 for rental arrears and costs to January 20, 2014. The previous seven-day notice was extended to January 22, 2014. Further, the landlord was prepared to allow the tenant to re-enter the leased premises on receipt of a further post-dated cheque for $3,100, dated February 1, 2014.
[13] The defendants never did the work ordered by the N.D.C.A. The plaintiff has obtained a cost estimate to complete the work. The N.D.C.A. has set November 2018 as a deadline for the work to be done.
[14] In the meantime, the defendants never removed his chattels from the property. An aerial view clearly demonstrates that the property is full of vehicles, equipment and storage sheds, together with the plaintiff’s building which is full of the defendants’ commercial operating equipment.
[15] At some time after February 1, 2014, the plaintiff took the position that the plaintiff intended to retain the defendants’ property as security for future damages to be assessed after the work ordered to be done on the property was completed together with any other cost incurred. These costs include ongoing rent at $3,090 per month because the property could no longer be rented as a result of the work order from N.D.C.A. as well as the excessive number of the defendants’ chattels on the property, which were too expensive to relocate and store.
[16] On October 9, 2015, the plaintiff brought a summary judgement motion. No mention was made of the counterclaim brought by the defendants. Justice Gordon wrote an endorsement on the motion. He found that the defendants were in arrears of rent and that the action of the plaintiff in taking possession of the property due to default in payment was appropriate. The motions judge found that the defendants were liable to the plaintiff for unpaid rents and other damages related to the use of the property. However, the motion judge was not satisfied that there was enough evidence to establish the amount of damages. He ordered that additional evidence would be required to establish amongst other things:
What efforts to mitigate the loss of rental income were taken by the plaintiff after he took possession of the property? Did the seizure and retention of the defendants’ assets on site constitute an adequate excuse for the subsequent inability to rent the premises?
What work is actually required by the N.D.C.S. and what will be the cost of that work?
What other damage was done to the property and what is the cost of repair? Do the repairs result in betterment of the property? If so, to what extent?
[17] These issues were not meant to restrict the trial judge from addressing other issues.
[18] The motions judge did not make any determination of the validity of the seizure by the plaintiff. Nor did he comment on the counterclaim.
Damages
[19] At trial, the plaintiff called a number of witnesses to prove his damages.
[20] Dennis Lenzi is a regulations officer with the N.D.C.A. He testified that 2708 Southview Drive is not in compliance with the site plan agreement issued in 2009. In order to bring the property into compliance and close the permit issued, fill material must be removed from the flood plain and regulated area.
[21] The Joint Book of Documents contains a survey of the property. It contains two coloured lines. The orange line indicates the extent of fill which was originally approved in 2009. The yellow line indicates where the fill was placed illegally beyond the orange line. All the fill beyond the orange and the yellow lines must be removed. Thereafter, the slopes have to be stabilized and vegetated.
[22] Bruce Tait has been a construction company owner for 20 years. He is familiar with the property in question. Mr. Tait reviewed the survey and visited the site in order to prepare a quote. His quote was for $113,000 at today’s prices.
[23] Jonathan Clark is a site plan and subdivision control engineer for the City of Greater Sudbury. He is familiar with the property in question.
[24] Mr. Clark testified that in 2009 the property was zoned rural and did not permit the use of a contractor’s yard. In that year, an application was made to rezone the property to industrial for the use of a contractor’s yard.
[25] The application was turned down by the City, however, it was eventually approved by the Municipal Board. The City required a site plan agreement, which was completed and registered on the property.
[26] Mr. Clark stated that the City has not been notified that anything has been done to comply with the conditions in the site plan agreement other than a deposit was required and this was paid by Peter Glass.
[27] Mr. Clark also added that an easement had to be prepared in favour of the hydro utility and that the comments of N.D.C.A. are required to be complied with.
[28] The site plan agreement required that the work had to be completed by 2011.
[29] Thomas Mills is an estimator with Pioneer Construction. He prepared a quote for the work to be done on the property in order to close the site plan agreement.
[30] Mr. Mills estimated this would cost $82,000 and would take two to three weeks. He also added that since the time the quote was submitted, costs had gone up two to four percent.
[31] John Boyuk has owned and operated a towing company for 40 years. He submitted two quotes to move the defendants’ chattels. Quote #1 was an on-site move. The chattels would be moved from the lakeside to the roadside of the property. This quote is for $17,797.50.
[32] Quote #2 is for the removal of the defendants’ chattels from the property to another site. This quote is for $49,835.
[33] The plaintiff at trial called evidence with respect to landfill the defendants purportedly placed on an adjoining property owner’s property. The plaintiff is seeking damages from the defendant for the removal of the fill.
[34] No evidence was called from the adjoining landowner. Further, no claim is made in the Statement of Claim for these damages.
[35] The defence called Peter Glass. Mr. Glass confirmed that he offered to lease 2708 Southview Drive at a rent of $3,030 in the spring of 2009. He testified that he dealt with the property owner’s son, Ron Cassandro, as the owner’s agent.
[36] Mr. Glass stated that he was advised that the property was suitable for a use of a contractor’s yard. This was a concern of Mr. Glass as he had just been evicted from a previous site because the zoning did not permit the use.
[37] Mr. Glass moved into the property in the spring of 2009. The site was dirty. He cleaned it at his own cost. Further, he did repairs to the buildings doors and painted the entire building in and out.
[38] Mr. Glass testified that the rented property was not large enough for his use. He asked Ron Cassandro if he could place fill on the lakeside of the property in June of 2009. Consent was given with the stipulation that it would have to be at Mr. Glass’ cost.
[39] Mr. Glass learned that the property was not zoned for his use very early after his tenancy began. He discussed this with the plaintiff. Mr. Glass offered to apply to get the property rezoned with the cooperation of the plaintiff. Mr. Glass was to pay the fees and complete the paperwork. The cost was $4,000.
[40] Mr. Glass undertook to place landfill on the property to meet his needs. He had retained an expert to complete a survey for the site plan and submit the paperwork. This cost about $10,000. Supplying and placing the landfill cost a further $150,000. Further, the deposit paid to get the City’s approval for the site plan cost Mr. Glass $25,339.30. This remains with the City as the work is not complete.
[41] Mr. Glass testified that he commenced work on the site plan requirements.
[42] He expanded the driveway entrance from a single to a double lane, he placed a 250 foot long berme some 12 to 14 feet high along the roadside for noise abatement.
[43] On Thanksgiving Day in 2012, Mr. Glass was hurt while working on the property. His loader went down the embankment on the lakeside and he was severely hurt. After an extended stay in the hospital, Mr. Glass stated he spent one and a half years in a wheelchair.
[44] On November 11, 2013, Mr. Glass received a notice pursuant to the Commercial Tenancies Act requiring that he surrender vacant possession of the property in 30 days.
[45] In January 2014, Mr. Glass was served with a further notice advising him that he had seven days to remove his chattels from the property upon payment of all outstanding costs and rent. The costs claimed were $13,500.
[46] Mr. Glass was also served with a further notice stating the landlord would accept a one-time payment of $7,000 and a further sum of $3,100 in order to terminate the eviction process.
[47] The defendant testified that he obtained a bank draft and attempted to give it to Ron Cassandro and, when that failed, to the bailiff David Wiebe. Both of these individuals denied any attempt by the plaintiff to tender these funds.
[48] The evidence is clear that from sometime in mid-January 2014, the defendant was denied access to the leased premises and his chattels, except on one occasion he was permitted to retrieve some documents for trial preparation.
[49] The defendants’ chattels remain on the property some four years and five months later. The property has been broken into a number of times and chattels have been removed. The plaintiff landlord has no idea what was removed. The plaintiff further testified that no maintenance has been done on any of the vehicles or machinery in order to preserve them in the state they were in January 2014.
[50] Mr. Glass testified that the appraisal of his chattels underestimates their value. He further stated that not all of the chattels that were there were contained in the appraisal report. However, Mr. Glass did not state what he says the value of the chattels was nor did he submit an appraisal of his own.
[51] The defendant testified that while he was a tenant of the plaintiff, he ran a very successful construction service business. He stated that his 2010 sales totaled $5,000,000. His 2011 business income was $392,101, and in 2012 it was $233,113. To support this evidence, Mr. Glass submitted his Tax Return Summaries for 2011 and 2012, without any further back-up documentation to explain how the net business income was generated.
[52] Mr. Glass was severely injured on the leased land on October 9, 2011, while operating a piece of heavy equipment. The result was a long hospital stay and approximately 18 months in a wheel chair. Consequently, Mr. Glass testified that his income suffered greatly. His income tax summaries for the years 2013 and 2014 show no income. The summaries for 2015 and 2016 show a minimal income.
[53] Although the defendant admits that the accident affected his income, he states that from the time of the seizure of his chattels he was unable to carry on his business and earn any income.
[54] No documentary evidence was tendered by the defendant for the years 2017 nor 2018 to date.
[55] The defendant testified that he took no legal step to recover his property.
[56] Mr. Glass also stated that upon agreeing to lease the property he was assured by the plaintiff that the site was suitable to be used as a construction contractor’s yard. It was not until he had moved all his chattels to the property, cleaned the yard, painted and did alterations to the building, that he was advised by the City of Greater Sudbury officials that the zoning did not permit such a use. At this point, he decided that with the landlord’s consent he would apply for a rezoning, which was eventually successful.
[57] During the rezoning process, Mr. Glass got the plaintiff’s consent to place landfill on the property to improve its usefulness to his business operations. He testified this was done at his cost of approximately $150,000, but always under the supervision of the plaintiff.
[58] Mr. Glass was aware of the site plan agreement. Further, he became aware from N.D.C.A. of the overfill situation. The defendant testified that he began work on the land to close the site plan requirements until he was hurt. From that time no further work was done. Eventually it would appear that Mr. Glass began evading responsibility to rectify the overfill situation on the shore line.
[59] In cross-examination, Mr. Glass testified that he could not remember obtaining a dump fill permit. Further, Mr. Glass could not substantiate the costs he claimed for filling the property.
[60] David Wiebe, a licensed bailiff, was called to give evidence. He stated that in 2012, he was called to collect arrears of rent from the defendants and he did so in the amount of $25,000 inclusive of costs.
[61] Mr. Wiebe identified six pages as being part of his appraisal report. The back-up was missing. He attended at the site, listed the chattels there and gave a liquidation value for each. Many of the chattels were not in good working order.
[62] Mr. Wiebe did recall receiving a communication from Mr. Glass around the time that the notices to vacate were served. Mr. Glass stated he wanted to remedy the situation. However, Mr. Wiebe testified that no cheque was offered to him. He referred Mr. Glass to the landlord.
[63] Mr. Wiebe testified that he did not act as bailiff and seize the chattels in question. He stated that if he was asked to move the chattels to another location and that it would have cost approximately $50,000 for transport and thereafter $5,000 per month for storage.
[64] Mr. Wiebe also testified that if he had been retained, then he would have recommended obtaining a judgement and thereafter conducting an on-site action to satisfy the claim. All of this should have been done in a very short period of time.
The Positions of the Parties
The Position of the Plaintiff
[65] The position of the plaintiff is as follows:
In 2009, the defendant was displaced from his place of business because the land was not zoned to operate a commercial contractor’s yard.
The defendant approached the plaintiff with a view to enter into a lease purchase agreement for the plaintiff’s property located at 2708 Southview Drive in the City of Greater Sudbury. The agreed upon rent was $3,090 per month.
At the time, the defendant knew that the property was zoned for rural use and not for commercial use.
No lease was signed. It was a month-to-month tenancy.
No agreement of purchase and sale was completed.
Soon after taking possession, the defendant began placing landfill on the property to make it more useful for his purpose of operating a commercial contractor’s yard.
The tenant made changes to the building on the property.
When the defendant learned that the land was not zoned for his intended use, the defendant undertook at his own cost to apply for rezoning.
The rezoning was approved; however, a site plan was registered on the property which required work to be done on the property as well as some shoreline work to satisfy the comments of the N.D.C.A. about overfilling on the flood plain adjacent to the shoreline of Kelly Lake.
A summary judgement motion was brought by the plaintiff on October 15, 2015. The motion resulted in an Order for the following:
i. The defendants are liable to the plaintiff for loss of rental income and other losses resulting from the defendants’ use and occupation of the property.
ii. A trial was to proceed to determine the damages for loss of rental income and other losses resulting from the defendants’ occupation of the property.
iii. Costs were reserved to the trial judge.
- The plaintiff is claiming the following damages:
a) Damage to the buildings’ doors b) Cost for surveying extent of excessive fill c) Fees paid to N.D.C.A. d) Gravel placed at entrance of the property to prevent access in order to protect the defendants’ chattels e) Bailiff’s fees for service of notices and appraisal of chattels f) Cost to remove excessive fill on flood plain g) Cost to remove chattels h) Costs to complete site plan requirements of the City i) Plaintiff’s costs to manage chattels for more than four years j) Lost rent for four years and 5 months k) Cost to remove fill from neighbour’s property by defendants which constitutes a trespass Total
$ 4,420.33 1,299.56 750.00 565.00 3,401.80 113,000.00 49,833.00 96,366.40 18,720.50 166,860.00 42,040.00
$497,256.59
[66] It is the plaintiff’s position that the defendants were given notice to quit the tenancy because they were not removing the excess fill deposited on the shores of Kelly Lake. There were three notices given to the defendants, which permitted them to remove their chattels from the property upon payment of rent and costs.
[67] The plaintiff took possession of the land and buildings on January 20, 2014, with the service of the last notices. At that time, the January 2014 rent was outstanding plus costs. The plaintiff states that no monies were tendered to satisfy amounts outstanding.
[68] It is also the plaintiff’s position that he knew there were damages to remove the fill and that is why he held onto the chattels.
[69] The plaintiff also states that the defendants had legal remedies open to them to recover their property but none were taken. The plaintiff disputes the damages claimed by the defendants in the counterclaim. The lost income claim is unsubstantiated.
The Position of the Defendants, Plaintiffs by Counterclaim
[70] The defendants dispute the plaintiff’s claims for damages under the following heads:
Rent;
N.D.C.A. request for fill to be removed;
Cost to complete the site plan agreement;
Miscellaneous costs and damages of the landlord; and
Costs to rectify a trespass to the adjacent property.
Rent
[71] The defendants admit that they were on a month-to-month verbal lease. Therefore, the Notice to Quit delivered in November 2013 legally terminated the lease effective 30 days after receipt of the notice. However, the defendants state that from the date of termination the landlord had no legal right to distrain against their chattels. No rent was then owing. Further, the defendants state that no future rent became due because of the plaintiff’s conversion of their chattels and the illegal distraint.
- Costs to Remove Landfill
[72] The defendants state that the costs claimed to remove the landfill are excessive. In cross-examination, Mr. Trit could only explain $48,000 of his estimate.
- Cost to complete the site plan agreement
[73] The defendants further state that the plaintiff would incur no cost to complete with the City’s site plan requirements because it is open to him to apply to have the zoning returned to rural.
- Miscellaneous costs and damages of the landlord
[74] With respect to the plaintiff’s other claims for monies and time expended, the defendants deny they are responsible for them.
- Costs to rectify a trespass to the adjacent property
[75] The defendants state that the pleadings do not contain a claim for trespass. Further, they contest the plaintiff’s right to make a claim for these damages
Counterclaim
[76] The defendants state the plaintiff had no legal right to distrain. The defendants were not permitted to remove their chattels. Further, the tenant spent December 2013 and January 2014 attempting to satisfy the concerns of the plaintiff.
[77] The defendants state that they attempted on more than one occasion to contact the plaintiff or his representative, but to no avail. The defendants also state they attempted to tender a bank draft to the plaintiff, but to no avail.
[78] The defendants point to the Statement of Claim and correspondence from the plaintiff’s solicitor, which make it clear that the plaintiff seized the defendants’ chattels and held them for payment of damages to be incurred to remove the excessive fill.
[79] The damages claimed by the defendants are:
For illegal conversion and distraint, the value of the chattels as established by the plaintiff’s appraiser - $166,190;
For lost income, a multiple of the defendants’ annual income earned in the years prior to Mr. Glass’ accident on October 9, 2011, from a period of one and a half years post-accident to date. This amount was not specified in evidence, except the references to some one-page income tax summaries for the years 2011 to 2016.
[80] The plaintiff, defendant in the counterclaim, takes the position that the defendants abandoned the chattels on the property, failed to rectify the concerns of the N.D.C.A., and failed to complete and close the site plan agreement.
The Law
Distraint
[81] A party can seek distraint or termination of a lease—not both. In Malka & Circle Inc. v. Vasiliadis, 2011 ONSC 5884, Campbell J. held at para 133:
The law is clear that when a tenant defaults in the obligation to pay rent, the landlord has two mutually exclusive legal remedies, and must elect which remedy to pursue. The landlord can elect to enter the premises and distrain the goods owned by the tenant for purposes of satisfying the debt owed by way of rent, but with a view to continuing the lease. Alternatively, the landlord can elect to re-take possession of the premises and terminate the lease, and potentially pursue other additional remedies. See: Clarkson Co. Ltd. v. Consortium Group Ltd. (1983), 1983 CanLII 1995 (ON SC), 40 O.R. (2d) 771 (H.C.J.) at p. 778; Falwyn Investors Group Ltd. v. GPM Real Property (6) Ltd., [1998] O.J. No. 5258 (Gen.Div.) at para. 15, 18, 44; Highway Properties Ltd. v. Kelly, Douglas & Co. Ltd., 1971 CanLII 123 (SCC), [1971] S.C.R. 562; North Bay T.V. & Audio Ltd. v. Nova Electronics Ltd. (1983), 1984 CanLII 2100 (ON CA), 44 O.R. (2d) 342 (H.C.J.) at p 345; affirmed: (1984), 47 O.R. (2d) 588 (C.A.).
See also Re Lussier et al. and Denison, 1971 CanLII 737, [1972] 3 O.R. 652 (Co. Ct.); aff’d 1972 CanLII 378 (ON SC), [1972] 3 O.R. 656n (C.A.); Bank of Montreal et al. v. Woodtown Developments Ltd. (1979), 1979 CanLII 1994 (ON SC), 25 O.R. (2d) 36 (H.C.); Clarkson Co. Ltd. v Consortium Group Ltd., 1983 CanLII 1995, 40 O.R. (2d) 771 (H.C.); North Bay T.V. and Audio Ltd. v Nova Electronics Ltd. et al., 1984 CanLII 2100, 44 O.R. (2d) 342 (H.C.); aff’d (1984) 47 O.R. (2d) 588 (C.A.).
Distraint is for Rent Arrears
[82] As outlined in the Commercial Tenancies Act, R.S.O. 1990, c. L.7, s. 41:
A person having any rent due and in arrear, upon any lease for life or lives or for years, or at will, ended or determined, may distrain for such arrears, after the determination of the lease, in the same manner as the person might have done if the lease had not been ended or determined, if the distress is made within six months after the determination of the lease, and during the continuance of the landlord’s title or interest, and during the possession of the tenant from whom the arrears became due.
[83] Distraint only applies to obligations that are classified as rent.
[84] As stated in Baragar & Russell Ltd. v. 1553464 Ontario Ltd., 2004 CarswellOnt 1701 (S.C.), at para. 33 “Distress is available only for non-payment of rent and not for breaches by the tenant of non-rent covenants”.
The Goods must be on Commercial Property and the Amount must be Reasonable
[85] A landlord can only distrain chattels on the commercial property. This excludes items on residential property and common areas like parking lots: see e.g. Al Reisman Ltd. v. Indrasenan, 2009 CarswellOnt 7675 (Div. Ct.).
[86] The Commercial Tenancy Act, s. 43 also clarifies that “Distress shall be reasonable.” Section 55 of the Act provides that a landlord who takes an excessive distress, or takes a distress wrongfully, is liable in damages to the owner of the goods distrained.
[87] A landlord cannot seize and sell more goods than are reasonably necessary to satisfy the arrears of rent: 1526183 Ontario Ltd. v. Grant Equipment Corp., 2010 ONSC 928, at para. 37. For excessive distress, the damages are typically special damages. But general damages may be appropriate, at para. 37:
However, where the wrongful distress is very excessive and the landlord's conduct has been oppressive, the distress may be found to be illegal and subject to a claim for general and special damages. Punitive or exemplary damages have also been awarded against a landlord where its exercise of distress was oppressive and there have been aggravating circumstances. (See: Posen "The Tenant's Remedies for Wrongful Distress", pp. 134-137, in Haber ed. Distress, A Commercial Landlord's Remedy (Aura, Ont. Canada Law Book 2001).
[88] Counsel provided the court with a copy of Pita Royale Inc. v. Buckingham Properties Inc., 2017 ONSC 5976, in which arrears and improvement costs were sought in the amount of $10,879 and the landlord wrongfully distrained and sold chattels at a price below market value. Damages for conversion were awarded in the amount of $58,190.74 with $10,000 in punitive damages.
Discussion
[89] It is difficult to discern just when the plaintiff took possession of the leased premises and distrained the defendants’ chattels and converted them to his own use. However, it is safe to say the landlord did so by January 31, 2014.
[90] It is also difficult to discern if any rent was owing to the plaintiff at the time of the distress and conversion. However, as I have determined that the latest date was January 31, 2014, then the only rent that was legally owing on that date is for the month of January in the amount of $3,090.
[91] As of January 31, 2014, the plaintiff had terminated the lease agreement. He therefore was no longer in a position to charge the defendants rent. The plaintiff was in a position to dispose of a sufficient amount of the defendant’s chattels to satisfy the rent owing and thereafter return the remaining chattels to the defendants.
[92] The plaintiff had no legal right to withhold the defendants’ chattels in anticipation of future damages to remove the excessive fill.
[93] The plaintiff takes the position that the defendants abandoned their chattels on the property. I am not satisfied that the plaintiff has made out that case. The plaintiff prevented the defendant from removing the chattels by making an illegal demand that they pay for the yet to be ascertained damages. It was not until October 2015 that the plaintiff got his estimate to have the fill removed.
[94] Given the plaintiff’s excessive distraint and illegal demand for damages at the time, I find the plaintiff is not entitled to any rent beyond January 31, 2014.
[95] The defendants, after taking occupancy of 2708 Southview Drive, began filling the property without a permit to do so. This resulted in landfill being placed on the flood plain at the shore of Kelly Lake in contravention of the N.D.C.A.’s rules and regulations. The result is that the offending fill must be pulled back, the edges of the banks need to be sloped and vegetated and filter barriers put in place. The best evidence at trial was that this work would cost $48,000 plus HST, for a total of $54,240.
[96] I also accept the evidence of the plaintiff for obtaining the survey to detail the work that needed to be done on the shoreline at $1,299.56 and the N.D.C.A. fees of $750.
[97] The application for rezoning was undertaken by the defendants at their own cost. They were successful. The defendants therefore assumed the costs of completing the site plan agreement. I accept the cost estimate proven at trial in the amount of $82,000 plus HST, for a total of $92,660.
[98] I do not accept the remainder of the plaintiff’s damages, including damage to doors, management security, towing charges and trespass. These have either not been proven or have resulted from the excessive distress and conversion and possibly failure to plead trespass.
[99] The total of the plaintiff’s damages I find as proven is:
Rent $ 3,090.00
Cost to relocate fill 54,240.00
Survey 1,299.00
N.D.C.A. fees 750.00
Cost to complete site plan 92,660.00
$152,039.00
[100] The defendants’ counterclaim presents equal difficulty in calculation.
[101] The excessive distress was a wrongful conversion of the defendants’ chattels. These were appraised by the landlord at the time and I accept the value of $166,190. The chattels were not properly secured and maintained. As a result, some have gone missing and others most certainly have depreciated. However, this falls on the plaintiff. As a result of my findings in this judgment, they are the plaintiff’s to dispose of.
[102] The defendants counterclaim is very thin on evidence and difficult to accept as presented. I am satisfied that the defendants were prevented from earning income as a result of the assets seized by the plaintiff. On the other hand, the defendants had fairly expeditious legal means at their disposal to regain their property, but they chose to do nothing in the years from seizure until now. In other words, the defendants failed to mitigate their losses.
[103] In the result, I assess the plaintiff’s by counterclaim loss of income claim at $100,000.
[104] I find therefore on the counterclaim damages of:
- Excessive distress $161,900.00
Less 3,090.00 $158,810.00
- Lost income 100,000.00
$258,810.00
[105] The defendants made representation at the end of argument that set off ought not be applied as neither party had pleaded it. While this is true, I am satisfied that both plaintiff and defendant ought to have known the case of the other. Further, in light of the defendants’ admission that they are judgment proof, it would be highly prejudicial to the plaintiff to not apply a set off.
[106] The defendants, plaintiffs by counterclaim, shall therefore have judgment against the plaintiff after set off in the amount of $106,771.
[107] As success has been split in this case, I find that both parties ought to bear their own costs. If either one or both of the parties disagree, I will receive their submissions in writing of no more than five pages within ten days of the release of this judgment.
The Honourable Mr. Justice John S. Poupore
Released: June 19, 2018
COURT FILE NO.: C-3237-14
DATE: 20180619
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angelo Cassandro
Plaintiff
– and –
Peter Glass and Peter Glass c.o.b. Micugh Construction Services
Defendants
DECISION
Poupore J.
Released: June 19, 2018