COURT FILE NO.: CV-17-573648
DATE: 20181221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ping Feng De Chang
Plaintiff
– and –
Jonathan Cooperman, Trustee of the Estate of Paul Zigomanis and Gail MacDonald, Trustee of the Estate of John Zigomanis
Defendants
No one appearing for the Plaintiff
Anne Posno and Delna Contractor, for the Defendant, Gail MacDonald
HEARD: September 24, 2018
nishikawa J.
Overview
[1] This proceeding arises from an explosion that occurred at a house at 3356 Brimley Road (the “House”) on April 20, 2015. The Plaintiff, Ping Feng De Chang, resided in a neighbouring house. Ms. Chang commenced a claim against the Defendants in negligence for her injuries from the explosion.
[2] The defendant, Gail MacDonald, is the daughter and trustee of the estate of John Zigomanis (“John’s Estate”), and brings this motion for a determination of a question of law under r. 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Ms. MacDonald submits that John’s Estate did not own the House at the time of the explosion, and thus owed no duty of care to the Plaintiff.
[3] Paul Zigomanis, who was John’s son, was living in the House at the time and died in the explosion. The Defendant, Jonathan Cooperman, was appointed as the estate trustee during litigation of his estate (“Paul’s Estate”) by the order of Conway J. dated October 14, 2015. Mr. Cooperman did not participate in the motion.
[4] The Plaintiff, who is self-represented, did not respond to the motion, although duly served at the address authorized for service.
[5] In a case arising from the same incident, Zambri v. Cooperman (CV-17-573439), 2018 ONSC 7680, I determined that John’s Estate owed no duty of care to the plaintiff. In that case, the plaintiff was an individual who was driving by on the public road adjacent to the House when it exploded. The Plaintiff in this case is not a passerby, but the resident of a neighbouring home. I nonetheless find that for the reasons given in Zambri that no duty of care arises in the circumstances of this case.
Factual Background
[6] On April 20, 2015, Ms. Chang was in her residence when the House exploded. The impact caused debris to fall from the ceiling of her house and shattered the doors and windows of her home. The Statement of Claim does not state where the Plaintiff’s residence is located in relation to the House. Ms. Chang suffered physical, mental and psychological injuries as a result of the accident.
[7] Paul Zigomanis lived at the House at the time of the incident and had been living there since 1991.
[8] When the incident occurred, title to the House was in the name of Paul’s parents, John and Mary Zigomanis. Mary passed away in 2013. John passed away on December 31, 2014, a few months before the explosion.
[9] In the Statement of Claim, the Plaintiff alleges that John’s Estate was the owner of the House, and that it was responsible as landlord for the actions of its tenant. The Plaintiff further alleges, among other things, that John’s Estate failed to take steps to remove Paul from the House, to prevent Paul from accessing the mechanical and heating systems of the House, to warn neighbours that Paul could become a danger, to notify police that Paul was using illegal drugs and posed a danger to himself and others.
[10] As a result, an issue arose as to who held title to the House at the time of the explosion, Paul or John. After an investigation, Mr. Cooperman brought an application seeking a declaration that Paul was the beneficial owner of the House since 1996 and an order that legal title be transferred to him effective retroactively to January 1, 2015. Since the relief sought would potentially impact the parties with claims arising from the explosion, notice was provided to all interested parties. The Plaintiff, among others, appeared and opposed Mr. Cooperman’s application.
[11] In her decision dated November 17, 2017, Spies J. ruled that the House had been held in trust for Paul since August 1, 1996 and that title to the House be transferred to Paul’s Estate effective January 1, 2015, the day following John’s death (“Spies J.’s Decision”). Spies J.’s Decision made the following findings:
(i) On December 31, 1990, John and Mary purchased the lot at 3356 Brimley Road for $270,000;
(ii) In May 1991, John and Mary signed a Transfer/Deed of Land transferring the House to Paul;
(iii) Paul paid consideration of $140,000 for the House;
(iv) Paul developed a drug addiction that threatened his HVAC business;
(v) On August 1, 1996, Paul transferred the House to his parents, John and Mary for consideration of $2.00. John and Mary held legal title to the House in trust for Paul, who remained the beneficial owner;
(vi) Paul transferred the House back to John and Mary to protect the House from creditors in the event that Paul’s HVAC business became insolvent;
(vii) Mary died on March 23, 2013 and John died on December 31, 2014;
(viii) On January 1, 2015, legal title to the House reverted back to Paul;
(ix) Paul resided at the House since May 1991 until his death in the explosion; and
(x) At no time did John or Mary live at the House.
Issues
Did John’s Estate Owe the Plaintiff a Duty of Care?
[12] For the reasons given in Zambri, I find that John’s Estate owed no duty of care to the Plaintiff.
[13] Ms. Chang alleges various failures on the part of John’s Estate to maintain and inspect the House, as detailed above. The allegations against John’s Estate are premised either on ownership of the House or a supervisory or guardianship relationship over Paul. Unlike the Zambri case, the plaintiff does not allege that John’s Estate had “care and control” of the House.
[14] The Plaintiff’s allegations must fail because John’s Estate was not the owner of the House. Although John’s Estate paid the utilities bills and insurance, this is not a sufficient basis to find a relationship of proximity with the Plaintiff to give rise to a duty of care. The act of paying the utilities bills or ensuring the House was insured, without more, cannot support a relationship of proximity with a neighbour giving rise to a duty of care.
[15] In addition, the Plaintiff has alleged no relationship between John’s Estate and Paul that would support the obligations to monitor and supervise Paul alleged in the Statement of Claim.
Is John’s Estate Subject to Any Legal or Equitable Obligation to Act on Paul’s Behalf?
[16] For the reasons given in Zambri, John’s Estate did not owe any legal or equitable obligations to act on Paul’s behalf or supervise his behavior in relation to the House.
Conclusion
[17] Based on the foregoing, I determine the questions of law as follows:
(a) John’s Estate owed no duty of care to the Plaintiff; and
(b) John’s Estate did not owe any legal or equitable obligation to act on Paul’s behalf in respect of the House.
[18] As a result, the Plaintiff’s claim against John’s Estate is dismissed.
Costs
[19] Ms. MacDonald’s counsel submitted a single bill of costs for this motion and the motion in Zambri. The total costs on a partial indemnity basis are $23,361.75, including disbursements and HST. In Zambri, I awarded costs to Ms. MacDonald of $10,000 on a partial indemnity basis.
[20] The materials submitted on this motion were largely identical to the materials submitted in Zambri. This motion was unopposed. Given the foregoing, I fix costs of the motion on a partial indemnity basis at $1,000, inclusive of disbursements and HST, to be paid by the Plaintiff within 30 days of this order.
Nishikawa J.
Released: December 21, 2018
COURT FILE NO.: CV-17-573648
DATE: 20181221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ping Feng De Chang
Plaintiff
and
Jonathan Cooperman, Trustee of the Estate of Paul Zigomanis and Gail MacDonald, Trustee of the Estate of John Zigomanis
Defendants
REASONS FOR JUDGMENT
Nishikawa J.
Released: December 21, 2018