Court File and Parties
COURT FILE NO.: CV-11-433639
DATE: 20180205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LLOYD FRENCH
Plaintiff /Defendant by Counterclaim
– and –
H&R PROPERTY MANAGEMENT LTD. and VITALI VYTRYKOUCH
Defendants/Plaintiffs by Counterclaim
Counsel:
Self-Represented
Mark A. Freake, for the Defendants/Plaintiff by Counterclaim
HEARD: January 22, 23 and 24, 2018
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] Pursuant to a lease agreement, the plaintiff formerly resided at 2 Triburnham Place, Unit 307, Etobicoke, Ontario (“the property”). The defendant H&R Property Management Ltd. (“H&R”) provided property management services for the residential apartment building in which the property was located. The defendant, Vitali Vytrykouch (“Vitali”) was at all material times employed by H&R as the property manager for the property.
[2] As set out in greater detail hereinafter, the plaintiff’s tenancy was ultimately terminated in the summer of 2010. The plaintiff refused to move out of the unit. A formal eviction by the Sheriff’s office took place on August 25, 2010. On that date, the plaintiff was unable to remove his belongings, including three cats, and re-attended on August 27, 2010 with a friend and a rented van.
[3] While the parties differ as to what exactly happened on August 27, 2010, the plaintiff ultimately commenced this proceeding seeking general, compensatory and aggravated damages arising from (a) an alleged physical assault by Vitali, and (b) the defendants’ breach of various provisions of Residential Tenancy Act, S.O. 2006, C.17 (the “Act”).
[4] At the conclusion of the trial of this proceeding, I took my decision under reserve.
[5] These are my Reasons.
The Plaintiff’s Motion to Amend
[6] At the opening of trial, the plaintiff sought leave to amend his Statement of Claim. The proposed amendments simply sought to “reshuffle” the amounts claims for the various categories of damages in the prayer for relief. The defendants did not oppose the plaintiff’s request, and leave to amend was granted.
[7] While I fully appreciate that the plaintiff was self-represented throughout this proceeding, a litigation search produced by the defendants discloses that the plaintiff has commenced up to six other legal proceedings in the Ontario Superior Court of Justice, and is thus not a complete stranger to the litigation process.
[8] During the course of the plaintiff’s cross-examination, he stated that (a) none of the damages he was seeking related to the alleged physical assault, and (b) he was not claiming any losses for the defendants’ alleged breaches of the Act. After hearing that testimony, I reviewed the contents of the plaintiff’s Amended Statement of Claim. To my reading, there were only two causes of action being pursued, and the plaintiff’s testimony seemingly amounted to a withdrawal of both those causes of actions.
[9] Paragraphs 4-10 of the Amended Statement of Claim set out the material facts upon which the plaintiff relies in support of his claims. In brief, the plaintiff alleged that on August 27, 2010, he attended the property to find his belongings in the hallway outside of the unit, and when the plaintiff attempted to remove his property (including his cats), Vitali committed the assault upon him and the plaintiff was forced to leave the premises. The plaintiff further alleged that he spoke to the property superintendent and made arrangements to retrieve his three cats several hours later, but when he ultimately arrived, one of his cats named Pony was missing and has never been found.
[10] Paragraph 11 of the Amended Statement of Claim explicitly sets out the causes of action being pursued by the plaintiff. The exact contents of paragraph 11 are as follows:
“The plaintiff asserts the material loss, the pain due to the physical assault and the severe emotional trauma caused by the assault and the loss of a longtime pet, was caused solely by the illegal actions of the defendants, Mr. Vytrykouch, and the corporation, and are therefore in law responsible.
The particulars of said responsibility due to their actions are as follows:
(a) The illegal physical assault is contrary to the Criminal Code of Canada and therefore speaks for itself.
(b) The defendants were also in contravention of the Residential Tenancies Act under chapter 17, S. 25, S. 26 (1), (2), (3), and S. 41 (2), (3).”
[11] Accordingly, the damages sought by the plaintiff (including alleged “severe emotional trauma” caused by the loss of Pony) were allegedly a direct result of (a) a physical assault, and (b) a breach of the provisions of the Act. No other cause of action is pleaded.
[12] As stated above, the plaintiff’s trial evidence amounted to a withdrawal of those causes of action. As such, at the conclusion of the plaintiff’s testimony I required some clarification, and inquired whether he was, in fact, seeking relief arising from any other causes of action which, at least on the face of the Amended Statement of Claim, did not appear to be pleaded.
[13] In response, the plaintiff advised that he was in fact seeking damages arising out of the defendants’ negligence, and specifically the manner in which the defendants oversaw the removal of his belongings on August 27, 2010 which led to Pony disappearing from the unit through one of two doors which the plaintiff alleges remained open on that date.
[14] The defendants took the position that negligence had never been pleaded during the entire 6.5 year lifespan of this proceeding, and as such they would oppose any effort on the part of the plaintiff to further amend his Statement of Claim at this late stage. The plaintiff then confirmed that he would formally seek leave pursuant to Rule 26.01 of the Rules of Civil Procedures to further amend his claim and plead negligence. The plaintiff relied upon the evidence he and his witnesses had already given at trial in support of his motion, and the parties agreed to “roll in” argument of the plaintiff’s motion with their closing submissions at the conclusion of the trial.
[15] The plaintiff’s proposed amendments are set out in new paragraphs 11(c)-(f). The contents of those paragraphs are as follows:
(c) The defendants knew the cats were in the apartment, having allowed them to stay, and agreeing to feed them until the plaintiff returned on August 27, 2010 to retrieve them and his household belongings
(d) Knowing the cats were in the apartment and agreeing to allow them to stay for these two days, the defendants owed the plaintiff a duty of care to take reasonable precautions to ensure their safety.
(e) The defendants were in breach of that duty of care in keeping both the front door to the apartment and the balcony door open, allowing one of the cats, Pony, to escape even after the plaintiff asked twice for the doors to be closed;
(f) A reasonable person would be aware that if one of the plaintiff’s pets went missing, he would suffer mental injury as a result.
Limitations Act
[16] Pursuant to section 5(1)(a) of the Limitations Act 2002, S.O. 2002 C. 24 (the “Limitations Act”) a claim is discovered on the earlier of the day upon which a person with the claim first knew, or a reasonable person with the abilities and in the circumstances of that person, first ought to have known,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of a person against whom the claim was made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.
[17] Section 5(2) of the Limitations Act and the jurisprudence developed thereunder is clear that a person with a claim shall be presumed to have known of the matters referred to above on the day the act or omission upon which the claim is based took place unless the contrary is proved. This is a presumption that can be rebutted by a plaintiff with necessary evidence.
[18] As the Court of Appeal for Ontario held in Miaskowski v. Persaud 2015 ONSC 758 (C.A.), a plaintiff is presumed to have discovered the material facts upon which his/her claim against a defendant is based on the day the accident took place. There is an obligation upon a plaintiff to act with due diligence in determining if he/she has a claim. No limitation period will be tolled while a plaintiff sits idle and takes no steps to investigate any of the matters referred to in section 5(1)(a) of the Limitations Act.
[19] A plaintiff is not required to possess a comprehensive understanding of his/her potential claim in order for the limitation period to commence. As held by the Court of Appeal for Ontario in Lawless v. Anderson 2011 ONSC 102 (C.A.), “the question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant.”
[20] Discoverability is thus a fact-based analysis. The discovery of a claim does not depend upon a plaintiff’s knowledge that his/her claim is likely to succeed, or awareness of the totality of a defendant’s wrongdoing. Knowledge of the material facts, and not the elements of a cause of action, will inform the Court’s assessment of the commencement of a limitation period. A plaintiff must show that he/she was both not subjectively aware of the factors set out in section 5(1)(a) of the Limitations Act, and that a reasonable person “with the abilities and in the circumstances of the person with the claim” would also not have been aware of these factors. In other words, the plaintiff bears the onus of leading evidence to displace both the objective and subjective components of the tests set out in section 5(1)(a) of the Limitations Act.
[21] In argument, the plaintiff properly conceded that based upon his trial evidence, there was no dispute that on or about August 27, 2010, he had discovered and was aware of all material facts upon which his potential negligence claim was based.
[22] The plaintiff relied upon case law which dealt with the “special circumstances” doctrine in support of his request for leave to further amend his claim. As held by the Court of Appeal for Ontario in Joseph v. Paramount Canada’s Wonderland 2008 ONCA 469, there is no provision in the Limitations Act that refers to the doctrine of special circumstances, or allows the Court to extend or suspend the running of a limitation period based upon special circumstances.
[23] The issue thus boils down to whether (a) the new amendments were merely inserted by way of clarification of the original Statement of Claim, and/or (b) there were sufficient material facts originally pleaded by the plaintiff which, liberally construed, could nevertheless support a cause of action in negligence against the defendants.
[24] In my view, the plaintiff cannot meet his burden. The original material facts relating to the alleged assault upon the plaintiff cannot support a theory that the defendants were negligent in their removal of the plaintiff’s property. As held by R.S.J. Pierce in Goodship v. Hergott, 2009 43647 (ONSC), a “pleading of battery is a separate and distinct tort from negligence”, and “the test for battery is distinct from the test for negligence.”
[25] The original material facts relating to the breach of the provisions of the Act, and in particular section 41, also do not support a theory that the defendants were negligent in their removal of the plaintiff’s property. Section 41 of the Act prescribes obligations and restrictions upon a landlord when it seeks to dispose of an evicted tenant’s property. Specifically, a landlord is entitled to “sell, retain for its own use or otherwise dispose of property” if the unit was vacated in accordance with, inter alia, an order of the Landlord and Tenant Board (the “Board”) terminating the tenancy or evicting the tenant (which was, as explained later in these Reasons, the case here). In such circumstances, a landlord cannot sell, retain or otherwise dispose of a tenant’s property before 72 hours has elapsed from the enforcement of the eviction order, and the evicted tenant’s property must be made available to be retrieved “at a location close to the unit” within the 72 hours from the enforcement of an eviction order. As long as a landlord complies with its obligations under section 41 of the Act, it will not be liable to any person for selling, retaining or otherwise disposing of a tenant’s property.
[26] The plaintiff does not consider Pony to be his “property”, but his “family member”. As admitted by the plaintiff during his testimony and in closing submissions, he is not relying upon section 41 of the Act to support his claim that the defendants were negligent in their removal of his belongings from the unit.
[27] There are no material facts pleaded in the original claim which could support a claim in negligence against the defendants. Ironically, the particulars raised by the plaintiff in his new paragraphs 11(c) through 11(f) are exactly the type of facts which could, in theory, support a finding of a duty of care and a breach of that duty. Their absence from the original claim only serves to highlight the fact that the new amendments are simply out of time.
[28] Accordingly, for the above reasons the plaintiff’s motion to amend is dismissed.
The Balance of the Plaintiff’s Claim
[29] There is no claim in negligence to determine. The plaintiff withdrew his claim for assault. While the plaintiff originally stated that he was not seeking damages arising from the defendants’ alleged breaches of the Act, in closing submissions the plaintiff further clarified his position and maintained that he was still pursuing a claim for the loss of the value of his personal belongings due to the defendants’ alleged breaches of the Act.
[30] The disposition of this cause of action requires an assessment of the timing of the actions of the defendants, and in particular a determination of whether the defendants gave the plaintiff the required 72 hours before any continued retention or disposition of the plaintiff’s property took place.
[31] I must state that neither of the defendants are the plaintiff’s landlord. The residential apartment building is owned by a separate party, and thus the defendants were, at most, the landlord’s authorized agents acting in the course of their duties.
[32] The following facts are essentially not in dispute:
● On April 30, 2010, the plaintiff provided H&R with written notice that he was terminating his tenancy of the unit effective June 30, 2010.
● The defendants accepted the plaintiff’s notice of termination, and intended to show the plaintiff’s unit to other prospective tenants.
● H&R showed the plaintiff’s unit to a prospective tenant on May 5, 2010, and that prospective tenant applied to rent the unit that same day. A deposit was provided.
● On May 5, 2010, the plaintiff left a voice mail message at the management office attempting to rescind his notice to terminate the tenancy. As H&R had already agreed to lease the unit to the prospective tenant, H&R ultimately refused to accept the plaintiff’s attempt to rescind the notice.
● H&R was forced to bring an application before the Board seeking an order terminating the plaintiff’s tenancy.
● By Order dated July 20, 2010, the Board ruled in favour of H&R and terminated the plaintiff’s tenancy.
● The prospective tenant was scheduled to move into the unit on September 1, 2010.
● On August 24, 2010, the defendants placed a notice on the unit door indicating that the Sheriff would be attending on the following day (August 25, 2010) to evict the plaintiff. The plaintiff claims that he never saw this notice.
● The plaintiff was evicted from the unit on August 25, 2010.
● The following day (August 26, 2010), H&R posted a Notice of Abandoned Property Upon Eviction addressed to the plaintiff, which cited sections 41(2) and 41(3) of the Act and asked the plaintiff to remove his belongings from the residential complex by August 28, 2010 (as the plaintiff’s items would be stored on the premises).
[33] As stated, the events of August 27, 2010 are disputed between the parties. During his testimony, the plaintiff was laser focused on his version of the events on that day, and remained adamant throughout that he had made arrangements with the building superintendent (who was not called as a witness) to attend later on August 27, 2010 and retrieve his cats.
[34] As the only remaining cause of action is whether the defendants complied with their obligations under the Act, the events of August 27, 2010 are effectively moot. The plaintiff’s tenancy was properly terminated by order of the Board, the eviction took place on August 25, 2010, the plaintiff’s belongings were kept in storage (i.e. at “a location close to the rental unit”), and the defendants gave notice to the plaintiff that he was to remove his belongings by August 28, 2010, ie. 72 hours from the enforcement of the eviction.
[35] Regardless of whether Vitali precluded the plaintiff from entering his unit on August 27, 2010 (which allegedly arose out of the Vitali’s concerned that the plaintiff removed a firearm from the unit, albeit in a locked safe), the bottom line is that the plaintiff’s belongings were kept on site until August 28, 2010 and for approximately 30 days thereafter. The plaintiff’s property was maintained in storage on the premises throughout the month of September 2010, and according to Vitali most if not all of the property had been removed from storage by the plaintiff by September 30, 2010.
[36] The notices provided by the defendants advised the plaintiff to contact H&R, yet the plaintiff testified that he chose to contact the superintendent. While the superintendent may technically be an employee of the landlord, the superintendent has no authority to act on behalf of the landlord for the purpose of complying with the obligations under section 41 of the Act. As stated, the superintendent was not called as a witness at trial. The plaintiff admitted in cross-examination that he never contacted H&R or the landlord after August 25, 2010.
[37] I find that the defendants followed and complied with their statutory obligations under section 41 of the Act. Regardless of the events of August 27, 2010, the plaintiff’s belongings were available for removal during the 72 hour period and beyond. The plaintiff himself attended the premises to remove his belongings.
[38] The plaintiff knew that the Board’s Order terminating the tenancy could be enforced by eviction any time after July 20, 2010. In my view, by remaining on site and refusing to vacate the unit, the plaintiff took a calculated risk that an eviction process would ensue, and when it did, the defendants did not breach the relevant provisions of the Act.
[39] Accordingly, the plaintiff’s action is dismissed.
The Counterclaim
[40] The plaintiff remained in the unit for the months of July and August, 2010. He did not pay rent during those months. The defendants counterclaim for the sum of $1,866.73 representing the two months’ arrears.
[41] A copy of the lease agreement between the plaintiff and the landlord/owner was not produced at trial. At paragraph 3 of the Statement of Defence and Counterclaim, H&R clearly states that it is not the landlord/owner of the property.
[42] I have no basis upon which to conclude that H&R has standing to claim the two months’ arrears, which presumably is a loss suffered by the owner/landlord. There is no evidence before me that the lease (or the right to collect rent thereunder) was assigned by the owner/landlord to the defendants.
[43] Accordingly, the counterclaim is also dismissed.
Costs
[44] I would urge the parties to exert the necessary efforts to try and resolve the costs of this motion, and the proceeding itself.
[45] If such efforts prove unsuccessful, the parties may exchange written costs submissions (totaling no more than four pages including a Costs Outline) in accordance with the following schedule:
(a) the defendants may serve and file their costs submissions within 10 business days of the release of these Reasons.
(b) the plaintiff shall thereafter have an additional 10 business days from the receipt of the defendants’ costs submissions to deliver his responding costs submissions.
Diamond J.
Released: February 5, 2018
COURT FILE NO.: CV-11-433639
DATE: 20180205
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LLOYD FRENCH
Plaintiff/Defendant by Counterclaim
– and –
H&R PROPERTY MANAGEMENT LTD. and LLOYD FRENCH
Defendants/Plaintiff by Counterclaim
REASONS FOR DECISION
Diamond J.
Released: February 5, 2018