Court File and Parties
COURT FILE NO.: CV-17-2899 DATE: 20190618 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Steven James Bryans and Lorinda Bryans, Plaintiffs AND: Patty Elizabeth Alpe and the Estate of the late Robert Joseph Bryans, Defendants
BEFORE: C. Smith, J
COUNSEL: B. Sherman, Counsel for the Plaintiffs A. Elrick, Counsel for the Defendants
HEARD: May 14, 2019
REASONS FOR JUDGMENT
(Motion for Summary Judgment)
CORRECTED - the first sentence in paragraph 36 has been deleted.
Overview
[1] This is a motion for summary judgment under Rule 20 brought by the plaintiffs, Stephen James Bryans and Lorinda Bryans for judgment against the defendants, including damages in the amount of $245,000, an award of punitive and exemplary damages in the amount of $50,000, prejudgment or post-judgment interest pursuant to the Courts of Justice Act and costs on a substantial indemnity scale.
[2] The parties are in agreement that this is an appropriate case for summary judgment pursuant to the Rule 20.
[3] The defendant's position that the plaintiffs is not entitled to damages is based on their analysis of what happens if the Residential Tenancies Act applies to the agreement in question, and further, what happens if the Residential Tenancies Act does not apply to the agreement in question.
1. Background
[4] The late Robert Joseph Bryans and his wife were together the owners of a farm property containing two separate residences located at 4021 Edgerton Road, Blackstock, Ontario (the property). The plaintiffs, Steven and Lorinda Bryans, resided at the subject property with Robert in the second residence commencing in 2003. From that time until Robert's death in 2016, the plaintiff's helped Robert maintain the property, and assisted in the farming operations in exchange for living there.
[5] Robert Bryans died in 2016; his wife having pre-deceased him by some three years. Following his death, all parties learned that Robert's Last Will and Testament dated May 29, 2014 provided, among other things, that the property was to be bequeathed in its entirety to the defendant, Patty Elizabeth Alpe.
[6] In October or November of 2016, the defendant, Patty Alpe, met with the respondent, Steven Bryans and presented Mr. Bryans with a typed document setting out the terms of an agreement regarding the use and care of property. The document prepared by Ms. Alpe provided that the plaintiffs would be allowed to live on the property rent free for ten years through May 2027 and required that the plaintiffs require certain duties such as winding up the farming operation, selling the animals, selling the hay, cleaning up the property and assisting in the construction of a garage.
[7] The parties are at ad idem that the document in question could be considered a contract, and further, that there was part performance of that contract which tends to enhance the validity of the contract.
[8] Some friction developed between the plaintiffs, Steven Bryans, and Mr. Nathan Alpe, the son of the defendant, Patty Alpe, in the spring of 2017. The plaintiffs, Steven Bryans, asserts that some of his personal belongings were damaged or destroyed by Mr. Nathan Alpe while Mr. Nathan Alpe and the defendant, Patty Alpe, maintain that a heated verbal argument between the plaintiffs, Steven Bryans, and Mr. Nathan Alpe interfered with their lawful and peaceful enjoyment of the property in question, such as to constitute a breach of the contract. In May of 2017, the defendant Patty Alpe, decided to unilaterally terminate an agreement between the parties and instructed her lawyer to send a letter to the plaintiffs demanding that they relinquish control of the property and provide vacant possession on or before August 31st, 2017.
[9] The plaintiffs acquiesced to the defandant's demands that they deliver vacant possession of the property in August of 2017, at which point they purchased and took possession of a new home in the area where they have been living ever since.
[10] This action was commenced on October 24th, 2017.
[11] All parties are in agreement that this court has jurisdiction over this matter.
2. Issues
[12] In my view, the issues in this matter are as follows:
Is this an appropriate case for determination by Motion for Summary Judgment pursuant to the provisions of Rule 20;
If there a genuine issue requiring a trial with respect to the parties positions that the Residential Tenancies Act applies; and
Is there a genuine issue requiring a trial with respect to the Plaintiff's claim for damages and the quantum of said damages.
3. Results
[13] I have determined that this is an appropriate case for a determination by Motion for Summary Judgment and I have also determined with regards to issues (1) through (4) there is no genuine issue requiring a trial.
For reasons that follow, there will be judgment for the plaintiffs in this matter, including an award for damages for breach of contract.
4. Analysis
Test for Summary Judgment
[14] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194, outlines when a court may grant summary judgment. In the case of Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, the Supreme Court of Canada held at paragraph 23 that the "civil justice system is premised upon the value that process of adjudication must be fair and just". At paragraphs 27 and 28 the court further held as follows:
There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.
This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
[15] At paragraph 49, Karakatsanis, J held as follows:
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.
[16] In Hyrniak, at paragraph 57, the court held that,
On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact- finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.
[17] The court, in Hyrniak, went on to develop a "road map/approach" to the Motion for Summary Judgment and held as follows as paragraph 66,
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[18] There can be no doubt that it is in the interest of justice and to all parties to a dispute that the matter be resolved on the most timely, cost effective basis which the summary judgment process can provide. That said, any process that does not give the presiding judge confidence in his or her conclusions can never be the appropriate or indeed proportionate way to resolve a dispute.
In my view, the focus should be on whether or not a trial is required, as opposed to what kind of evidence might conceivably be introduced at trial. In other words, is the evidence before such that I can be confident that I can decide the matter fairly and justly?
Onus on the Motion
[19] In a Motion for Summary Judgment, the motion is on the moving party to establish a prima facie case showing there is no genuine issue for a trial. The onus then shifts to the responding party to show that there is a genuine issue for trial. In doing so, the responding party must, in the judicial vernacular, "put their best foot forward" or "bid trump". The responding party cannot simply assert that there is further evidence to be heard at trial.
[20] Based on the facts before me, I find that summary judgment is a proportionate, more expeditious and less expensive means to obtain a just result.
[21] I also find, based on the materials before me, and the admissions of counsel that there is no genuine issue regarding a trial. The Plaintiffs herein are entitled to summary judgment.
[22] In the course of the hearing of this matter much was made by counsel for both parties on the subject of whether or not the Residential Tenancies Act applied in this matter. The court was advised that because the property was a working farm at the time in question then the provisions of s. 5(b) of the Residential Tenancies Act precludes application of the Act. On the other hand, the court has also been advised that because the agreement reached between the parties in the fall of 2017 provided for the winding up of the farming operations on the property, then the Residential Tenancies Act does apply. Questions also arose about whether the Residential Tenancies Act would apply in a case where there was more than one residence on the subject property and whether or not actions of the parties herein outlined above involving interference with the personal belongings of the other party, or conversely, engaging in heated verbal arguments constituted interference with the other parties use and enjoyment of the property such as to justify termination of the so called tenancy or further breach of contract.
[23] I am not prepared to find that a single altercation of the type complained of by the Plaintiffs herein constitutes substantial interferene with the owner's ability to possess and enjoy her property such as to justify a breach of any contract, lease or otherwise.
[24] The Defendant asserts that the Residential Tenancies legislation does not apply and asserts "in a case where the leased premises include, in addition to the accommodation structure, and other building or buildings and other lands not used for "accommodation purposes", then this combned use would render the leased premises "non-residential". The Defendant cites the case of Petrolo v. Winstone, [1997] O.J. No. 1302 GenDiv in support of this proposition.
[25] It is common ground that the property includes farm buildings in the form of barns and other outbuildings, all of which would appear to support the Defendant's position that this is not a residential property in the sense that the word is used in the Residential Tenancies Act and related legislation. Both parties refer to the proeprty as a farm in their materials and outline the history of the property as always having been used for farming purposes. In my view, a substantial rural property consisting of tilled airable land, outbuildings, barns and a "farm house" is a farm, whether operational or not. I find that the property in question was a farm at all relevant times, even after the Plaintiffs disposed of the farm animals and the hay. I note, with interest, that the typed document prepared by the Defendant and supplied to the Plaintiffs in October of 2016 setting out the expectations of the parties regarding the Plaintiffs's occupation of the property refer to the accommodation on the property as a "farmhouse". All of that being said, I am of the view that the issue of whether or not this property is a residential property such as to bring it within the ambit of the Residential Tenancies Act or any other Landlord Tenant legislation is a red herring. The real point is whether or not the document prepared by the Defendant that allegedly governed the affairs of the parties herein constituted a contract.
Was it a Contract
[26] Both parties are ad idem that the document in question could be considered a contract. The document in question was prepared by the Defendant. Clearly comports with the traditional notions of contract law involving offer and acceptance. The document, as prepared by the Defendant, and which is titled "Deal" outlines what the Defendnat expects the Plaintiffs to do in furtherance of the "Deal", and in consideration for those things being done provides for the Plaintiffs to live rent free in the so-called farmhosue for ten years. The Plaintiffs's evidence is that he complied with the offer from the fall of 2016 until he was obliged and required to leave the subject property by the Defendant in mid-2017. That constitutes acceptance. While I appreciate that the Defendant indicated in the document that she would like the "deal signed so there are no misunderstandings", the fact is both parties complied with the terms of the document for a period of approximately ten months without the document being signed. The Plaintiffs gave evidence that he did not bother signing the document becauase in his view he was dealing with family which obviated the need for formal signatures. There is no evidence before the court that the Defendant took any further steps to require signatures between the time she provided the Plaintiffs with the document and the time that the Platiniff was ejected from the property. In those circumstances, I find that the document in question constituted a contract binding on the respective parties.
[27] Both parties are also ad idem about the fact that there was partial performance of the conditions of the contract by the Plaintiffs such as to validate the notion of this agreement being a contract as it pertained to the parties. The Plaintiffs did dispose of the animals and did sell the hay as envisioned by the contract. The Plaintiffs did clean out the barns and garage and disposed of the scrap materials as envisioned by the contract. The garage was, in fact, constructed with not insignificant assistance in terms of both time and materials by the Plaintiffs. On this point, the Supreme Court of Canada in Hill v. Nova Scotia (Attorney General), 1997 Carswell NS 10, held as follows at paragraphs 9, 10 and 11.
Where the terms of an agreement have already been carried out, the danger of fraud is averted or at least greatly reduced. To borrow a phrase from the law of tort, the thing speaks for itself. In the present case, for example, it does not matter so much what was said. What is critical is what was done; and what was done was the construction and maintenance of access ramps. There is no mistaking the purpose for which those ramps were constructed: it was to allow Mr. Hill a way of reaching and crossing the highway. Accordingly, in this instance strict adherence to the literal terms of the writing requirement would not serve the purpose for which it was devised. Fraud would not be prevented; rather, the appellants would be defrauded.
It is for this reason that equity evolved the doctrine of part performance:
[This doctrine] was evoked when, almost from the moment of passing of the Statute of Frauds, it was appreciated that it was being used for a variant of unconscionable dealing, which the statute itself was designed to remedy. A party to an oral contract for the disposition of an interest in land could, despite performance of the reciprocal terms by the other party, by virtue of the statute disclaim liability for his own performance on the ground that the contract had not been in writing. Common Law was helpless. But Equity, with its purpose of vindicating good faith and with its remedies of injunction and specific performance, could deal with the situation. The Statute of Frauds did not make such contracts void but merely unenforceable; and, if the statute was to be relied on as a defence, it had to be specifically pleaded. Where, therefore, a party to a contract unenforceable under the Statute of Frauds stood by while the other party acted to his detriment in performance of his own contractual obligations, the first party would be precluded by the Court of Chancery from claiming exoneration, on the ground that the contract was unenforceable, from performance of his reciprocal obligations; and the court would, if required, decree specific performance of the contract. Equity would not, as it was put, allow the Statute of Frauds “to be used as an engine of fraud.” This became known as the doctrine of part performance -- the “part” performance being that of the party who had, to the knowledge of the other party, acted to his detriment in carrying out irremediably his own obligations (or some significant part of them) under the otherwise unenforceable contract. [Steadman v. Steadman, supra, at p. 558.]
Quite simply equity recognizes as done that which ought to have been done. A verbal agreement which has been partly performed will be enforced. See Daigle v. Clair (Village of) (1986), 70 N.B.R. (2d) 129 (Q.B.), and Crabb v. Arun District Council, [1975] 3 All E.R. 865 (C.A.), per Lord Denning, at p. 872. That should be the result in this case.
As noted above, I have found that the document in question contstitutes a binding and enforceable contract between the parties.
Breach of Contract
[28] The Defendant drafted the document in question and supplied it to the Plaintiffs in the fall of 2016. At the time the Defendant acting as trustee for Mr. Bryans Sr.'s estate and knew that ultimately the subject property would be transferred to her in its entirety by the estate pursuant to the terms of her late father's Will. The documentary evidence placed before this court by both parties establishes very clearly that the Plaintiffs was advised by a letter from the estate solicitor dated May 24, 2017 that the significant distribution of property proceeds would be forthcoming. In fact, funds in the amount of $250,000 were made available to the Plaintiffs by the estate solicitor on May 30, 2017 upon execution by the Plaintiffs of the release of the Executor being the Defendant herein. Mention was made by the estate solicitor in her letter to the Plaintiffs of May 24, 2017 of the fact that the Defendant, in her capacity as Estate Trustee, had waived the fees she was entitled to for administering the estate which would have totaled some $81,522.92.
[29] The letter from the estate solicitor dated June 6, 2017 enclosing the bank draft representing the proceeds of the estate owing to the Plaintiffs also put him on notice that the Defendant referred in said letter as the registered owner of the property required vacant possession of the land on or before August 31, 2017. No explanation was provided to the Plaintiffs in that letter as to why he would no longer be permitted to reside at the property. I note though that the letter also promised the further sum of $10,000 from the Defendant's share of the residue of the estate upon receipt of vacant possession of the property. The Plaintiffs did ultimately vacate the property and was supplied with those funds in the form of a bank draft which the Plaintiffs has made a point of not cashing.
[30] The Plaintiffs also received a letter from the Defendant which appears to be her explanation for these developments. I note that the letter is undated but its contents seems to support the conclusion that it was written after the letters from the estate's solicitor detailed above were supplied to the Plaintiffs. I say that because the letter from the Defendant includes the phrase "Now that you have your fair share of money". In the letter, the Defendant refers to the terms of the agreement as between her and the Plaintiffs and makes reference to the notion that the Plaintiffs felt that the Plaintiffs said hurtful things to her, refers to the above-noted incident as between the Plaintiffs and his nephew Nate, which the Defendant describes in her letter to the Plaintiffs as a "verbal attack" and that it was that so-called "verbal attack" that caused the Defendant to conclude that the relationship would not work for the next ten years, which appears to be the reason why the Defendant ejected the Plaintiffs from the property.
[31] As noted above, I find that the argument between the Plaintiffs and his nephew Nate could not in any way amount to interference with the property owners' enjoyment of their property such as to justify termination of a lease under the provisions of the Residential Tenancies Act or related Landlord Tenant legislation, nor am I prepared to find those incidents as grounds for the Defendant's unilateral decision to terminate the contract in question as between herself and the Plaintiffs herein. I find that the Defendant did breach the contract she had with the Plaintiffs herein regarding management and possession of the subject property and that she did so without grounds such as to give rise to an entitlement to damages on the part of the Plaintiffs.
Damages
[32] The parties are ad idem that the contract was entered into by the parties in October or November of 2016 and was terminated with the provision of vacate possession by the Plaintiffs at the end of August 2017. The contract provided that the Plaintiffs would have possession of the farmhouse at the property on a rent-free basis for a period of ten years until May 31, 2017. As the contract was agreed to by the parties in October or November of 2017, I have chosen to use November of 2017 as the start date for the agreement, meaning that the agreement would run from then until May 2027, some 127 months. The Plaintiffs had possession of the property on the rent free basis for ten months which means that there is some 117 months that he was deprived of his rights under the contract by the Defendant's termination thereof to the extent of some 117 months. The Plaintiffs has provided the court with a modicum of evidence tending to support the notion that the appropriate monthly rent would be in the range of $1,500. I do not find that evidence particularly compelling given that it was essentially word of mouth evidence from an acquaintance regarding a particular property in the region in question. Rather, I prefer the evidence contained by the contract itself which set the quantum of rent at $1,200 per month. I find therefore that the quantum of general damages to which the Plaintiffs is entitled is for the period of 117 months at $1,200 per month for a total of $140,400. From that amount I would deduct the following:
It is clear from the contract that the parties envisioned building a garage on the property and splitting the costs of that as between them. The Defendant has supplied evidence to the effect that the cost of the garage was some $37,431.34. The Plaintiffs agreed to the terms of that contract so I credit the Defendant with one-half of that amount, some $18,715.67.
With respect to the steel recovered from the property by the Plaintiffs, I have been provided with documentation in the form of some 29 receipts indicating that the Plaintiffs disposed of steel of a value of $8,041.00. I note that the contract as written by the Defendant provides as follows "It may be a good thing to have someone come in and take away all the scrap metal. Right now scrap at $125 a ton would not be in your benefit to take the time to deal with it, just a thought." I take it from this that the Plaintiffs was interested only in getting rid of the material in question without regard for any potential returns. Given that the Plaintiffs took the trouble to actually remove the steel himself and to dispose of it accordingly, I will make no order regarding those funds in the amount of $8,041.00.
[33] The Plaintiffs has also advanced a claim for punitive damages as a result of the Defendant's breach of their contract. I have been provided with a copy of the decision of the Supreme Court of Canada in Whiten v. Pilot Insurance Company, 2002 SCC 18, [2002] 1 SCR 595. In that case Binnie, J writing for the majority held as follows at para. 78:
This, as noted, is a breach of contract case. In Vorvis, supra, this Court held that punitive damages are recoverable in such cases provided the defendant’s conduct said to give rise to the claim is itself “an actionable wrong” (p. 1106). The scope to be given this expression is the threshold question in this case, i.e., is a breach of an insurer’s duty to act in good faith an actionable wrong independent of the loss claim under the fire insurance policy? Vorvis itself was a case about the employer’s breach of an employment contract. This is how McIntyre J. framed the rule at pp. 1105-6:
When then can punitive damages be awarded? It must never be forgotten that when awarded by a judge or jury, a punishment is imposed upon a person by a Court by the operation of the judicial process. What is it that is punished? It surely cannot be merely conduct of which the Court disapproves, however strongly the judge may feel. Punishment may not be imposed in a civilized community without a justification in law. The only basis for the imposition of such punishment must be a finding of the commission of an actionable wrong which caused the injury complained of by the plaintiffs. [Emphasis added.]
This view, McIntyre J. said (at p. 1106), “has found approval in the Restatement on the Law of Contracts 2d in the United States”, which reads as follows:
Punitive damages are not recoverable for a breach of contract unless the conduct constituting the breach is also a tort for which punitive damages are recoverable. [Emphasis added.]
Applying these principles in Vorvis, McIntyre J. stated, at p. 1109:
Each party had the right to terminate the contract without the consent of the other, and where the employment contract was terminated by the employer, the appellant was entitled to reasonable notice of such termination or payment of salary and benefits for the period of reasonable notice. The termination of the contract on this basis by the employer is not a wrong in law and, where the reasonable notice is given or payment in lieu thereof is made, the plaintiffs — subject to a consideration of aggravated damages which have been allowed in some cases but which were denied in this case — is entitled to no further remedy . . . . Emphasis added.]
Wilson J., with whom L’Heureux-Dubé J. concurred, dissented. She did not agree “that punitive damages can only be awarded when the misconduct is in itself an ‘actionable wrong’”. She stated, at p. 1130:
In my view, the correct approach is to assess the conduct in the context of all the circumstances and determine whether it is deserving of punishment because of its shockingly harsh, vindictive, reprehensible or malicious nature. Undoubtedly some conduct found to be deserving of punishment will constitute an actionable wrong but other conduct might not.
[34] On the evidence before me, I cannot find that the actions of the Defendant breaching this contract can amount to an actionable wrong such as to give rise to punitive damages. That portion of the Plaintiff's claim is dismissed.
[35] Judgment for the Plaintiffs in the amount of $121,284.33, together with pre-judgment interest from the date proceedings were commenced and post-judgment interest from this date forward.
Costs
[36] I invite counsel to make written submissions as to costs. I would suggest that the successful party, the Plaintiffs, make submissions in writing no longer than three pages double spaced and that those submissions be supplied to the Defendant's counsel and to the Court, on or before June 30th, 2019. Thereafter, the Defendants shall have until July 10th, 2019 to file their own written submissions on the issue of costs, again limited to three pages double spaced. In the event that I do not receive any written submissions, I will make what I feel is the appropriate Order.
Smith J.