Court File and Parties
COURT FILE NO.: CV-23-00696400-00ES DATE: 20240930 SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF THE ESTATE OF BRUNO SIIMAN, deceased
RE: Andrew Gray in his capacity as Estate Trustee of the Estate of Bruno Siiman, Applicant AND: Michael Siiman and Liivia Siiman, Respondents
BEFORE: M.D. Faieta, J.
COUNSEL: Sabrina Saltmarsh and Rhea Matthew, for the Applicant Self-represented, Respondents
HEARD: June 28, 2024
Endorsement
[1] This Endorsement primarily addresses the Applicant Estate Trustee’s claim for occupation rent.
Background
[2] The background facts and the unnecessarily lengthy litigation history of this case are described in the contempt sentencing decision of Gilmore J. in Gray v. Siiman et al., 2024 ONSC 3624, paras. 2-21.
[3] In summary, the deceased, Bruno Siiman, died on December 31, 2021. He and his wife, who predeceased him, had three children. The Respondent Michael Siiman (“Michael”) is the deceased’s son. The Respondent Liivia Siiman (“Liivia”) is Michael’s daughter. They have resided with the deceased in his home (“the Property”) since about 2004. The Property is the sole asset of the Estate. The Applicant, Estate Trustee, is a friend of the family. The Applicant has been personally funding the ongoing Estate and Property expenses since the deceased’s death and expects to be reimbursed once the Property is sold and the Estate settled.
[4] Under the terms of the deceased’s Will, the deceased’s three children are the sole beneficiaries. The Estate is divided into eight shares and Michael will receive the largest share of 3.5 shares.
[5] The Respondents refused to vacate the Property as requested by the Applicant so that the Property could be sold, and the Estate administered on the grounds that it was the deceased’s wish that they remain in the Property until Liivia completed her university education which she commenced in about 2016.
[6] On March 3, 2022, the Applicant suggested to the beneficiaries that the Respondents could continue to live in the Property until probate was granted and the Property was listed for sale. Later that day, Michael sent the Applicant an email which stated “I want to buy out the house, Liivia has to finish her school, live in TO. …”.
[7] On September 29, 2022, the Applicant advised the beneficiaries that he had been granted probate and that he wished to proceed with the administration of the Estate by selling the Property as the other beneficiaries were not interested in a negotiated settlement and wished to have the Property sold.
[8] On October 5, 2022, Michael sent an email to the Applicant insisting that the Respondents remain in the Property until Liivia was finished her schooling.
[9] On March 16, 2023, this Application for, amongst other things, an order requiring the Respondents to vacate the property within 60 days and to pay occupation rent from January 1, 2022. On January 2, 2024, the Respondents were ordered to vacate the Property by February 16, 2024. The Respondents failed to do so. On March 13, 2024, the Applicant was granted leave to issue a Writ of Possession. The Respondents refused to vacate the Property. On April 30, 2024, the Writ of Possession was enforced, and the Respondents vacated the Property.
[10] The Applicant seeks an order for the payment of: (1) occupation rent; (2) utility expenses; and (3) expenses related to the enforcement of the Writ of Possession.
[11] At the outset of the hearing of this Application, the Applicant noted that Michael had been sentenced a few days earlier for contempt of court as a result of breaching an Order that prohibited him from communicating with various persons, including the beneficiaries. I dismissed the Applicant’s request that the court decline to hear from Michael because he had breached the contempt sentencing order as there was no affidavit evidence filed to support a finding that the contempt sentencing order had been breached.
Occupation Rent
[12] In Bluestone v. Dagarsho Holdings Ltd., [2004] O.J. No. 2654 (Ont. S.C.J.), Karakatsanis J., as she then was, stated at para. 26:
Occupation rent is an equitable remedy. The often-cited general principle of occupation rent is that "if a person is in occupation without a lease, although the relationship of landlord and tenant will not exist, the law will imply a contract for payment to the landlord or a reasonable amount for the use and occupation of his land": Young v. Bank of Nova Scotia (1915), 34 O.L.R. 176, 23 D.L.R. 854 (Ont. C.A.). The principle is based upon the presumption that the parties have agreed to reasonable compensation. That presumption can be rebutted by evidence that the parties intended that the occupation be without compensation. Occupation rent is also an appropriate measure of damages for trespass and unjust enrichment. [Emphasis added]
[13] In February 2023, the Respondents delivered to the Applicant a document entitled “Statement of Bruno Siiman”, dated January 14, 2018, purportedly signed by Bruno Siiman and witnessed by his wife, the late Maxine Siiman. It states:
I, Bruno Siiman, state that my son Michael Vello Simaan, his wife, my daughter-in-law, Maxine Siiman, and their daughter, my granddaughter, Liivia Siiman, who grew up in our Siiman family home can unequivocally live in our Guildwood Village home …until Liivia’s scholastic studies are completed, her education is very important to me, as was my own, and that of my three sons. The option of my son Vello and his family to buy the Siiman family Guildwood home at some point in the future is always open to them.
[14] Both Respondents state that Liivia’s education was important to the deceased and that he wanted the Respondents to continue to live in the Property until she finished her degree at the University of Toronto.
[15] Given that they rely on the Statement, the onus rests with the Respondents to establish its authenticity. The principles related to establishing authenticity of a document are described in Somerville National Leasing and Rentals Ltd. v. Vassileva, 2019 ONSC 269, at para. 11.
[16] The Applicant submits that the Statement is not authentic primarily for the following reasons: (1) even though the Applicant requested that the Respondent vacate the Property several times since 2022, the Statement was only identified and produced in February 2023; (2) the deceased did not bring this Statement to the attention of his other two sons during his life; and, (3) the language used in the Statement was not language used by the deceased nor in his writing style. The Applicant relies on the evidence of the two other beneficiaries as well as the evidence of Ann Jaanus, a friend of the deceased and his late wife, and who also witnessed his Will.
[17] The issue of the authenticity of the Statement has already been determined by Gilmore J., who in an Endorsement dated January 2, 2024, found that the Statement was not authentic. At paras. 15 and 31. Gilmore J. stated:
In February 2023 Michael retained Mr. Fuhr. He delivered to the Estate Trustee a “statement” allegedly signed by the deceased which purported to allow Michael and Livia to live in the home until Livia completed her studies at the University of Toronto. The other beneficiaries questioned the authenticity of the statement and the timing of its production. …
As for the statement produced by Michael which allegedly contains his father’s wishes with respect to how long Michael can stay, the statement cannot be given any weight by this Court given the circumstances under which it was produced. In any event, if I am wrong and the statement was written by his father, we are well past June 30, 2023, which is the date by which Livia was to have finished her university studies. I note that no evidence has ever been produced that Livia actually attended university at any time in 2022 or 2023.
[18] In my view, the test for issue estoppel outlined by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 is satisfied and Gilmore J.’s finding that the Statement cannot be given any weight governs. In any event, I agree with the views and conclusion of Gilmore J. on whether the Statement is authentic. Accordingly, I find that the Respondents have not rebutted the presumption that occupation rent should be paid.
[19] The Respondents state that the Property is 60 years old and was in a “rough state”. They allege that it was infested with rats and that the carpets were contaminated with feces and urine. The Respondents state that Michael spent $50,000 to make it habitable. I have difficulty accepting that the Respondents would want to remain in a home that was unhabitable. There is no evidence of this amount being spent nor a cross-application for recovery of these expenses. In any event, any repairs made to the Property done without notice to the Applicant, were unauthorized and thus unrecoverable: Mascia v. Tri-Star Disaster Recovery Inc., 2024 ONSC 1704, at para. 49.
[20] With respect to the amount payable for occupation rent of the Property, I rely on the uncontroverted appraisal of Bojun Richard Chen which establishes a rent of $3,300.00 per month as of December 30, 2021, being the date of the deceased’s death. Given that the Respondents occupied the Property for 28 months, I find that the amount of occupation rent to be paid by the Respondents to the Estate is $92,400.00.
Carrying Costs
[21] The Respondents have not paid occupation rent nor carrying costs of the Property during the 28 months that they lived there following the deceased’s death. Michael submits that he is content with paying carrying costs.
[22] On behalf of the Estate, the Applicant has incurred utility expenses, including natural gas, electricity, and water heater rental during the 28-month period of occupation, in the amount of $11,093.95. I find that the amount of carrying costs to be paid by the Respondents to the Estate is $11,093.95.
Other Damages
[23] Michael asserted that the Property was contaminated with mold and asbestos. Expert reports were obtained by the Applicant which show that there is no merit to these assertions. The Respondents shall pay to the Estate the costs incurred by the Applicant on behalf of the Estate in the amount of $2,774.15.
[24] The Applicant, on behalf of the Estate, incurred costs of packing, transporting, and storing the Respondents’ belongings which were left behind after they were evicted by the Sheriff from the Property. The total cost incurred was $3,373.73. The Respondents shall pay to the Estate these costs of $3,373.73.
[25] The Applicant, on behalf of the Estate, incurred costs to change the locks to the Property after the Respondents left. While Michael states that it was unnecessary to change all of the locks, in the circumstances, I find that it was reasonable to do so. The Respondents shall pay to the Estate costs of $1,563.11.
[26] The Applicant asserts that he has incurred interest charges of $8,549.00 on behalf of the Estate arising from the line of credit that he used to fund expenses related to the administration of the Estate. Other than a heavily redacted bank statement dated May 21, 2024, the Applicant has not provided bank or other records to support this claim and has simply baldly asserted that this amount is owed. This claim is dismissed for lack of supporting documentation.
Decision
[27] Order to go as follows:
(1) The Respondents shall pay to the Applicant the following amounts: (a) Occupation rent in the amount of $92,400.00. (b) Carrying costs of $11,093.95. (c) Other damages in the total amount of $7,710.99.
(2) The Applicant shall have pre-judgment and post–judgment interest pursuant to the Courts of Justice Act.
(3) The above amounts shall be paid to the Applicant from Michael’s share of the Estate.
(4) The Applicant seeks costs of $171,935.80 on a full indemnity basis in relation to this Application. The Applicant shall serve and file his costs submissions including any offers to settle within seven days. The Respondents shall serve and file their responding costs submissions including any offers to settle within fourteen days. The Applicant may file reply costs submissions by within twenty-one days. The total length of each costs submission shall be no more than three pages excluding offers to settle.
(5) The Respondents’ approval as to the form and content of this Order is dispensed with.