Court File and Parties

Court File No.: CV-24-00095510-0000, CV-24-00095664-0000 Date: 20241004 Superior Court of Justice – Ontario

Re: Bonny Bunda, Applicant And Andrew Carry, Respondent

And Re: Andrew Carry, Applicant And Bonny Bunda and Stephanie Bunda, Respondents

Before: Justice R. Ryan Bell

Counsel: William Denham, for Bonny Bunda Cheryl Letourneau, for Andrew Carry No one appearing for Stephanie Bunda

Heard: August 22, 2024

Endorsement

Overview

[1] From March to August 2019, Bonny Bunda, Andrew Carry, and Stephanie Bunda (Ms. Bunda’s daughter to whom Mr. Carry was married), resided together at 7262 Third Line Road, Kars. Mr. Carry and Stephanie Bunda later moved into a mobile home on the property. They have since separated.

[2] Ms. Bunda, Mr. Carry, and Stephanie own the property as tenants-in-common. The mortgage on title is in the name of all three parties. On April 1, 2022, property insurance was obtained for the property in the names of the three parties.

[3] On May 17, 2022, there was a fire at the primary residence on the property where Ms. Bunda was living, which caused significant damage and loss of property.

[4] On October 12, 2022, the insurer – Commonwealth – paid Ms. Bunda an initial insurance settlement for the loss of personal property as a result of the fire in the amount of $101,571.10. In November 2022, Ms. Bunda paid a total of $5,000 to Mr. Carry and her daughter to compensate them for the items they owned and stored at the residence which were lost or damaged because of the fire. The $5,000 was paid in two separate e-transfers to Stephanie. Stephanie then sent an e-transfer of $1,000 to Mr. Carry. The remaining $4,000 was shared jointly between Stephanie and Mr. Carry as compensation for their joint items.

[5] In December 2022, an independent adjuster was hired to assess the matter. [1] Following the assessment, the insurer agreed to a further payment of $59,129.32. for loss of personal property. Of this amount, the adjuster claimed $14,782.33 in respect of their fees, leaving a balance of $44,346.99.

[6] The parties have not been able to agree on the release of the funds, which are currently being held by Caza Saikaley S.R.L./LLP in trust pending the outcome of these proceedings.

[7] In her application, Ms. Bunda seeks an order releasing approximately two-thirds of the insurance proceeds currently held in trust by Caza Saikaley to her, with the balance continuing to be held in trust or paid into court pending the outcome of an action to be brought by Mr. Carry in the Small Claims Court. Stephanie has relinquished any interest she may have in the insurance proceeds to her mother. In support of her position, Ms. Bunda relies on email correspondence sent by counsel for Mr. Carry, in which counsel states that Mr. Carry is claiming $14,192.53 of the insurance proceeds.

[8] In his application, Mr. Carry seeks an order that all the funds currently held in trust by Caza Saikaley be paid into court, a declaration that the insurance proceeds belong to Ms. Bunda, Mr. Carry, and Stephanie Bunda, and an order directing a reference on the issue of the distribution of the insurance proceeds as among the parties. Mr. Carry argues that Ms. Bunda should not be permitted to rely on the email correspondence from his counsel because it was a without prejudice communication in furtherance of settlement negotiations.

[9] For the following reasons, Ms. Bunda’s application is granted, and Mr. Carry’s application is dismissed. Of the funds currently held in trust, $30,154.46 shall be released to Ms. Bunda, and $14,192.53 shall be paid into court. Either Ms. Bunda or Mr. Carry may commence proceedings in the Small Claims Court regarding their entitlement to the funds paid into court.

Ms. Bunda is entitled to $30,154.46 of the funds currently held in trust

[10] I find that Ms. Bunda is entitled to $30,154.46 of the funds currently held in trust by Caza Saikaley. My finding is based on the following unequivocal statement in counsel’s email to Ms. Bunda of February 21, 2024:

I had my e-mail with the list from Mr. Carry bounce back from you so I have split it and I will send it to you in two parts.

In terms of reimbursement for losses from the fire, we are actually seeking $14,192.53 and not the $22,080.20. I was waiting to confirm with Mr. Carry whether his calculations were of replacement cost or cash value. I have the answer now. We are seeking the cash value cost for these items of $14,192.53 and not the replacement cost.

[11] The “list” referred to in the email is a 92-page “Detail by Room” document, prepared by the adjuster, highlighted by Mr. Carry to identify the items he believes belonged to him. In his affidavit, Mr. Carry states that he provided the list “in an effort to resolve the issue” and that the list was provided on a without prejudice basis.

[12] Although the email is not marked “without prejudice”, the phrase is neither required nor conclusive; it is the substance and context of the communication that must be considered. The purpose of the email is to clarify what Mr. Carry is “seeking” – in other words, what he is claiming and not what he would be prepared to settle for – and to support that claim by providing his highlighted list. The purpose of the email is also to clarify that Mr. Carry is seeking the cash value for the highlighted items, not the replacement cost. Ms. Bunda is entitled to rely on the email because it is not a without prejudice communication.

[13] Given Mr. Carry’s confirmation in February that he maintains he is entitled to $14,192.53 of the insurance proceeds currently held in trust, there is no reason not to disburse the remaining amount to Ms. Bunda (recognizing that Stephanie has relinquished her share of the proceeds to her mother). Mr. Carry’s claim, if entirely successful, will not exceed $14,192.53.

[14] Of the funds currently held in trust, $30,154.46 shall be released to Ms. Bunda, and $14,192.53 shall be paid into court.

Entitlement to the remaining funds should be determined at a trial in the Small Claims Court

[15] The entitlement to the remaining funds paid into court shall be determined at a trial in the Small Claims Court. Either Ms. Bunda or Mr. Carry may commence that proceeding.

[16] In my view, a Small Claims Court trial is preferable to a reference for two reasons. First, the amount in dispute is within the jurisdiction of the Small Claims Court: Small Claims Court Jurisdiction, O. Reg. 626/00, s. 1(1).

[17] Second, it is the longstanding policy of this court to try cases if possible, and avoid references: Kew v. Konarski, 2020 ONSC 4677, at para. 103. Rule 54.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that a judge may direct a reference where “a prolonged examination of documents or an investigation is required that, in the opinion of the judge, cannot conveniently be made at trial.” Paragraph (b) does not justify a reference in this case. The parties have a 92-page document that lists the items present in the house at the time of the fire and their value. Mr. Carry has highlighted the items on that list that he claims he owed and has confirmed that he claims the cash value for these items, not the replacement cost. The issue at trial will not be the calculation of damages, but rather the determination of ownership, based on the evidence led at trial. The determination of the parties’ credibility and the credibility of other witnesses is within the sole purview of the trier of fact, and it would be inappropriate to delegate this function to a referee: see Rochon v. Commonwell Mutual Insurance Group, 2021 ONSC 2880, at paras. 41-45.

[18] I would distinguish Kew, on which Mr. Carry relies. In that case, the trial judge ordered a reference to determine the plaintiff’s entitlement to monetary damages and to quantify those damages. Here, the valuation of the items has already been done.

[19] The proceedings in Small Claims Court may be commenced by either Ms. Bunda or Mr. Carry. In my view, there is no reason to require that Mr. Carry be the plaintiff in that proceeding.

Conclusion

[20] Ms. Bunda’s application is granted. Mr. Carry’s application is dismissed. I order that, of the funds currently held in trust by Caza Saikaley, $30,154.46 shall be released to Ms. Bunda, and $14,192.53 shall be paid into court, pending the outcome of the litigation commenced in the Small Claims Court or the agreement of the parties.

[21] Ms. Bunda and Mr. Carry have each uploaded their bill of costs. They are encouraged to reach an agreement on costs of the applications. In the event they are unable to agree, they may make written submissions, not to exceed three pages. Both parties are to deliver their costs submissions within 10 days. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Justice R. Ryan Bell Date: October 4, 2024

COURT FILE NO.: CV-24-00095510-0000, CV-24-00095664-0000 DATE: 20241004 ONTARIO SUPERIOR COURT OF JUSTICE RE: Bonny Bunda, Applicant AND Andrew Carry, Respondent AND RE: Andrew Carry, Applicant AND Bonny Bunda and Stephanie Bunda, Respondents COUNSEL: William Denham, for Bonny Bunda Cheryl Letourneau, for Andrew Carry No one appearing for Stephanie Bunda ENDORSEMENT Justice Ryan Bell Released: October 4, 2024

[1] Ms. Bunda says she hired the adjuster; Mr. Carry says the adjuster was hired by the three of them. Nothing turns on this conflict in the evidence.