Jagodnik v Oudshoorn, 2015 ABQB 456

Court of Queen ’ s Bench of Alberta Citation: Jagodnik v Oudshoorn, 2015 ABQB 456 Date: 20160715 Docket: FL03 00929, FL03 37713 Registry: Edmonton Between: Olga Joan Jagodnik Plaintiff - and - Will Oudshoorn Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.M. Ross _______________________________________________________ I. Introduction [ 1 ] Two actions have been consolidated for

summary trial, a tort action in which the Plaintiff Olga Jagodnik sues the Defendant Will Oudshoorn for damages arising from a battery and a partition and sale application in relation to property held in their joint names. Liability is not in issue in relation to the tort action. The primary issue is the measure of damages, however there is an additional issue

regarding whether damages should be reduced by reason of provocation. The issue in relation to partition and sale is the parties’ interests in the property which has been in the Plaintiff’s exclusive possession for over 15 years. II. Suitability of

Summary Trial [ 2 ]

Summary trials are available under Rule 7.5 of the Rules of Court. The test for whether a

summary trial is appropriate was recently affirmed by the Court of Appeal in SHN Grundstuecksverwaltungsgesellschaft MBH & Co Seniorenresidenz Hoppegarten - Neuenhagen KG v. Hanne , 2014 ABCA 168 at para 9 : 1) Can the court decide disputed questions of fact on affidavits or by other proceedings authorized by the Rules for

summary trial?; and 2) Would it be unjust to decide the issues in such a way? [ 3 ] In considering whether it would be unjust to proceed by

summary trial, Alberta courts have considered the following factors from Duff v Oshust , 2005 ABQB 117 at para 24 (see e.g.: Bonsma v Tesco Corp , 2011 ABQB 620 at para 29 ; Manson Insulation Products Ltd v Crossroads C&I Distributors , 2013 ABQB 702 at para 23 ; and Enerflow Industries v Surefire Industries Ltd , 2013 ABQB 196 at para 26 ): 1. the amount involved; 2. the complexity of the matter; 3. its urgency; 4. any prejudice likely to arise by reason of delay; 5. the cost of taking the case forward to a conventional trial in relation to the amount involved; 6. the course of the proceedings; 7. whether all witnesses or only some were (will be) cross-examined in court; 8. whether there is a real possibility that the defendant can bolster its evidence by discovery of the plaintiff's documents and witnesses; and 9. whether the resolution will depend on findings of credibility. [ 4 ] Although issues of credibility have often weighed against proceeding by

summary trial, the Court of Appeal recently reaffirmed that viva voce evidence may be heard at

summary trials: 776826 Alberta Ltd (cob Budweiser Motorsports Park) v Ostrowercha , 2015 ABCA 49 at para 8 . [ 5 ] Not all conflicts in evidence mean that viva voce evidence is necessary. In NV Reykdal & Associates Ltd v 571582 Alberta Ltd (cob Wagner Electrical Contractors) , 2000 ABCA 330 , the Court of Appeal held that

summary trials may be appropriate notwithstanding conflicting evidence and the absence of viva voce testimony if there is other admissible evidence that makes it possible for a judge to make necessary findings of fact (at paras 3-7). [ 6 ] In this case, the parties agreed to a

summary trial. The amounts involved are not particularly large, nor are the issues particularly complex. There has already been significant delay in bringing these matters to hearing, and the parties wish to avoid the additional delay and cost that would be involved in scheduling and conducting a conventional trial. [ 7 ] There are conflicts in the evidence. Some, for example in relation to the details as to the parties’ contributions to the acquisition of the jointly held property, are relatively easily resolved within the confines of a

summary trial. Credibility is not a real concern here; it is more a matter of the unreliability of the parties’ memory due to the passage of time. Documentary evidence, or the lack thereof, and reliance on the onus of proof, are sufficient to resolve these conflicts. [ 8 ] There are also inconsistences in relation to the medical evidence regarding the Plaintiff’s injuries. This does not necessarily preclude a

summary trial. For example, in Noland v Telila , 2003 ABQB 410 at para 37 , conflicting medical reports were deemed admissible because “[t]he disagreement between these two orthopaedic surgeons [was] more apparent than real” (at para 38). [ 9 ] On the other hand, the court in Abbenbroek v McCuster , 2002 ABQB 945 at para 9 was cautious about using

summary trials to assess damages for disputed soft tissue injuries: There are no doubt personal injury cases suitable for a

summary trial. While liability is not an issue and the injuries are mostly objectively assessable, such as broken bones, the trier of fact may be able to fairly determine the damage issues by affidavit evidence. Where, however, the injuries complained of are less objectively assessable, credibility issues usually arise. The most common of these cases are soft tissue injuries which give rise to claims of prolonged pain and disability and yet are largely self-reported.

Where medical practitioners have limited means to determine the validity of the complaint by examination, and are likely to hold conflicting views, it would be unsatisfactory to attempt to try those issues by affidavit evidence. This is particularly so where, as is now common, the injuries are said to have been caused by low impact collisions. Serious causation issues are then involved. Credibility of both the plaintiff and the medical witnesses becomes central to the decision. The triers of fact, whether judge or jury, will continue to struggle with those causation

issues. [10] There are not, in this case, serious causation issues which depend solely on the credibility of the Plaintiff and the medicalwitnesses. Factors other than credibility contribute to the weight of the medical evidence. For reasons which I will provide in greaterdetail when considering the medical evidence, I have concluded that the inconsistencies in the medical evidence do not preclude asummary trial or necessitate viva voce evidence. [11] During the hearing, it became apparent that on one issue the lack of viva voce evidence was problematic.

Resolution of theissue of provocation depends almost completely on findings of credibility of the parties’ evidence. By agreement, therefore, an additionalhearing date was scheduled, and the parties provided viva voce evidence on that single issue. III. The Tort Action [12] On October 15, 2000 the Plaintiff and Defendant engaged in a physical altercation. The Plaintiff claims that the Defendantgrabbed and shook her. She grabbed at the Defendant’s shirt and nose to push him away. The Defendant then pushed the Plaintiff downand punched her in the mouth.

The Plaintiff claims that she suffered injuries to her shoulder and jaw, and post-traumatic stress, as aresult. She seeks general damages and damages for loss of income. [13] The Defendant admits to striking the Plaintiff in the face but says the Plaintiff first punched his nose, knowing that he wasrecovering from a nasal surgical procedure. Therefore, he was provoked and damages should be reduced. The Defendant also denies theseverity and extent of the Plaintiff’s alleged injuries. [14] The Defendant was convicted of criminal assault on August 31, 2001 for this incident. A.

Civil Battery and Provocation [15] In her Statement of Claim, the Plaintiff has pleaded an unlawful assault. This pleading is much like that in Wilson v Bobbie,2006 ABQB 22, where Slatter J (as he then was) commented at para 4: “While the tort sued on is said to be assault, it is in fact a battery,the confusion arising because what is an assault in criminal law is in tort a battery.” (The parties and experts who provided evidence inthis

summary trial use the term assault, and, in referring to their submissions and evidence, I will do so as well.) [16] Prof Lewis Klar distinguishes between intentional and negligent battery (Klar, Tort Law, 5th ed (Toronto, ON: ThomsonReuters, 2012) at 46) where an intentional battery is defined as follows: For the tort of intentional battery, the defendant must have intended an offensive, physical contact with the plaintiff.

The defendant neednot have intended to harm or injure the plaintiff, although in most battery cases there is an intention to injure. [17] This definition was adopted by the Supreme Court of Canada in London v Scalera, 2000 SCC 24 at para 96.

Examples ofintentional battery include punching and fighting: Klar, Tort Law at 47. [18] Provocation is defined as “conduct that would cause a reasonable person to lose self-control”: Wilson at para 17; see alsoMacMillan v Hincks, 2002 ABQB 283 at para 32. “The defendant must prove that the conduct of the plaintiff caused the defendant tolose his or her power of self-control shortly before the alleged assault or battery”: Ellis v Fallios-Guthierrez, 2012 ONSC 1670. [19] Provocation is not a defence to battery.

However, if provocation is proved by the defendant, damages should be reduced:Evans v Bradburn (1915), (AB CA), 25 DLR 611 (Alta SC); Wilson at para 41. Under Alberta law, provocation mayreduce not only aggravated or punitive damages, but also general damages: Kuehn Hougen, 1997 ABCA 325 at para 9. [20] In Wilson, Justice Slatter provided an extensive review of the law of provocation in civil battery. In that case, the defendantargued that the plaintiff first attacked and the defendant only responded afterwards.

The defendant was convicted of aggravated assault.Slatter J addressed whether provocation in a civil context is barred due to res judicata in situations where a criminal conviction has beenentered. He found that the desire to avoid a collateral attack on criminal proceedings is one reason why provocation is not available as adefence to battery (at para 28), but ultimately, provocation is still relevant for the quantum of damages.

In that case, both general andpunitive damages were reduced by 20% because of provocation notwithstanding the criminal conviction: see Lee J’s assessment in 2006ABQB 75 at paras 29 and 47. [21] With respect to the application of this analysis, some cases first decide a percentage, which is then applied to reduce theamount of general damages that would otherwise be appropriate if provocation had not been made out: Wilson v Bobbie, 2006 ABQB 75at para 47; Fernandez-Hodelin v Sequi, 2012 ABPC 358 at para 49.

The Court of Appeal in Kuehn stated that this method of analysis ishelpful, but not necessary so long as provocation weighs into the award of damages (at para 9). This alternative approach simplyconsiders provocation as one factor among all others, such as the severity of the plaintiff’s injuries, when determining the quantum ofgeneral damages. This more global approach to damages was followed in dicta in MacMillan at para 34 and at the trial level in Kuehn. B.

Viva Voce Evidence regarding Provocation [22] On October 15, 2000, the Plaintiff and Defendant had been living separate and apart for a little over a year. According to thePlaintiff, they had seen very little of each other for a few months, but met on a number of occasions in the week or so leading up to October 15th. On October 6th, the Plaintiff heard from a friend that the Defendant was having nasal surgery. She spoke to him on the phone about the upcoming surgery, and on October 11th, when he was home from the hospital, she brought him some chicken soup.

They had dinner together at the Plaintiff’s home on October 12th and the Defendant hung a curtain rod for her. They went to the market

together on October 14 th . During these visits they discussed the possibility of resuming their relationship, but there were also difficulties and misunderstandings in their communications. [ 23 ] The Plaintiff testified that the Defendant had given her a pair of his jeans to hem. On October 15 th , she contacted him about going to his home to return the jeans. He said she should come at 9:30 pm, after his son had gone to bed. [ 24 ] She arrived at the apartment and the Defendant opened the door and let her in. In addition to the jeans, she had a box of glasses for him.

They sat in the living room and talked, but he seemed both distant and jealous. She told him she loved him and tried to hug or kiss him. He pushed her away. She felt rejected and decided to leave. He gave her the box of glasses as she did so. Once she was outside the door to his apartment, but still in the building, she remembered that he still had the pot that she had used to bring him chicken soup. She knocked on the door, calling out that she wanted to get her pot back. [ 25 ] The Defendant came outside the apartment door to speak to her. She asked for the pot back and he refused to give it to her.

She insisted. He grabbed her by her jacket, in the neck and shoulder area. He was trying to push or pull her. She told him to stop. In the scuffle, she dropped the box that she was holding and the glasses broke. He stopped, picked up the broken glasses and went up a flight of stairs to a building exit to throw them out. She stayed inside the building, outside his apartment door. [ 26 ] The Defendant returned to the area by his apartment door and the Plaintiff was still there.

She said, “Give me my pot and I’ll go.” He seemed to be headed towards his apartment door, then he turned and lunged at her, grabbing the shoulder of her coat and pushing her. She said, “Stop, you are hurting me, I just want my pot.” She recalls that she just wanted him to let her go. She reached up and grabbed at his shirt or jaw or nose to get away. He slammed her down onto her shoulder. She screamed. He punched her in the jaw. [ 27 ] The Defendant testified that while he had left their joint residence more than a year before, the Plaintiff continued to initiate contact with him.

Approximately five days before October 15 th , he had surgery on his sinuses. The surgery was very painful and his sinuses were packed. He said that he did not see the Plaintiff in the days leading up to October 15 th . He had spoken to her on the phone and she offered to drive him to the hospital, but he declined. He denied that the meetings described by the Plaintiff had occurred. [ 28 ] On October 15 th , he was not expecting the Plaintiff when she showed up at his apartment door. She had a box of glasses. He let her into the apartment and she tried to hug him; he wanted her to go.

She left, taking the glasses with her. Then she started knocking on the door again. He opened the door and went into the hall. She wanted a pot, but he just wanted her to go and refused to get the pot. She dropped the box of glasses. [ 29 ] He picked up the broken glasses and went outside to dispose of them. When he returned she was sitting on the stairs. He had his key out to enter his apartment and he told her to leave. She got off the step and came towards him and he told her to leave again. As he was leaning down to put the key in the door, he saw her fist coming up and she punched him in the nose.

He put his left hand on her shoulder and his right hand into her mouth. He was reacting to the pain and because he didn’t want to get hurt again. [ 30 ] Afterwards they were both shocked. She was bleeding. He gave her his t-shirt and called police, who arrived in a few minutes. He gave a statement to police that evening, and she did so several days later. [ 31 ] On cross-examination, the Defendant agreed that in his statement to police he had said that the Plaintiff tried to stand firm, but he is larger than she is and “soon we were pushing”.

He agreed that his memory was better then, and that he may have pushed the Plaintiff. He also agreed that in his evidence at his criminal trial, he said that he did not remember punching the Plaintiff, but he now does remember both being struck by the Plaintiff and striking back. [ 32 ] In his direct evidence the Defendant denied that the Plaintiff had a pair of his jeans to hem, or that he had been at her house and hung a curtain rod for her in the days leading up to October 15 th . However, at his criminal trial he remembered both of these facts.

He conceded on cross-examination that they “must have happened.” [ 33 ] I find that the Plaintiff’s evidence is more reliable and credible than the Defendant’s evidence with respect to the events of October 15, 2000. The Plaintiff’s evidence was detailed and consistent. She was not shaken on cross-examination. In written submissions provided after the hearing, counsel for the Defendant argued that the Plaintiff’s evidence should not be believed because of what was alleged to be evidence of bad character, from a conviction for fraud and theft, to statements to her therapist about the incident.

None of this evidence was put to the Plaintiff in cross-examination. To the extent that it has any relevance, it is not sufficient to detract from my assessment that the Plaintiff’s evidence regarding this incident is credible and reliable. [ 34 ] The Defendant’s evidence was significantly less detailed than the Plaintiff’s and was inconsistent in significant respects with his statement to police and his evidence at the criminal trial. Rather frankly, he admits that his present memory of what happened is a “reconstruction”. This reconstruction appears to be quite selective.

The Defendant seeks to present the Plaintiff as pestering him, while he was distant and uninvolved. The Plaintiff’s description of interactions that were both good and bad on both their parts, is more consistent with the facts eventually admitted by the Defendant, that she had brought him soup after his surgery, that she was hemming a pair of his jeans and that he had hung a curtain rod in her home. [ 35 ] The major difference in the Plaintiff’s and Defendant’s descriptions of the October 15 th incident is whether there was a scuffle between them before the Plaintiff struck the Defendant’s nose.

I believe the Plaintiff’s evidence. The Defendant conceded that they had been “pushing” at some point, and while he does not recall this happening just before the Plaintiff struck his nose, I believe the Plaintiff when she says that she was being handled and moved by the Defendant in an aggressive way, when she grabbed at him in an effort to get away. It is not surprising to me that the Defendant would have little memory of physical interactions when he was dominating the Plaintiff. He would expect to physically dominate the Plaintiff, who is much shorter and lighter than he is.

He is 6’5” tall, and at the time weighed about 200 pounds; she is 5’2” tall and weighed about 110 pounds. What the Defendant remembers, and what likely did surprise him, is that his physical dominance was challenged, and he was hurt.

C. Conclusion regarding Provocation [36] The onus is on the Defendant to prove provocation on a balance of probabilities.

I conclude that the onus has not been met, inlight of the evidence that I accept, which is that the parties had been scuffling earlier, and that the Defendant had seized the Plaintiff andwas pushing her when she reached up and grabbed at or struck his nose. [37] In a criminal law context, it has been held that provocation cannot be established where the alleged provoker is doingsomething that she has a legal right to do, such as defending herself: R v Thibert, (SCC), [1996] 1 SCR 37, at paras 29-30.

Also, provocation cannot be “self-induced” in the sense of being a predictable response to the defendant’s own acts: R v Louison, (SK CA), [1975]6 WWR 289 (Sask CA), at paras 64-72. That is because there would not then be the element of suddenness or unexpectedness that wouldcause the defendant to lose self-control. [38] These factors also apply in the civil context. The Defendant must prove that it was the Plaintiff’s conduct that caused him tolose his power of self-control.

He has not done so. [39] After the Plaintiff left the Defendant’s apartment, they were both involved in a verbal disagreement and a physical altercation.They were scuffling when the Plaintiff dropped a box of glassware. There was a brief hiatus while the Defendant disposed of the brokenglassware. When he came back, the altercation continued as before, with the two of them scuffling, when she, in anger or self-defencestruck his nose. He then shoved her in the shoulder and punched her in the mouth. [40] The Plaintiff did not cause the Defendant to lose self-control.

The Defendant was not exercising self-control; he was holdingand pushing someone much smaller and weaker than he was. He should not have been surprised that she responded with physicalaggression to his own physical aggression. D. Quantum of Damages i. Evidence regarding Injuries [41] The Plaintiff claims that as a result of the assault, she suffered injuries to her mouth, teeth and temporomandibular joint(TMJ), and to her shoulder and arm. She also suffered psychological injuries. [42] Immediately after the assault, the Plaintiff was treated by physicians and dentists at the University of Alberta hospital.

Shehad a laceration to her lip that required 33 stitches and resulted in a permanent tear to the frenulum (connective tissue) of her lower lip.She required an emergency splint to be installed to stabilize four teeth which had been loosened, and two other teeth were broken. Shewas also prescribed medication for severe shoulder pain. [43] On three later occasions, the Plaintiff received cortisone injections to treat scar tissue which formed as a result of thelaceration. She had several dental appointments to repair loosened and broken teeth.

She underwent endodontic treatments on two teeth,which will need to be repaired in the future. The restorations of her teeth may need to be redone, and may require surgery to installimplants. [44] Since the assault, the Plaintiff has received multiple treatments for TMJ symptoms, including jaw pain and clicking andheadaches. Dr. Cheryl Cable, prosthodontist, examined the Plaintiff and reviewed medical and dental records from before and after theassault. In her report, dated September 16, 2014, Dr.

Cable concluded that the Plaintiff has a 3-5% total bodily impairment as a result ofher TMJ injuries and that these injuries were suffered as a result of the assault. [45] The Defendant does not take issue that the Plaintiff suffered injury to her mouth and teeth as a result of the assault. Hesubmits, however, that the Plaintiff’s TMJ problems were not caused by the assault, but were a pre-existing condition. The Plaintiff hadpreviously been examined for jaw pain and clicking, in 1997. [46] The Defendant arranged for the Plaintiff to be examined by Dr. Paul Major, an orthodontist and professor of dentistry.

Hisreport is dated November 12, 2013. [47] Dr. Major concluded that the Plaintiff did sustain dental injuries to her two lower teeth and that dental care including rootcanals and crowns on these two teeth is directly related to the assault. He estimated the cost of dental care at $8000. [48] Dr.

Major indicated that he was unable to make a “definitive diagnosis of the anatomic status of the [TMJ]” without furtherdiagnostic imaging.” With that caveat, he indicated it was his opinion that the Plaintiff did not sustain injuries to the TMJ in the assault,but likely had “pre-existing, but stable, [TMJ] internal derangement and she may have had stable degenerative joint disease.” She alsolikely has “jaw parafunction (bruxism) which is contributing to jaw muscle tenderness and tension type headaches.” He recommendedcontinued nightguard occlusal splint therapy and continued psychiatric management to treat this condition. [49] Subsequent to Dr.

Major’s report, but before Dr. Cable’s examination and report, the Plaintiff obtained additional diagnosticimaging. The MRI scan showed “significant bilateral [TMJ] degenerative changes and articular disc dislocation without reduction.” Dr.Major was apparently not provided with this information; there is no updated report from him. Counsel for the Defendant submits thatthe MRI finding of degenerative changes supports Dr. Major’s tentative diagnosis of degenerative joint disease and that this conditionwas not caused by the assault. This ignores the MRI finding of disc dislocation. In any event, counsel’s

interpretation of the scan is notevidence. [50] Dr. Cable reviewed both Dr. Major’s report and the MRI scan and considered both in drafting her subsequent report. Shenoted that “internal derangement exists when a disc is displaced or the jaw is dislocated. Both of these factors are present radiologically,

and clinically.” She commented on issues with the Plaintiff’s bite, and noted that prior to the assault the Plaintiff was “able to accommodate her bite relationship”. The assault placed a “severe strain on the ligamentous structures”, which precipitated “an induced injury to the components of the [TMJ]”, which injury is “now perpetuated by the patient’s existing occlusion through simple jaw movement.” [ 51 ] Dr. Cable also commented on the Plaintiff’s pre-accident treatment for TMJ issues.

She noted that the Plaintiff was not experiencing clicking of the jaw, jaw locking, jaw pain, difficulty chewing or unusual incapacitating headaches until after the direct trauma of October 15, 2000. Her conclusion regarding causation is clear: On October 15, 2000, due to a direct trauma to the face, Ms. Jagodnik sustained a compression crush type injury to the retrodiscal tissues of the highly innervated posterior bilaminary zone, and therefore a disruption to the intracapsular ligamentous support that is required for the physiologically comfortable function of the [TMJ].

But not for the traumatic event of October 15, 2000 this would not have occurred. Therefore the incident of being struck in the face on October 15, 2000 caused a condylar disruption with respect to motion, which precipitated a [TMJ] dislocation and ultimately dysfunction. … Based on the absence of symptomology with respect to the jaw pain, and jaw restriction, it is highly improbable that the patient was suffering with a previous craniomandibular disorder.

Subsequent to the blow to the face on October 15, 2000, the documented headaches immediately following, the reported clicking of the jaw as the condyles and disk became displaced, the significant facial pain, and the radiological evidence of the multi-directional tomographs, and the MRI scan, would all strongly suggest that Ms. Jagodnik sustained a true [TMJ] anatomic injury as a result of the October 15, 2000 direct trauma event. There is significant objective evidence of jaw function impairment. [ 52 ] Counsel for the Defendant argued that Dr.

Cable’s conclusion should be doubted as there is reference in the Plaintiff’s 1997 dental chart to jaw clicking and pain. Dr. Cable reviewed these records; she noted under “relevant history” that: According to the charting of Dr. Eastwood, Ms. Jagodnik complained of jaw joint pain on July 22 1997. Ms. Jagodnik explained that the jaw pain was recent, and that she noticed it following an appointment with a chiropractor. Dr. Eastwood noted that the appointment with the chiropractor was a possible trigger point.

Dental charting during the next three years is unremarkable with respect to TMJ symptomatology. (Emphasis added.) [ 53 ] Counsel’s observations do not cause me to place less weight on Dr. Cable’s opinion. Dr. Cable was clearly aware of the Plaintiff’s jaw complaints in 1997, and that they did not continue during the three years following. [ 54 ] Dr. Major indicated that his diagnosis was tentative only. He was not provided with the diagnostic imagery that he said was necessary to confirm his diagnosis.

Further, while he commented on pre-existing TMJ internal derangement and degenerative joint disease, he described both of these conditions as “stable”. He did not comment on whether the assault might have caused these conditions to become symptomatic. [ 55 ] This is not like the situation described in Abbenbroek v McCuster , dealing with conflicting medical opinions regarding soft tissue injuries, where the “claims of prolonged pain and disability …are largely self-reported” and the “medical practitioners have limited means to determine the validity of the complaint by examination”. Dr.

Cable relied on objective evidence including radiological evidence and an MRI scan, and the Plaintiff’s dental charting, in addition to self-reporting. Further, it is not even clear that these medical opinions differ. Only Dr. Cable reached a definitive diagnosis. Dr. Major expressly stated that his diagnosis was tentative. [ 56 ] For these reasons, I conclude that I am able to rely on Dr.

Cable’s opinion, and find that the Plaintiff has proven on a balance of probabilities that she suffered a TMJ injury as a result of the battery. [ 57 ] The Plaintiff had pain and restricted motion in her shoulder immediately following the battery. She received chiropractic treatment, physiotherapy and cortisone shots in her shoulder. [ 58 ] In November 2002 the Plaintiff was assessed by Dr. Robert Balyk, orthopaedic surgeon. His impression was a chronic AC separation, that was asymptomatic, and a SLAP lesion.

She was able to do all the things she likes to do, including swimming, and he was of the view that her symptoms at the time did not warrant surgery. [ 59 ] The range of motion in the Plaintiff’s shoulder has been restored; she reports continuing pain with movement, but there is no evidence that she has received treatment for her shoulder injury since 2002. [ 60 ] The Defendant submits that it has not been proven that the Plaintiff’s shoulder injury was caused by the assault. There is no medical opinion to this effect. Dr.

Esmail noted in a letter that the Plaintiff suffered a shoulder separation as a result of the assault, but he was simply passing on the Plaintiff’s report and was unaware of details. The Plaintiff did report pain in her shoulder when she attended at emergency on October 15, 2000, but hospital diagnostic imagery indicates a normal shoulder and a full range of motion is noted. [ 61 ] The Plaintiff has not proven that anything more than temporary pain in her shoulder was caused by the battery. Dr.

Balyk’s diagnosis is not clearly related, given that the hospital records do not document a shoulder separation or SLAP lesion. The Plaintiff’s own impression that she has continuing shoulder issues relating to the assault is not sufficient to prove causation on a balance of probabilities. [ 62 ] The Plaintiff alleges psychological injuries as a result of the assault, including post-traumatic stress disorder [PTSD], periods of deep depression, suicidal thoughts, paranoia, relational difficulties and lowered self-esteem. [ 63 ] The Plaintiff has attended counselling and psychotherapy from multiple practitioners.

Since 2008 she has been under the care of Dr. Nick Coupland, psychiatrist. In his report of September 24, 2014, he indicates that the Plaintiff “continues to have symptoms that

meet the criteria for a diagnosis of PTSD, including intrusive thoughts about [the Defendant] and strong emotional reactions (fear, anger or tearfulness) or physical reactions (tension, agitation) at reminders of the assault.” Dr. Coupland was of the opinion that there was “no element of ‘compensation’ neurosis involved,” and stated that in his experience “patients with such persistent and pervasive symptoms of PTSD continue to experience similar levels of symptoms even after the issues are resolved.” [ 64 ] The Defendant observes that the Plaintiff received psychiatric treatment prior to the assault.

In 1998 she was diagnosed with major depressive disorder, recurrent, in partial remission, and Borderline Personality with narcissistic features. At that time she complained of personal problems getting in the way of her keeping a job. She stated that she can be overly critical and that she had been fired from every job that she had up until that time. In 1999 she made a suicide attempt. [ 65 ] Two psychiatrists who dealt with the Plaintiff following the assault, Dr. Finola Fogarty and Dr.

Bradley Frederick, noted many psychological issues pre-existing the assault, and indicated that it was their impression that she was attempting to manipulate to get a diagnosis of PTSD for purposes of her litigation against the Defendant. [ 66 ] These comments in the notes of other psychiatrists are not sufficient to cause me to discount a clear diagnosis of PTSD in relation to the assault by the psychiatrist who has been treating the Plaintiff for over six years.

The Plaintiff’s pre-existing psychological problems do not negate that diagnosis; they may simply mean that she was more susceptible to developing PTSD. However, the evidence does indicate that the Plaintiff had pre-existing psychiatric symptoms similar to those attributed to her PTSD: periods of deep depression, suicidal thoughts, and relational difficulties. In these circumstances, the Plaintiff’s PTSD is properly viewed as an aggravation of existing psychological problems. ii. General Damages [ 67 ] The Plaintiff relies on the following cases with respect to quantum of damages: a.

In Willeson v Calgary (City) , 2008 ABCA 197 , the Plaintiff suffered multiple injuries, including TMJ, as a result of a collision with a city bus. The injury to the TMJ was minor and required relatively inexpensive splint treatment over a number of years. The Court upheld the decision to specifically apportion $15,000 in general damages for the TMJ injury (adjusted to $17,500 for inflation). b. In Ross v Isaacs , 2001 NBQB 234 , the Plaintiff suffered multiple injuries as a result of a motor vehicle accident, including an exacerbation of a pre-existing TMJ injury.

The Court awarded $48,000 in general damages (adjusted to $65,488 for inflation), specifically for the exacerbation of the plaintiff’s pre-existing TMJ disorder. c. In Koziak v Koziak , 2001 ABQB 447 , as a result of the defendant’s assault, the Plaintiff suffered from a TMJ disorder. This disorder amounted to an 8% impairment of her whole body. However, the treatment for the future was primarily to be that of adjusting the orthotic from time to time. The plaintiff suffered from the usual headaches, clicks and pops associated with a TMJ disorder.

In this case the plaintiff did not need costly or painful surgery and general damages were awarded at $18,000.00 (adjusted to $24,817 to inflation). d. In Epp v Balaton , 2003 ABQB 822 , the Plaintiff suffered from TMJ dysfunction and from psychiatric injuries, caused from the Defendant’s negligence during intubation. The Plaintiff experienced severe pain initially in the right jaw which interfered with her mouth opening, yawning, chewing, kissing and talking. The Court awarded $50,000 in general damages (adjusted to $63,363 for inflation.) e. In Lizotte v Rowe , [1997] B.C.J.

No. 65 , affirmed 2002 BCCA 79 , the plaintiff suffered post-traumatic stress disorder as a result of the defendant’s negligence. She was awarded $20,000.00 for the psychological impact of the accident. The accident also caused soft tissue injuries to the supporting musculature of her neck and spine, from which she may never fully recover. She was awarded an additional $50,000.00 under this heading. The court found that the plaintiff’s mental state was not caused by the accident, but the accident did cause post-traumatic stress disorder for which she was awarded $20,000.00 (adjusted to $30,494 for inflation). f.

In Seres v. Ramirez , 2006 ABQB 846 , the Plaintiff demonstrated several psychological injury symptoms after a motor vehicle accident. He also had headaches, neck and back pain, loss of memory and fear of driving. He suffered psychological damage serious enough to keep him out of work for one year, but symptoms had resolved within 2 years. The Court awarded him $60,000.00 in general damages (adjusted to $70,772 for inflation). [ 68 ] The Defendant referred to cases dealing with dental injuries exclusively and providing a range of damages up to $18,000.

In view of my findings regarding the Plaintiff’s TMJ and PTSD injuries, I do not find these cases to be helpful. [ 69 ] The case of Epp v Balaton comes closest to the Plaintiff’s physical and psychiatric injuries globally. Of the cases dealing specifically with psychiatric issues, Lizotte v Rowe is more relevant than Seres v Ramirez , as the Plaintiff’s pre-existing conditions were aggravated by the battery. I assess the Plaintiff’s damages globally, including dental and TMJ injuries and temporary shoulder pain, and exacerbation of her psychological problems, at $65,000. iii. Cost of Care [ 70 ] Dr.

Cable’s report indicates that the Plaintiff’s TMJ injury requires prosthodontic treatment involving rebuilding of the maxillary and mandibular arches. Dr. Cable estimated immediate treatment costs for crown restorations involved in this rebuilding at $49,500. [ 71 ] The Plaintiff provided evidence of prior estimates of future dental treatment including root canals and crowns in the range of $15,000 to $17,000. It is not clear whether there is overlap between these costs and the crown restoration referred to by Dr. Cable. It is also not clear if or when the work described by Dr.

Cable will need to be redone or what the cost of this would be. As the onus is on the Plaintiff to prove damages, I would set the amount for future dental and TMJ care at $49,500.

[ 72 ] The Plaintiff also provided evidence of her past costs for dental care for loosened and chipped teeth in the amount of $920.20. iv. Loss of Housekeeping Capacity [ 73 ] The Plaintiff submits that prior to the assault she did 32 hours per week of housekeeping. In the initial weeks after the assault, she was limited to 1 to 2 hours per week of light housekeeping, and that gradually over the course of a year she regained the capacity to complete housekeeping duties at the same level, but with pain.

She anticipates future loss of housekeeping capacity when she undergoes surgical procedures. [ 74 ] As any future shoulder surgery has not been proven to be related to assault, and there is no evidence that contemplated crown restorations will affect the Plaintiff’s housekeeping capacity, the claim for future loss of housekeeping is dismissed. [ 75 ] As to past loss, while the Plaintiff reported pain in her shoulder, the hospital records indicated a full range of motion. On the evidence, the Plaintiff should have been able to complete housekeeping duties as before, albeit with pain for a limited time.

In assessing the general damages award I have taken into account the Plaintiff’s pain, including shoulder pain. In my view, no further award is required under this heading. v. Loss of Income [ 76 ] The Plaintiff obtained a Bachelor’s Degree in Arts in 1989 and in Education in 1993. Even with two degrees, she was never fully employed.

Her income history from 1993 to 2000 was as follows: Year Other Income $ T4 income $ Social Assistance $ Line 150 total $ 1993 5,800.00 00.00 6,985.00 12,785.00 1994 0.00 1,433.00 8,548.00 9,981.00 1995 0.00 1,336.00 9,106.00 10,442.00 1996 600.00 14.00 5,250.00 5,864.00 1997 1,000.00 0.00 8,788.00 9,788.00 1998 0.00 12,615.00 2,403.00 15,018.00 1999 321.00 0.00 0.00 321.00 2000 235.00 6,135.00 2,693.00 9,063.00 [ 77 ] On December 4, 2000 the Plaintiff gained employment with Alberta Human Resources and Employment. She was employed full time at $18 per hour.

She resigned on February 28, 2001, stating that she had been required to take numerous medical appointments during her tenure and would continue to have to do so. [ 78 ] On April 8, 2004, the Plaintiff was referred by her career consultant for a psychological assessment. She had recently been let go from a position in marketing and had been unable to secure other employment.

The assessment was not complete because of the Plaintiff’s “fragility and severe depression.” The assessor indicated that the Plaintiff did not have the “adaptive skills or emotional resiliency” to deal with vocational training or competitive employment, and that, “given the longstanding nature of her current presentation, it would be more appropriate for her to make an application for AISH benefits.” [ 79 ] The Plaintiff applied for and received AISH benefits and continued to receive those benefits as of the date of trial. [ 80 ] I have accepted that the Plaintiff suffered PTSD as a result of the battery, and that the PTSD aggravated pre-existing psychological problems.

However, I conclude that the Plaintiff already lacked an ability to be competitively employed as a result of her pre-existing condition. Although she completed her second degree seven years before the battery, there was only one year in which she had any significant employment income (1998, in the amount of $12,615). It was in that year that she was diagnosed as suffering from a major depressive disorder. She told medical professionals that personal problems were preventing her from keeping a job. She started a new job in December 2000, relatively soon after the battery.

She resigned from that job, apparently because of medical appointments; she was not fired nor assessed as unable to perform the requirements of the job. When she was assessed in 2004 as unemployable, this was attributed to “longstanding” issues, including “severe depression.” [ 81 ] The Plaintiff has not proven that her lack of capacity to earn an income was caused by the battery. The claim for loss of income or loss of income earning capacity is dismissed. vi. Punitive Damages [ 82 ] The Plaintiff seeks punitive damages. In my opinion, this is not a suitable case for punitive damages.

The battery occurred in the context of a mutual altercation. While I have concluded that there was no provocation that would reduce the damages suffered by the Plaintiff; it is also not a situation in which the Defendant was acting maliciously or with premeditation. IV. Partition and Sale of Property A. Relationship and Cohabitation [ 83 ] On November 26, 1998 the parties purchased a property for $117,000 and lived together in it for eight months; the Plaintiff has continued to live there to the present day. While the purchase price was $117,000, the property was mortgaged for $126,096.07,

which included $9,295 to fund upgrades and renovations. The parties also took out a $4,000 demand loan. The monies from the demand loan and the mortgage proceeds of $9,295 were paid to the Plaintiff. The parties were joint tenants and both parties were personally liable on the mortgage and demand loans. [ 84 ] During the eight months of cohabitation, the Defendant made contributions to the property.

According to the Plaintiff, the Defendant contributed: • $2,000 towards the deposit • $225.46 towards renovation materials • Half of the mortgage payments for seven months • Half of the property taxes for six months • Half of the utilities for eight months. [ 85 ] The Defendant claims that his contributions for the first eight months also included his labour installing a bathroom, painting the interior, replacing baseboards, working on the deck and landscape, and a number of other jobs on the interior and exterior of the home. [ 86 ] The Plaintiff says she reimbursed the Defendant in cash for the $2,000 deposit and the $225.46 cost for renovations.

The Defendant denies this. Neither party has provided bank records for the relevant time period to support their claim. The Plaintiff submits that an adverse inference should be drawn against the Defendant as he was directed by the Court and undertook to do this and did not. However, the Plaintiff did not take steps to enforce the Court order or undertaking. In my view, the onus is on the Plaintiff to prove her reimbursement of an amount that she now admits the Defendant paid.

Her own lack of documentation, plus her inconsistent evidence on questioning (she initially denied that he had made the contribution, and only after being presented with his cancelled cheques claimed to remember having repaid him in cash), leads me to the conclusion that the Plaintiff has not met her onus in this regard. [ 87 ] I am satisfied that the Defendant contributed to the acquisition of the property on roughly equal terms for the eight month period of cohabitation.

While his cash contributions were somewhat less than hers, she also seems to have recouped some of her cash contributions by keeping all or most of the proceeds when a hot tub that came with the property was sold, and his “sweat equity” contribution seems to have been greater than hers during this period. [ 88 ] There was no equity in the property in July 1999 when the Defendant left.

The Plaintiff has been the sole contributor to all expenses of the property since, which she claims amount to at least $280,000. [ 89 ] The Defendant acknowledges that the Plaintiff has paid all expenses since July 1999, but submits that her calculation of the amount is overstated. It does not account for his contributions for the first half of 1999. She has claimed $7,800 in maintenance, repairs and improvements expenses until July 1999, but she received mortgage proceeds of $9,295 in August 1999 for these expenses. No receipts were provided for claimed expenses for maintenance, repairs and improvements.

Further, the Plaintiff’s evidence regarding expenditures is not credible, as the claimed expenses exceed her income. [ 90 ] The Plaintiff offers some explanations for the discrepancy between her income and expenses. [ 91 ] In 2000, she and the Defendant co-signed a Promissory Noted for $12,000, and received a government grant for $12,000 for renovations. If the property was sold in less than five years, they would have to repay the grant. However, as the Plaintiff continued to reside in the property, the grant did not have to be repaid. [ 92 ] The Plaintiff also built up credit card debt related to the property.

By 2004, that debt was in excess of $30,000 and the Plaintiff made an assignment in bankruptcy, as a result of which the joint tenancy was severed. The property was appraised on November 10, 2004 and valued at $179,000. The outstanding mortgage balance was $112,101. After deducting the mortgage, and the exempt equity of $40,000, the non-exempt equity was determined to be $27,859.60. To maintain ownership of the property, the Plaintiff was required to pay her share of the non-exempt equity, in the amount of $13,929.80. She borrowed $15,000 from a friend to do this. No payments have been made on the loan.

The balance owing is $27,321.60, including interest at 6.5%. The loan is secured against the property, as evidenced by a caveat. [ 93 ] It is worth noting that, had the Plaintiff been the sole owner of the property at the time of her bankruptcy, she would have been required to pay $27,859.60 to maintain ownership. It is not at all clear that she would have been able to borrow this larger sum.

It is quite possible that the Plaintiff would have lost the property in 2004, had she been the sole owner at that time. [ 94 ] In addition to her income, the Plaintiff received $40,000 from the Victims of Crime Fund as a result of the assault. Further, some of her expenses were paid by the City of Edmonton and Social Services through subsidies. She also received cost-sharing payments from boarders; she deposes to total of $4,700.

When these factors are taken into account, any discrepancy between the Plaintiff’s income and expenses is substantially explained. [ 95 ] Although the Plaintiff has not provided receipts for maintenance, repair and improvement expenses, the amounts that she recorded are detailed and, on their face, very reasonable. There is no dispute regarding other expenses that were incurred for mortgage payments, property taxes, home insurance and utilities.

I would deduct from the Plaintiff’s claimed total for expenses the amounts of $9,295 (covered by mortgage proceeds), $2,846.25 (one-fourth of 1999 mortgage, property tax and home insurance expenses to account for the Defendant’s contribution for the first half of the year), $12,000 (covered by government grant), and $4,700 (paid by boarders). I accept that the remaining $255,802.75 in property –related expenses was paid by the Plaintiff personally or on her behalf. This includes both capital and non-capital expenses, which have different significance, as I will discuss later.

This compares with the Defendant’s cash contributions of $2,846.25 (one-fourth of 1999 expenses), $2,000 (deposit), and $225.46 (cost of renovations), for a total of $5,071.71.

This does not include non-pecuniary contributions, his labour and his liability on the mortgage and other property debts. [ 96 ] On December 31, 2014, the Property was appraised at $370,000. Deducting the outstanding balance on the mortgage and the personal loan owing against the property ($52,218.89 and $27,321.60) leaves equity of $290,459.51.

The increase in equity since 2004 is primarily attributable to the increase in the real estate market in Edmonton. [ 97 ] The Plaintiff argues that any division must be unequal to acknowledge her contributions whereas the Defendant argues that equal division of the property recognizes the fact that she would not have qualified for a mortgage without him, that he would have been liable on many payment obligations if she had not paid, and that he has been unable to purchase a home due to this co-tenancy.

I would add my observation that the Defendant’s presumed co-ownership in 2004 shielded one-half of the non-exempt equity in the home from the effect of the Plaintiff’s bankruptcy. B. Law of Property Act [ 98 ] The Law of Property Act , RSA 2000, c L-7, ss 15-17 [ LOPA ] allow for the partition and sale of property held as a co-tenancy: Application for termination of co-ownership 15

(1) A co-owner may apply to the Court for an order terminating the co-ownership of the interest in land in which the co-owner is a co-owner.

(2) On hearing an application under subsection (1), the Court shall make an order directing (

a) a physical division of all or part of the land between the co-owners, (

b) the sale of all or part of the interest of land and the distribution of the proceeds of the sale between the co-owners, or (

c) the sale of all or part of the interest of one or more of the co-owners’ interests in land to one or more of the other co-owners who are willing to purchase the interest.

(3) A sale under subsection (2)(

b) or (

c) and the distribution of the proceeds of the sale shall be under the direction of the Court.

(4) In making an order under subsection (2)(c), the Court shall fix the value of the land sold and the terms of the sale. Refusal to approve sale of interest in land 16 Notwithstanding section 15(2), if an order is made under section 15(2)(

b) and the highest amount offered for the purchase of the interest in the land is less than the market value of the interest, the Court may (

a) refuse to approve the sale, and (

b) make any further order it considers proper. Accounting, contribution and adjustment 17

(1) In making an order, the Court may direct that (

a) an accounting, contribution and adjustment, or any one or more of them, take place in respect of the land, and (

b) compensation, if any, be paid for an unequal division of the land.

(2) In determining if an accounting, contribution or adjustment should take place or compensation be paid for an unequal division of the land, the Court shall, without limiting itself from considering any matter it considers relevant in making its determination, consider whether (

a) one co-owner has excluded another co-owner from the land; (

b) an occupying co-owner was tenant, bailiff or agent of another co-owner; (

c) a co-owner has received from third parties more than the co-owner’s just share of the rents from the land or profits from the reasonable removal of its natural resources; (

d) a co-owner has committed waste by an unreasonable use of the land; (

e) a co-owner has made improvements or capital payments that have increased the realizable value of the land; (

f) a co-owner should be compensated for non-capital expenses in respect of the land; (

g) an occupying co-owner claiming non-capital expenses in respect of the land should be required to pay a fair occupation rent; (

h) a co-owner has at the time the application is made under this Part rights in the land for which the co-owner would receive compensation under the Dower Act if an order had been made under that Act dispensing with that co-owner’s consent to the disposition of that land.

C. Operation of Presumptions and Uneven Division [99] While married couples dividing property have recourse to the Matrimonial Property Act, RSA 2000, c M-8 [MPA], commonlaw spouses generally need to resort to the law of unjust enrichment.

However, when both common-law spouses are on title as co-owners, there is a statutory basis for partition and sale under the LOPA: Sheffield Welding and Fabricating Ltd v 958760 Alberta Ltd,2003 ABQB 181 at para 11; Lutz v Lutz, 2013 ABCA 159 at para 12. [100] Unlike section 7(4) of the MPA, the LOPA does not create a statutory presumption of equal division, but rather only lists factorsto be considered under s 17(2).

Some cases considering unequal division under the LOPA have not strayed beyond the s 17(2) factors:Charles v Sandau, 2000 ABQBG 470; Sheffield Welding and Fabricating Ltd; Evans v Pazokaitis, 2008 ABQB 64.

In contrast, othershave recognized that the s 17(2) factors are not exhaustive (Scherf v Nesbitt, 2009 ABQB 445 at para 24) and have developed a mode ofanalysis, summarized in Wessa v Knight, 2014 ABQB 671 at para 61, to complement the LOPA: There is a presumption that joint tenants hold equal interests, but that presumption is rebuttable by the party seeking an unequaldistribution: Edison Estate v Lewis, 2012 NLTD(G) 81 at para 17; and Gonzalez v Soto, 2009 ABQB 454 at paras 31-32.

If there is agreat discrepancy between the contributions to the property by the joint owners, the principle of unjust enrichment may be applied:Aleksich v Konradson (1995), (BC CA), 5 BCLR (3d) 240 (C.A.) at paras 27-29; McDonald v Eckert, 2004 BCSC323 at para 42; see also Mastron v.

Cotton, (ON CA), [1926] 1 DLR 767, 58 OLR 251 (App Div), relied on inKazmierczak v Kazmierczak, 2001 ABQB 610 at para 91 in which the Ontario Supreme Court, Appellate Division said: Where one tenant has paid more than his or her share of encumbrances on the property, that tenant is entitled to an allowance for suchsurplus... [101] The analysis in Wessa is consistent with Evans v Pazokaitis. In this case, common-law spouses purchased a home as jointtenants. After the relationship broke down, the defendant remained while the plaintiff moved out of the home and continued to make hershare of the mortgage payments.

Justice Verville ordered equal division because the parties purchased the home with the intention toshare equally and the plaintiff continued to make significant financial contributions to the property (at paras 45-52). [102] The opposite result occurred in Wessa. In that case, the plaintiff was excluded from the home and ceased making mortgagepayments after the first year. Ceasing payments was a primary concern that led Associate Chief Justice Rooke to an unequal division: 64 The fact that Ms.

Wessa was excluded from the home and was not paid a share of third party rents weighs against an unequaldivision of the property, but the much larger factor is the fact that although Ms. Wessa contributed to the down payment and the firstyear of mortgage payments (most of which would have been interest that early in the mortgage), Mr. Knight paid off virtually all of thetwo mortgages. On the other hand, there was an increase in value in the property from the date of purchase to date. . . . 65 In my view, Ms. Wessa would be unjustly enriched if the property were to be divided equally. However, I find that Mr.

Knightshould not be entitled to the full increase in the value of the property. 66 As a result, I find that Ms. Wessa is not entitled to any share of the original purchase price, most of which Mr. Knight effectivelypaid on his own. However, I find that she is entitled to some share of the increase in value of the property. This is not an exact science,but an exercise of what is reasonable in all of the circumstance. I conclude she is entitled to 1/4 of the increase in value of the property.The property was purchased for 58,000.00 and I have valued it now at $148,000.00 for an increase of $90,000.00.

One quarter of that is$22,500. [103] I conclude that the LOPA factors are not exhaustive, but should be complemented by principles of common law. When theparties contribute to the purchase of a home and become joint tenants on title, there is a presumption of equal division. In rebutting thispresumption, the s 17(2) factors are important, as is unjust enrichment, especially in situations where one co-owner has left the property. [104] I commence my analysis with a review of the LOPA factors that have potential application in this case. (

a) One co-owner has excluded another co-owner from the land [105] The Defendant submits that the Plaintiff constructively excluded him from the land, because she was difficult to live with, andshe was unkind to his son. The Plaintiff submits that the Defendant left voluntarily and of his own accord. Disagreements in familyrelationships, including disagreements in relation to the parenting of children, are inherently two-sided. I do not accept the Defendant’sevidence that the Plaintiff was abusive to his son.

The Defendant’s son lived with him half time for the entire time that the Plaintiff andDefendant lived together. The other half-time, the son lived with his mother. If the Plaintiff’s treatment of the son was abusive as theDefendant now alleges, one would expect that either the Defendant would have arranged for the son to stay with his mother full-time, orthe son would have insisted on this. [106] I conclude that factor (

a) is inapplicable. (

c) A co-owner has received from third parties more than the co-owner’s just share of the rents from the land [107] This is not a significant factor. The Plaintiff admits to receiving $4,700 from boarders, for which she did not account to theDefendant, but this merely offsets a small portion of the expenses she incurred. (

e) A co-owner has made improvements or capital payments that have increased the realizable value of the land [108] While there have been renovations, these were largely paid for with mortgage proceeds and a government grant, not by thePlaintiff. Further, these are not a significant factor in the increase in realizable value of the property. The value of the property hasincreased primarily due to the increase in the Edmonton real estate market. Mortgage payments made by the Plaintiff have also increasedthe realizable value, or equity. In July 1999, when the Defendant left the house, the principal balance owing on the mortgage was

$124,961.83. On August 14, 2014, the principal balance was $52,218.89. The principal reduction is $72,742.94. [ 109 ] The LOPA requires an adjustment for this contribution by the Plaintiff. By deducting the Plaintiff’s principal reduction from the equity in the property, the remaining equity, $217,716.57, reflects the increase in market value of the property. (

f) A co-owner should be compensated for non-capital expenses in respect of the land (

g) An occupying co-owner claiming non-capital expenses in respect of the land should be required to pay a fair occupation rent [ 110 ] I have calculated the Plaintiff’s expenses in respect of the property to be $255,802.75. Deducting capital expenses of $72,742.94 leaves $183,059.81 in non-capital expenses from 1999 to 2014, a period of 16 years. [ 111 ] The Defendant provided evidence of a residential appraiser of the rent that the property would have been expected to generate. The total for the period July 1999 to February 2015 is $200,241.60.

The Defendant submits that this should be taken into account in assessing the Plaintiff’s contribution to the property, and that, effectively, the benefit the Plaintiff received by not being required to pay occupation rent off-sets the non-capital expenses that she has paid. [ 112 ] In my view, this is an appropriate way to address factors (

f) and (g). There is some suggestion that the rent proposed by the appraiser may be high, as it is based on published averages for townhomes until 2007 (the only available statistics at the time) plus an estimated 10% adjustment as the property is a detached home. But even allowing for some degree of an overestimate, the non-capital expenses incurred by the Plaintiff would not have exceeded the occupation rent. Thus I would not make any further adjustment to the shareable equity after considering factors (

f) and (g). [ 113 ] However, there remains for consideration the issue of unjust enrichment. [ 114 ] The Plaintiff claims that the only reason that the parties have the property and the benefit of its increase in value is because of her sole efforts over many years. She was on a very limited income and it was difficult, and involved sacrifices on her part, to make the payments, capital and non-capital alike, that permitted her to retain the property. In the meantime, the Defendant had a higher income, and lower expenses (his rent over the years ranged from $600 to $1100 per month).

He has not had to make the sacrifices that she has, and now seeks a windfall from her efforts. [ 115 ] The Defendant submits that the Plaintiff would never have been able to acquire the property without him, and that because of his ongoing obligations with respect to the property he has been unable to acquire any other real estate in his name. The Plaintiff’s efforts did not lead to the increase in value of the property; that windfall arose from the rise in market value. [ 116 ] It is clear that the Plaintiff would not have qualified for the mortgage without the Defendant.

The Defendant also co-signed on other loans in relation to the property, and his evidence was that because of these obligations he could not purchase other property.

The Plaintiff says that she offered to have his name removed from the title to the property, but she does not indicate that the mortgagee or other creditors would have relieved him from personal liability on the loans. [ 117 ] It is also significant that the Defendant’s shared ownership in the property was a significant factor in the Plaintiff’s ability to save it from being sold in her bankruptcy proceedings. [ 118 ] A determination of unjust enrichment requires the Plaintiff to show three things: 1. That the Defendant is enriched; 2. That there is a corresponding deprivation to the Plaintiff; 3.

The absence of a juristic reason for the enrichment. [ 119 ] If the Defendant receives a half-interest in the increase in market value of the property, he would be enriched to the extent of $108,858.28. At the time he left the property, there was no equity in it. He has made no financial contributions since, so the gain would enrich him. [ 120 ] Is there a corresponding deprivation to the Plaintiff? This is not as clear. The Plaintiff’s contribution to capital expenses has been taken into account. Her contributions to non-capital expenses are off-set by occupation rent.

Is the Plaintiff “deprived” by receiving only one-half of the increase in market value of the property? She has less of the windfall, but is this a deprivation? [ 121 ] There is, however, another form of enrichment of the Defendant and deprivation of the Plaintiff that arises from her payment of his share of property obligations after his departure.

Professor Mitchell McInnes calls this the “compulsory discharge of another’s obligation.” In this context, the remedy of contribution is appropriate ( The Canadian Law of Unjust Enrichment and Restitution (Markham, ON: LexusNexis, 2014) at 1213): Whereas reimbursement is appropriate if a debt falls primarily on the defendant and secondarily on the plaintiff, the remedy of contribution applies if a debt falls equally upon the parties. The plaintiff and the defendant need not be responsible in the same amount , but their obligations to the creditor must operate on the same level.

If the plaintiff discharges more than its fair share of the debt, then the defendant is unjustly enriched. While both parties are equally liable to the creditor, there is no juristic reason as to why, as between themselves, the burden should fall disproportionately on one rather than the other. The plaintiff consequently is entitled to recover an appropriate sum from the defendant. The measure again is restitutionary.

Liability is imposed to the extent that the claimant bore the defendant’s share of the burden. [ 122 ] The enrichment of the Defendant, by being shielded from his debts and obligations, and corresponding deprivation of the Plaintiff, applies whether the debts relate to capital or non-capital expenses. The great bulk of the Plaintiff’s payments were, of course,

non-capital. I have determined that they are off-set under LOPA factors by occupation rent, but it is also worth considering them from the perspective that the Plaintiff has for more than 15 years, even at the cost of her own bankruptcy, saved the Defendant from being called to account on any of his obligations related to the property. While this gave her a benefit reflected by occupation rent, it was a benefit that was very hard won. In reality, the Plaintiff could not afford to pay rent at this level, and her payment of property expenses meant that she suffered deprivations in many other areas of her life.

The Defendant was put to no such hard choices. [ 123 ] The Defendant submits that there was a juristic reason for the Plaintiff’s deprivation, as she had a contractual joint and several obligations to pay the mortgage principal, interest, taxes and insurance.

However, as Professor McInnes explains, that obligation does not provide a juristic reason as to why, as between the Plaintiff and the Defendant, the obligation should fall disproportionately on the Defendant. [ 124 ] As Associate Chief Justice Rooke said in Wessa , this is “not an exact science, but an exercise of what is reasonable in all of the circumstances”. He concluded that the departing co-owner who had not continued to make financial contributions was not entitled to an equal share, but was still entitled to some share in the increase in market value of the property.

He concluded that a one-quarter share was reasonable in that case. I come to the same conclusion here. The Defendant is entitled to a share in the increase in market value of the property, but not an equal share. He had an important role in the acquisition of the property, but only a minor role in its retention. The Plaintiff had an equal role in acquisition, and a major role in its retention. I will apply the same estimate of what is reasonable in the circumstances here, as applied in Wessa . The Defendant is entitled to one-quarter of the increase in market value, which is $54,429.14.

This is considerably more than his actual financial contribution to the property ($5,071.71) or his equity as calculated in the Plaintiff’s 2004 bankruptcy ($13,929.80). This share of the increase in market value reflects his ongoing interest as a co-owner, and the fact that without his assistance the Plaintiff would not have been able to acquire the property, and may not have been able to retain it. V. Conclusion [ 125 ] The Plaintiff succeeds in the tort claim. She is awarded general damages of $65,000; damages for future cost of care of $49,500, and past cost of care of $920.20.

She is entitled to interest under the Judgment Interest Act , RSA 2000, c J-1. Counsel may speak to me if they are unable to agree regarding the calculation of interest. [ 126 ] On the partition and sale application, the Defendant is entitled to a one-quarter share of the increase in market value of the property. The Plaintiff may purchase his interest in the property for $54,429.14. [ 127 ] Counsel may also speak to me regarding costs, if they are unable to agree. Heard on the 4 th and 5th day of February, and the 1 st day of April, 2015. Dated at the City of Edmonton, Alberta this 15 th day of July, 2015. J.M.

Ross J.C.Q.B.A. Appearances: Deborah A. Miller, Q.C. Family law Office for the Plaintiff Philip G. Kirman

Weir Bowen LLP for the Defendant