Boisselle v Maple Leaf Property Management Inc., 2024 ABCJ 35

In the Alberta Court of Justice Citation: Boisselle v Maple Leaf Property Management Inc., 2024 ABCJ 35 Date: 20240213 Docket: P2190101068 Registry: Calgary Between: Joan Boisselle and John Stefaniw Plaintiff - and - Maple Leaf Property Management Inc. and 690723 Ontario Inc. operating as Maple Leaf Property Management, 1305288 Alberta Ltd. Defendants Reasons for Judgment of the Honourable Justice A.P.

Argento Introduction [ 1 ] This Civil Claim arises from a dispute between the parties to a lease agreement at the Greenwood Village Mobile Home Park (“Greenwood”). [ 2 ] The basic background to this dispute is set out in the Agreed Statement of Facts (Exhibit 1) and summarized below. [ 3 ] On July 15, 2014, the Plaintiffs entered into a periodic lease agreement (the “Lease”) with the Defendants for a mobile home lot located on the Greenwood lands, and municipally known as unit 245, 3223 - 83 Street N.W., Calgary, Alberta, T3B 5N5 (“Lot 245"). [ 4 ] Prior to June 2018 it came to the Defendants' attention that certain structures located on Lot 245 encroached upon neighbouring properties held privately and by the City of Calgary (the "Encroachment"). [ 5 ] To resolve the Encroachment issue, the Plaintiffs and Defendants entered into an initial settlement agreement on December 17, 2018. [ 6 ] On June 7, 2019, the parties entered into a new settlement agreement (the "Agreement") to resolve the Encroachment issue by relocating the Plaintiffs to a new property (“Lot 247”). [ 7 ] On June 11, 2019, the Plaintiffs were relocated to Lot 247. [ 8 ] On July 24, 2019, the Defendants issued a Notice of Rental Increase to the Plaintiffs, which increased rent to $1,800.00 per month effective February 2020.

The validity and legality of the rental increase is disputed by the Plaintiffs.

[ 9 ] The Plaintiffs allege that the Defendants breached the Agreement by failing to properly implement and complete the relocation to Lot 247. The Plaintiffs seek damages of $50,000.00 for these breaches including punitive or exemplary damages of $5,000.00. [ 10 ] The Defendants’ Counterclaim alleges that the Plaintiffs have breached the terms of the Lease by (1) failing to pay the full amount of rent owing since February 1, 2020, and (2) their conduct towards other residents.

The Defendants seek judgment for the rental arrears, set-off and termination of the Lease. [ 11 ] The trial in this matter took place on January 24 and 25, 2024, with final submissions concluding on January 29.

Evidence at Trial [ 12 ] Both Plaintiffs testified at trial. [ 13 ] The Defendants’ witnesses were: • Charlaine Boa, the former Office Manager at Greenwood; • Jitin Bajaj, the current Property Manager at Greenwood; • Tony Bandola, a site worker at Greenwood for the past 11 years. [ 14 ] There were some significant limitations with the evidence presented at trial by both parties. [ 15 ] The Plaintiffs did not call any experts to prove their claims.

They also did not call any of the individuals that prepared the repair quotes supporting their damage claims. [ 16 ] The Defendants did not call any witnesses from their Vancouver head office. Ms. Boa’s evidence confirmed the head office was responsible for the decisions made in relation to the Agreement and the rent increase. [ 17 ] Finally, both parties tendered extensive hearsay evidence. There were no objections to most of this evidence. [ 18 ] This Court can consider hearsay evidence pursuant to the Court of Justice Act , RSA 2000, c C-30.5 , but is ultimately not required to accept it.

Furthermore, the Court may determine what weight, if any, should be given to hearsay evidence, even where there are no objections. In most instances, hearsay evidence will be given little or no weight as it is not helpful on key contested issues. [ 19 ] In addition to the Agreed Statement of Facts, the following findings of fact assist in understanding this dispute: • The Encroachment issue and relocation of the Plaintiffs within Greenwood was contentious. This is evidenced by the fact that lawyers became involved at some point and the parties had to negotiate a second settlement agreement.

Additionally, the Agreement specifically noted that the Lease could be terminated: o The parties acknowledge that this is the second such agreement regarding the relocation of unit 245 and fully replaces and supercedes the December 18, 2018 agreement regarding same.

Should Party B fail to co-operate fully with the move, all parties agree that Greenwood will retain the right to terminate Party B’s tenancy at Greenwood Village and Party B irrevocably waives its right to bring any claim whatsoever contesting the termination. • The Defendants agreed to perform the relocation at their sole cost and discretion; • The Plaintiffs’ mobile home was moved from Lot 245 to Lot 247 on June 11, 2019. Mr. Stefaniw described the process, which involved a winch lifting the 70-foot-long mobile home up to approximately 30 degrees.

A long dolly was then placed underneath the mobile home to move it; • The home was not positioned properly at first and there were some issues getting it situated correctly; • The Plaintiffs inspected the mobile home after the move.

They identified some damage to the bathroom walls and noted the kitchen floor was spongy or squeaky; • After the relocation, the parties disagreed as to whether the Defendants had completed their obligations under the Agreement; • By June 21, 2019, the Defendants took the position, through counsel, that they had discharged all their obligations under the Agreement; • The Plaintiffs then contacted their insurer. Jeff Howie, an engineer with CEP Forensic, was hired by Aviva Insurance to inspect the mobile home on July 4, 2019. Mr.

Howie was not called to testify, but his report dated July 31, 2019, (the “Engineering Report”) went into evidence by agreement. Generally speaking, the parties did not dispute the specific findings in the Engineering Report; • The Engineering Report noted at paragraph 1 of the

Summary of Findings that: o Several deficiencies were identified following the relocation of this home. While primarily cosmetic in nature these deficiencies should be corrected to ensure that the building continues to function as it did before the move and to ensure that no further deterioration

occurs. • The Engineering Report then made 9 specific repair recommendations. Some of the repairs were completed, but others remainoutstanding; • In January 2020, the Plaintiffs’ sewer pipe froze, leading to damage to the main bathroom floor. A significant portion of thePlaintiffs’ claim (over $20,000.00) relates directly or indirectly to remedial work to address plumbing issues and the sewer/water linesunder the mobile home. Decision The Plaintiffs’ Claims [20] Essentially, the Plaintiffs allege that: • The Defendants’ movers damaged the Plaintiffs’ mobile home during the relocation.

Much of the damage was only discoveredafter the sewer pipe froze in January 2020; and • The Defendants have not completed certain parts of the relocation, thereby breaching the Agreement. This includes work neededto get the Plaintiffs’ mobile home to comply with the Alberta Building Code and City of Calgary bylaws. [21] The Plaintiffs claim that they have incurred expenses because of the relocation totalling $2,990.09. These are set out in asummary prepared by Ms. Boisselle (Exhibit 2, Tab 7). [22] The vast majority of the Plaintiffs’ damage claims are for repairs that have not yet been made totalling $42,695.77.

Thesedamages are based on various quotes summarized in a second spreadsheet prepared by Ms. Boisselle (Exhibit 2, Tab 9). [23] Before turning to the Plaintiffs’ claims, the Court will comment briefly on the relevant legal principles that apply in this case. [24] While the Plaintiffs plead their claim in both contract and in negligence, it was essentially argued as a breach of contract case. [25] In interpreting the Agreement, the Court must ascertain the objective intention of the parties based on the language used in thedocument.

The subjective intentions of the parties, set out in their evidence at trial nearly 4 years later, are not relevant. [26] The Court may examine the factual matrix and surrounding circumstances that led to the Agreement. In doing so, it must becareful not to use this evidence to create a new agreement or insert additional contractual terms that were not included in the Agreement:IFP Technologies (Canada) Inc. v EnCana Midstream and Marketing, 2017 ABCA 157 at paras 79-82. [27] The Agreement expressly provided that the Plaintiffs’ mobile home would be relocated at the Defendants’ sole cost.

However, it was not intended to compensate the Plaintiffs for ongoing maintenance or to improve the nature and quality of the Plaintiffs’mobile home. [28] If the Plaintiffs establish that the Defendants breached the Agreement and that these breaches caused the alleged losses, thePlaintiffs must still prove their damages. Difficulty or uncertainty in assessing damages is not a bar where liability is proven: Webb &Knapp (Canada) Ltd. v Edmonton (City), (SCC), [1970] SCR 588 at para 48.

The Court must do its best to estimatedamages based on the available evidence where the exact quantum is uncertain or difficult to assess. [29] The Court will now review the Plaintiffs’ claims for the cost of future repairs along with the claims for expenses that havealready been incurred. Shed [30] The Plaintiffs claim the shed was damaged when it was moved to Lot 247. [31] The Defendants’ evidence confirmed the shed was damaged during the move. Mr. Bandola testified that the corner of theshed dragged along the ground when he moved it over to Lot 247 with his forklift.

The Defendants are responsible for this damage asthey agreed to move the shed as part of the Agreement. [32] The Engineering Report also noted that the shed base needed to be modified to ensure it was level. The Court finds that it wasa reasonable expectation under the Agreement that the shed would be properly levelled at the new location as part of the move. [33] The Plaintiffs claim that the shed damage totals $1,006.68. The estimated labor cost for the shed repair ($614.25) is one ofseveral items set out in a quote from P & G Construction dated July 27, 2022.

The quote includes the cost to repair the exterior damagecaused by the move. It also includes the cost to repair the shed door due to water damage, allegedly caused because the shed was notproperly levelled, and for wood replacements on the shed corners and at the shed bottom. Quotes for the lumber and paint costs wereproduced totalling $392.43. [34] The Defendants offered to have the repairs made by their plumber’s helper, an individual by the name of Stefan. Mr.Stefaniw thought this individual was incompetent and refused to let him make these repairs. [35] The Court accepts that Mr.

Stefaniw was concerned with the quality of the helper’s workmanship. While Mr. Stefaniw wasnot qualified as an expert, he has extensive experience as a carpenter and framer. The Defendants did not lead any evidencedemonstrating that this helper had any specific training or qualifications to repair the shed.

[ 36 ] The Court finds that the Plaintiffs’ refusal was reasonable in the circumstances. The relationship between the parties was clearly strained both before and after the relocation. The Plaintiffs believed the relocation was incomplete, but the Defendants claimed they had fully satisfied their obligations under the Agreement in an email from their legal counsel dated June 21, 2019. [ 37 ] Additionally, during this ongoing dispute over the relocation, the Defendants imposed a significant monthly rent increase of $1000.00 on July 24, 2019.

While this was after the Defendants offered to repair the shed, it undoubtedly exacerbated the situation further. [ 38 ] Accordingly, the Plaintiffs have proven their claim to have the shed fixed properly as it was damaged during the relocation, as admitted by the Defendants’ witness. However, they are not entitled to be compensated for a new shed door or to have the entire shed repainted. The Plaintiffs did not provide any specific evidence of the water damage after the move or prove that this was somehow caused by the relocation.

As the Plaintiffs did not call a witness from P & G Construction, it is not clear how much of the quote relates to simply repairing the damage and how much would amount to a betterment. [ 39 ] As some damage was admitted, the Court’s best estimate is that the Plaintiffs should be compensated for 50% of the quoted repair costs, including lumber and paint. The Plaintiffs have proven this portion of their claim in the amount of $503.34. [ 40 ] The Plaintiffs would also be entitled to the costs required to level the shed as noted in the Engineering Report.

However, they did not prove the cost for this item and it is therefore denied. Sod [ 41 ] The Defendants were required to lay sod at Lot 247 as part of the relocation. Ms. Boisselle included this as a handwritten addition to the Agreement signed by the parties. [ 42 ] The Defendants do not dispute this, but state that the new lot was sodded, thereby discharging their obligations. The photographs in evidence clearly show that the new lot was sodded. [ 43 ] However, the Plaintiffs claim that sod was not laid on the north side of the property.

They also claim that the sod was laid over weeds, which required weed control treatment in 2020. The Plaintiffs’ quote from Casey Clarks Landscape and Maintenance (“Casey Clarks”) totals $2,730.00 to dig up, dispose and lay 630 square feet of sod. [ 44 ] The Plaintiffs were entitled to have the entire portion of the new lot covered with sod as part of the Agreement. The evidence proves that this was not done. While it was suggested that the Plaintiffs had received a substantial lawn, that is not what the Agreement stipulated.

Sodding the new lot can only mean sodding all of it. [ 45 ] However, the Plaintiffs have not proven that 630 square feet of sod needs to be removed and replaced as per the quote. The landscaper that provided the quote was not called to testify to prove that any of the sod laid by the Defendant had to be replaced. [ 46 ] The Plaintiffs also seek damages of $211.68 for costs they incurred purchasing weed control treatment for their lawn in the summer of 2020. [ 47 ] The Plaintiffs have not proven that these weed control costs were due to the Defendants’ breach of the Agreement.

The photographs show that the Plaintiffs’ new lawn is healthy. Weed control is generally used to maintain lawn quality and that appears to have been the case here. The evidence does not prove that the presence of weeds under the new sod was the reason for the various weed control treatments purchased by the Plaintiffs in 2020. [ 48 ] Based on these findings, the Court must do its best to estimate the Plaintiffs’ damages for the sod that was not completed on the north side of the property.

The Casey Clarks quote does not break down the cost to lay this sod and the 630 square foot area was not explained in the evidence. The sod quote also includes disposal of sod and materials for 630 square feet of sod. The disposal cost must be removed as the Plaintiffs have not proven their claim to remove any of the sod that was laid. Once the disposal cost is removed, the total quote comes down to $2,000.00.

That figure would include the time to remove and dispose of sod, which would be more labor intensive than just laying the sod that was not completed. [ 49 ] The Court’s best estimate is that the total cost to lay the missing sod on the north side of Lot 247 would be approximately $500.00. The Plaintiffs have proven their claim for the sod that was not completed in this amount. Fence/Gate [ 50 ] The evidence at trial was that there was an existing fence on Lot 247, but that it was in very poor shape.

It was taken down by the Defendants in late 2018, prior to the June 2019 relocation. [ 51 ] The Plaintiffs claim that the Defendants were required to supply a fence under the Agreement and seek $9,501.10 in damages. This is based on a quote (labor only) prepared by P & G Construction dated July 27, 2022, as well as the cost of lumber. [ 52 ] The Court finds that the Defendants did not agree to supply a new fence under the Agreement for the following reasons. [ 53 ] First, the Agreement does not include an express term that a new fence would be provided. While the Plaintiffs argue that Ms.

Boa orally represented that a fence would be supplied, the evidence does not prove that this representation was made. [ 54 ] Ms. Boa specifically denied making this representation. The Plaintiffs argued that Ms. Boa also stated there had been general discussions and that the inclusion of a fence could be inferred from this evidence. However, the Court is unable to draw such an inference given her express denial that she promised that a new fence would be supplied. Ms. Boa also testified that she took direction from the Defendants’ head office in Vancouver when it came to the Agreement.

This further supports the conclusion that she did not

make any representations to supply a new fence, as she knew she had no authority to do so. [ 55 ] Additionally, the Plaintiffs took care to review and modify the Agreement before signing off. Ms. Boisselle specifically added several additional terms requiring the Defendants to supply new sod, remove perennial plants and move the Plaintiffs’ deck, hot tub, front porch and shed. It is inconceivable that the Plaintiffs would have included these items but left out a major item such as building a new fence.

The Plaintiffs clearly knew or ought to have known that the old fence had been taken down prior to the relocation. [ 56 ] Finally, the Plaintiffs’ claim that they are entitled to a new fence is clearly linked to issues and concerns that developed after the relocation. These concerns include the comments noted on the Plaintiffs’ damage spreadsheet that cars, bikes, people and animals have been cutting across the Plaintiffs’ lot and created “an on-going nuisance situation with continued harassment, interfering with the homeowners enjoyable use of Lot 247”.

The Plaintiffs would undoubtedly like a new fence to address these subsequent disputes with their new neighbor. However, this does not prove that the Defendants agreed to supply a new fence as part of the Agreement. [ 57 ] The Defendants agreed to relocate the Plaintiffs at the Defendants’ sole cost.

That does not mean, nor can it be reasonably interpreted to mean, that the Defendants agreed to supply the Plaintiffs with a brand new $9,500.00 fence. [ 58 ] The Plaintiffs’ much smaller claim to remove an existing gate and extend a 4-foot fence is also tied to the ongoing issues with the Plaintiffs’ new neighbor at Lot 248. Once again, these are issues that have developed after the Agreement and were not items promised by the Defendants. [ 59 ] The Plaintiffs have not proven the fence and gate claims and they are dismissed.

Kitchen Floor [ 60 ] The Plaintiffs claim that the kitchen floor needs to be repaired to stop squeaking and floor movement. The quote from P & G Construction estimates $525.00 (labor only) to remove and repair flooring. The quote further states the ultimate costs may be higher once the floor is removed. [ 61 ] The Engineering Report noted that Ms. Boisselle reported that the kitchen flooring was “very bouncy” and that, before the move, two floor jack posts were under the kitchen floor, but had not been re-installed.

The Engineering Report went on to recommend that the floor jacks (or other support structures) had to be reinstalled “to prevent the bouncy (deflecting) floor structure”. [ 62 ] The evidence was that Mr. Bandola only returned the floor jacks to the Plaintiffs well after the relocation.

The floor jacks are apparently still in the Plaintiffs’ shed and have not been reinstalled as recommended in the Engineering Report [ 63 ] Without evidence at trial from the author of the P & G Construction quote, the Court is unable to conclude that (1) the floor needs to be replaced and (2) the ongoing issues could not be addressed by replacing the floor jacks as recommended by the Engineering Report in 2019. Accordingly, this portion of the Plaintiffs’ claim has not been proven and is dismissed.

Main Bathroom Walls [ 64 ] The evidence was that during the move, the “overjohn”, or shelf over the toilet, came off and damaged the bathroom wall. The Engineering Report noted that “cosmetic repair” of the two drywall holes in the bathroom is necessary. Photograph 11 in the Engineering Report is not in color and does not clearly show the extent of this damage. [ 65 ] The Plaintiffs’ evidence and the Engineering Report prove this damage and it was admitted by the Defendants. The quoted repair cost of $798.90, however, seems excessive given the description of the damage.

The Court’s best estimate is that the Plaintiffs are entitled to damages of $300.00 to repair and paint the damage to the two drywall holes. Kitchen Window [ 66 ] The Plaintiffs seek damages of $1,511.42 to replace their kitchen window. They allege that the window was damaged because the mobile home was not levelled for 1.5 years after the relocation. [ 67 ] The Plaintiffs did not call the author of the window quote to prove that the Defendants’ actions damaged the window. The Plaintiffs did not produce any photgraphs showing the condition of the window or extent of the alleged damage.

The Plaintiffs’ evidence does not prove that it needs to be replaced. The age of the window is also relevant. Mr. Stefaniw testified that the mobile home dated back to at least 2009, meaning that it would now be at least 13-14 years old. A new window would be a significant betterment. [ 68 ] This portion of the Plaintiffs’ claim has not been proven on the evidence and is dismissed. [ 69 ] The Plaintiffs also claim reimbursement for an invoice from T.S.W. Contracting Ltd dated May 15, 2021.

The invoice states that the contractor releveled the entrance/deck side to allow for the proper opening and closing of windows and doors. This portion of the invoice totalled $91.88, including GST. [ 70 ] The May 2021 relevelling work has been proven as a recoverable cost under the Agreement. Although the Defendants paid to relevel the mobile home in September 2020, the Plaintiffs’ evidence proves that it had to be done again in May 2021 to allow for the proper opening and closing of the windows and doors.

Settling occurs over time and accordingly this expense would be covered by the Agreement as a direct consequence of the relocation. [ 71 ] The Plaintiffs’ claim for the relevelling costs totalling $91.88 has been proven. Hot Tub [ 72 ] The Defendants agreed to move the hot tub as part of the Agreement. Any damage caused during the move would be their

responsibility. [ 73 ] The Plaintiffs seek damages of $1,322.42 for a hot tub inspection and work needed to obtain various permits for the hot tub to comply with City codes. The amounts claimed are based on a quote from a contractor (Hot Tub Man) dated May 31, 2022, and City of Calgary permit fee schedules. [ 74 ] While the Defendants agreed to move the hot tub, any existing wiring or permit issues were not their responsibility. The Plaintiffs did not call a witness to prove that the Defendants’ actions caused the wiring and permitting issues that they are now alleging.

It is equally likely that any current issues were present before the hot tub was relocated from Lot 245. [ 75 ] This part of the Plaintiffs’ claim has not been proven and is dismissed. Garden Borders/Rock [ 76 ] The Plaintiffs used decorative rock for landscaping at Lot 245 before the relocation. Mr. Bandola testified that he did not think the rocks were salvageable and that they were mixed in with grass and black dirt. He also said that it was up to the Plaintiffs to move the rock. [ 77 ] The Agreement does not specifically mention the decorative rock.

The only landscaping items that were included by the Plaintiffs were to plant sod and remove perennial plants. If the Plaintiffs wanted the Defendants to move the rock or supply new rock at Lot 247, they had the opportunity to negotiate and include this as part of the Agreement. They did not do so. [ 78 ] The garden borders are also not referenced in the Agreement. The Defendants were therefore not required to replace or rebuild these garden borders at Lot 247. [ 79 ] As neither of these claims were proven, they are dismissed. Deck Repairs [ 80 ] The Plaintiffs claim damages of $5,616.96 for deck repairs.

The supporting documentation is an invoice from P & G Construction dated March 24, 2023, totalling $3,083.85 (labor only). The work described is to tear down and replace 3 sets of stairs, handrails and skirting and staining. Material costs are set out at $2,533.11 in the Plaintiffs’ damages spreadsheet. [ 81 ] The Engineering Report identified 3 separate issues with the deck in July 2019.

These were (1) replacing the legs with posts to ensure adequate support (2) replacing or modifying the skirting around the main deck to extend to grade level and (3) adjusting the stairs to the main deck to meet Alberta Building Code requirements. [ 82 ] Clearly, there were some issues with the deck after the relocation that needed to be addressed. The evidence confirmed that the parties agreed the Plaintiffs would make various repairs to the deck themselves and receive $606.17 from the Defendants for the repairs.

While the Plaintiffs testified that this sum was insufficient, they accepted it (as a credit on rent) and the repairs were made. [ 83 ] Mr. Stefaniw testified that he repaired and levelled the deck. He stated that the deck has not moved at all since he made these repairs. [ 84 ] The Plaintiffs have continued to use and enjoy the deck. A July 2022 photograph shows that the deck is in good overall condition. [ 85 ] The Plaintiffs have not proven their claim for $5,616.96 to replace the cedar deck skirting and make other repairs to the deck.

The repairs required after the move and recommended in the Engineering Report were made and the Plaintiffs were compensated by the Defendants. The Plaintiffs have not proven that further costly and extensive repairs must be made because of the relocation based on a quote obtained nearly 4 years after the fact. [ 86 ] This portion of the Plaintiffs’ claim is dismissed. Plumbing/Plumbing Repairs Raise Mobile & Deck [ 87 ] The Plaintiffs rely on a quote from Knight Plumbing, Heating & Air Conditioning (Knight Plumbing) totalling $5,281.40.

This quote is for work to change the grading of the sewer line to bring it up to City Code. The Plaintiffs also claim $94.25 as the cost to have the quote prepared by Knight Plumbing and $200.00 for the cost of heat tape. Additionally, the Plaintiffs claim $7,785.00 for the cost to lift the mobile home so the plumbing repairs can be made. This is based on a quote from McCann’s Building Movers. [ 88 ] The Plaintiffs are obviously not plumbing experts or experts on the applicable codes and bylaws that apply to the sewer line under their mobile home.

The Plaintiffs did not call anyone from Knight Plumbing or McCann’s to testify. They also did not call anyone from the City of Calgary to speak to code compliance issues. The Court therefore has no evidence explaining the Knight Plumbing quote, why the work is required and what the appliable codes and standards are for sewer lines under mobile homes.

The Knight Plumbing quote documents do not mention any code or bylaw deficiencies. [ 89 ] The Court also has no evidence as to how the sewer connections were done at Lot 245 prior to the relocation. [ 90 ] The Court finds that the Plaintiffs’ hearsay evidence on this issue (including the Knight Plumbing quote), does not prove that the Defendants improperly connected the Plaintiffs’ plumbing and sewer line when the mobile home was relocated. As a result, the quote documents alone are insufficient to prove this claim and it is dismissed.

[ 91 ] As the plumbing repairs have not been proven on a balance of probabilities, the claim for the cost to lift the mobile home to allow these repairs is also dismissed. [ 92 ] Additionally, both Plaintiffs testified that the mobile home was sitting illegally over a City of Calgary manhole cover that was hidden by dirt prior to the relocation. Mr.

Stefaniw further stated that the mobile home could not be sold because of this and had to be repositioned on the lot. [ 93 ] However, no documents were provided supporting this claim, such as communications from the City of Calgary, and this issue was not raised in argument. While it is not clear if this claim was being advanced, it was not proven in any event. Main Bathroom Floor [ 94 ] The Plaintiffs advance a claim to replace the bathroom floor that was damaged by the frozen sewer pipe in January 2020.

The Plaintiffs argue that the Defendants’ plumber (WOM Mechanical) did not use heat tape when the sewer pipe was reconnected at Lot 247 and this caused the frozen sewer pipe and ensuing damage. [ 95 ] Mr. Stefaniw testified that heat tape was used at Lot 245 before the relocation, but this was hearsay evidence of observations allegedly made by his neighbor. He had no first hand knowledge of this issue. [ 96 ] While the Plaintiffs’ evidence established that the sewer pipe froze in January 2020, it does not prove that this was because of something done or not done by the Defendants during the relocation.

A witness from Knight Plumbing could have spoken to this issue and explained (1) why the pipe likely froze (2) if this had anything to do with the relocation and (3) if the Defendants were required to, but failed to, use heat tape at Lot 247. Absent such evidence, the Plaintiffs have not met their burden to prove this part of their claim and it is dismissed. [ 97 ] The Plaintiffs also seek reimbursement for various expenses they claim to have incurred because of the frozen pipe totalling $1,083.03. These invoices include the cost of heat tape, toilet repairs and vinyl floor repairs.

These claims are dismissed for the same reasons noted above. The Plaintiffs did not call a witness from Knight Plumbing or another plumbing expert to prove that these damages were caused by the Defendants’ plumber as part of the relocation. The Plaintiffs have not established that these expenses were incurred because of the Defendants’ breach of the Agreement. Skirting [ 98 ] The evidence was that skirting is the material that wraps around the bottom of the mobile home. It is located between the bottom of the home and the ground. [ 99 ] The Defendants replaced the skirting after the relocation.

However, the Plaintiffs say that the vinyl cap plate at the top was damaged and never replaced and the required vents were not installed properly. [ 100 ] The Plaintiffs also say that, because the mobile home must be lifted to address plumbing deficiencies, that a longer skirting must be installed. Finally, the Plaintiffs claim that the wood at the bottom of the skirting must be replaced as it is not pressure treated. The Plaintiffs state that, because this wood is in contact with the ground, it needs to be pressure treated to avoid premature rotting.

Both Plaintiffs testified that pressure treated wood was used at Lot 245 before the relocation. [ 101 ] The Plaintiffs total claim for this item is $4,518.16 consisting of labor ($1,286.25), new skirting ($2,939.79) and pressure treated wood ($292.12). The Plaintiffs rely on various quotes from P & G Construction, Rona and Home Depot. [ 102 ] The Defendants say that they have met their obligations under the Agreement as they replaced the skirting. They also rely on Mr.

Bandola’s evidence that pressure treated wood is not required and that regular, non-pressure treated wood was used at Lot 245 before the relocation. [ 103 ] The Plaintiffs have not proven on a balance of probabilities that the skirting must be replaced in its entirety. This claim is based on having to raise the mobile home to do the plumbing repairs, but the Plaintiffs have not proven that the Defendants are liable for the repairs set out in the Knight Plumbing quote as previously noted. [ 104 ] While the entire skirting does not need to be replaced, Mr.

Stefaniw’s evidence and the photographs show the damage to the vinyl cap rail and the use of duct tape to keep the skirting/venting in place. [ 105 ] The cost of these repairs would be significantly less than replacing the entire skirting. The Court’s best estimate is that 25% of the quoted P & G labor cost of $1,286.25 would be the cost to repair the vinyl cap rail crack and to do a proper repair to keep the skirting and venting in place instead of relying on duct tape.

This amount totals $321.56, which is rounded up to $400.00 to allow for materials. [ 106 ] With respect to whether pressure treated wood was required, the Court finds that the Agreement reasonably contemplated like for like replacement. Therefore, if pressure treated wood was used at Lot 245, the Plaintiffs were entitled to receive pressure treated wood at their new Lot. [ 107 ] The parties’ evidence conflicts on this point. Mr. Stefaniw said pressure treated wood was used at Lot 245, while Mr.

Bandola denied that was the case. [ 108 ] The Court concludes that the Plaintiffs’ evidence is more credible on this point and that pressure treated wood was used at the prior lot. The Court makes this finding because Mr. Stefaniw would have paid more attention to this issue at his home than Mr. Bandola would have.

[ 109 ] The Plaintiffs’ position is also supported by the Engineer’s Report which found that “All wood at grade level around the entire mobile home must be replaced with pressure-treated lumber to ensure the longevity of the construction and skirting.” [ 110 ] Accordingly, the Plaintiffs have proven this portion of their claim. As there is no breakdown for the cost to do this work only, the Court’s best estimate for the labor is $300.00. The lumber costs were not clearly broken down with reference to the various RONA invoices. The Court’s best estimate on the evidence is $200.00.

The total amount proven for the pressure treated wood replacement is $500.00. Costs Related to Perennial Plants [ 111 ] Ms. Boisselle added a handwritten term to the Agreement stating, “Removal of Perennial Plants”. Ms. Boa confirmed that this work was never done by the Defendants. [ 112 ] The Defendants argued that they were only required to dig up the perennials and not to replant them at Lot 247. The Court does not accept this restrictive

interpretation of the Agreement. The Court finds that the Plaintiffs reasonably expected that the perennials would not only be dug up, but also replanted as part of the relocation. [ 113 ] The Plaintiffs’ claim is limited to material costs as they replanted the perennials themselves. The Plaintiffs paid for garden soil ($233.60), landscape fabric ($68.15) and renting a rototiller ($36.22). These amounts are reasonable and supported by invoices. The Plaintiffs have proven this part of their claim in the amount of $337.97.

Miscellaneous Damages [ 114 ] The Plaintiffs claim the costs associated with changing their address after the move. The Court concludes that the parties did not intend to compensate the Plaintiffs for these costs as they were not included in the Agreement. The parties likely did not turn their minds to these costs as they did not relate to the physical relocation itself. Accordingly, this claim has not been proven and is dismissed. Punitive Damages [ 115 ] Punitive damages are only available in rare and exceptional circumstances.

A party’s conduct must be “harsh, vindictive, reprehensible and malicious” such that “it is deserving of full condemnation and punishment”: 321665 Alberta Ltd v Husky Oil Operations Ltd, 2013 ABCA 221 , at para 48 . Such damages must be subject to considerable judicial restraint. [ 116 ] The evidence at trial demonstrates that the parties have had various disagreements, dating back to at least the fall of 2018. These disagreements have arisen from the relocation and their differing

interpretations of the Defendants’ obligations under the Agreement. Lawyers have been involved throughout. Additionally, the Plaintiffs’ issues with their new neighbor at Lot 248 and the February 2020 rent increase have created conflict. [ 117 ] These disagreements have undoubtedly made things difficult for the parties and unfortunately led to this litigation. However, the Court finds on the evidence that the Defendants’

interpretation of their obligations under the Agreement and their conduct generally does not meet the very high threshold to establish a claim for punitive damages. [ 118 ] The Plaintiffs’ claim for punitive damages is dismissed. Defendants’ Counterclaim Unpaid Rent [ 119 ] The Defendants’ Counterclaim seeks to terminate the Plaintiffs’ tenancy for substantial breach. [ 120 ] The Defendants also seek judgment or set off in the amount of $47,640.00 for unpaid rent.

This sum is an updated figure from the $39,800.00 set out in the Counterclaim. [ 121 ] The Defendants sent a Notice of Rental Increase (the “Notice”) to the Plaintiffs on July 24, 2019. [ 122 ] The subject line of the Notice was “Notice of Rental Increase for Greenwood Village”. The Notice was signed by Dali Janic, Senior Property Manager. [ 123 ] The Plaintiffs were notified their pad rent would increase to $1,800.00 per month, effective February 1, 2020.

The Plaintiffs’ monthly rent had been $800.00. [ 124 ] The Defendants’ Notice explained the reasons for the increase as follows: We have made very effort to keep the increase to a minimum, however, an increase is required to help keep up with rising costs in the city [sic] of Calgary and to ensure a consistent level of service and maintenance within the park.

Please note that unlike the rental housing market for apartments, condominiums and houses, there is a shortage of mobile home lots in the Calgary area, creating a higher than average demand for these spots. [ 125 ] The Plaintiffs testified that they started paying $820.00 per month at some point in 2022 and have been paying $840.00 since some time in 2023.

At no point have the Plaintiffs paid the full $1,800.00 amount in accordance with the rent increase that was supposed to take effect in February 2020. [ 126 ] The Defendants’ position is that: • The rent increase was valid and communicated properly in accordance with the Mobile Home Sites Tenancies Act , RSA 2000, C

M-20 (the “ Act ”). • The Plaintiffs are bound by the rent increase as they did not terminate the Lease prior to the effective date of the increase, February 1, 2020.

The Defendants rely on section 16(4) of the Act . [ 127 ] The Plaintiffs have raised 3 defences in response to this part of the Counterclaim: • The rent increase was invalid pursuant to the Mobile Home Sites Tenancies Ministerial Regulation , Alta Reg 54/1996 (the “ Regulation ”), under the Act ; • Alternatively, the rent increase was invalid as an attempt to circumvent the Agreement by forcing an “economic eviction” ; • Finally, some or all the rent increase is statute barred under the Limitations Act , RSA 2000, c L-12 .

Was the Notice of Rent Increase Invalid under the Regulation ? [ 128 ] The Plaintiffs argue the rent increase was invalid under

section 2.1 of the Regulation as the Defendants only provided 180 days notice rather than 365 days.

Section 2.1 states: Modification of rent increase frequency set out in Act 2.1(1) The references to “180 days” in section 16(3) (

a) and (

b) of the Act shall be read as references to “365 days”.

(2) Despite section 16(3) of the Act as modified by subsection (1), a landlord shall not increase the rent payable under a tenancy agreement in respect of a periodic tenancy after the landlord has served a notice of termination on the tenant under section 13(1) of the Act . ( Emphasis added ) [ 129 ]

Section 16 of the Act states: Rent increases 16(1) A landlord shall not increase the rent payable under a tenancy agreement or recover any additional rent resulting from an increase unless the landlord gives to the tenant a written notice of the increase in rent at least 180 days before the date on which the increase is to be effective.

(2) If the tenancy agreement provides for a period of notice longer than 180 days, the landlord must give at least that longer period of notice before increasing the rent payable or recovering any additional rent resulting from the increase.

(3) A landlord shall not increase the rent payable under a tenancy agreement or recover any additional rent resulting from an increase unless (a) 180 days has passed since the commencement of the tenancy, or (b) 180 days has passed since the last rent increase.

(4) A tenant under a periodic tenancy who receives a notice under this

section and who fails to give to the landlord notice of

termination effective on or before the date the rent increase is to be effective is deemed to have agreed to the increase of rent. ( Emphasis added ) [ 130 ] The 365-day period stipulated by

section 2.1 of the Regulation only applies to section 16(3) (

a) and (

b) of the Act . Landlords under this Act can only increase rent after 365 days have passed since (1) the commencement of the tenancy or (2) the last rent increase. [ 131 ] The Lease commenced on August 1, 2014, more than 365 days before the February 1, 2020, rent increase date. Therefore, section 16(3)(

a) of the Act does not apply. [ 132 ] There was no evidence before the Court that the rent had been increased within 365 days of February 1, 2020. As a result, section 16(3) (

b) of the Act does not apply. [ 133 ] The 365-day period stipulated under the Regulation does not apply to the rent increase notice period under section 16(1) of the Act . Accordingly, the Defendant’s Notice met the 180-day requirement under the Act . [ 134 ] The Plaintiffs also argue that the rent increase was invalid under the Regulation because it was issued after the Defendants had served a Notice of Termination (“Termination Notice”). [ 135 ] The evidence on this point was unclear.

The Agreement states at paragraph 7 that “Greenwood Village will rescind its termination notice upon satisfactory completion of the move”. The Termination Notice, however, was not in evidence. There was also no evidence of any document from the Defendants rescinding the Termination Notice. [ 136 ] The Regulation refers to a Termination Notice under section 13(1) of the Act . Under this section, a landlord may terminate a mobile home site tenancy for specific purposes.

These purposes are to obtain vacant possession to change the use of the site, have it sold as a condominium or sold to a cooperative. [ 137 ] Although the Termination Notice was not put before the Court, the evidence at trial suggests it was issued by the Defendants in relation to the relocation required by the Encroachment issue. There is no evidence before the Court that the Termination Notice was issued for one of the specific purposes set out in section 13(1) of the Act . Accordingly,

section 2.1(2) of the Regulation also does not apply to invalidate the Notice. Was the Notice of Rent Increase Invalid as an Attempt to Circumvent the Agreement or the Act by Forcing an “Economic Eviction”? [ 138 ] The Plaintiffs argue that the rent increase was invalid based on the decisions of the Alberta Court of King’s Bench in Milner’s Aloha Mobile Home Park

(1998) Ltd v Jenkins , 2014 ABQB 229 , and Joma Sailaway Enterprises Partnership v. Holden , 2009 ABQB 739 . [ 139 ] While the Act does not set an upper limit on the amount rent can be increased, Milner’s Aloha Mobile Home Park , supra , is authority for the proposition that a rent increase cannot be used to otherwise circumvent the Act .

Joma, supra , is cited more generally in support of the argument that the Act was intended to provide some measure of legislative protection to mobile home tenants. [ 140 ] Having considered the evidence and the authorities cited by the Plaintiffs, the Court finds that the rent increase was invalid for the following reasons. [ 141 ] First, the rent increase, more than doubling the Plaintiffs’ monthly rent of $800.00, was extraordinarily high on its face. The Defendants’ witness, Ms.

Boa, agreed that it was “out of line” with other increases. [ 142 ] Second, the Defendants provided two conflicting reasons for the rent increase. [ 143 ] The July 24, 2019, Notice stated that “every effort” was made “to keep the increase to a minimum”, but that it was necessitated by rising costs in the City and to ensure service and maintenance in the park. [ 144 ] However, Defendants’ counsel at the time set out a very different rationale for the increase in an August 12, 2019, email to Ms.

Boisselle stating: 3) The rental increase, as aforesaid, is to deal with increased administrative and legal costs which occur on a case by case basis and are not attributable to each unit . Costs increase each time Greenwood is asked to reimburse you for things that are over and above what you contracted for. ( Emphasis added ) [ 145 ] This email from counsel confirmed that the Plaintiffs’ rent was not increased to address escalating costs from the City of Calgary or to operate and maintain the park generally.

Instead, rent was being increased to recover administrative and legal costs arising from the Defendants’ ongoing dispute with the Plaintiffs. These issues arose from the requirement to relocate the Plaintiffs and the dispute over whether the terms of the Agreement had been met. [ 146 ] Counsel’s email also confirms that the rent increase was not of general application as suggested by the July 24, 2019, Notice titled “Notice of Rental Increase for Greenwood Village”. Instead, the $1000.00 monthly rental increase was applied only to the Plaintiffs.

The rent increase was to deal with increased costs “on a case by case basis” and “not attributable to each unit”. [ 147 ] This evidence demonstrates that the rent increase was not implemented as a bona fide attempt to recover increased operating costs from all Greenwood residents as initially suggested in the July 24, 2019, Notice. Instead, this individual rent increase was intended to recover legal costs and administrative costs, presumably to convince the Plaintiffs to stop making demands under the Agreement.

This would be inconsistent with the Agreement which provided that the relocation would be at the Defendants’ sole cost.

[ 148 ] The Defendants’ witness, Ms. Boa, confirmed that the Notice increasing the Plaintiffs’ rent came from the head office in Vancouver. However, no one from the Defendants’ head office was called to testify. Furthermore, the Defendants did not call any evidence to prove that other tenants also received $1,000.00 monthly rent increases in February 2020.

The Defendants would have full control of the records setting out rent increases at Greenwood for other tenants. [ 149 ] The Court draws an adverse inference against the Defendants for failing to lead any evidence to (1) explain the rationale and bona fide nature of the rent increase or (2) demonstrate that it was applied uniformly and not just to the Plaintiffs because of the ongoing dispute over the performance of the Agreement. [ 150 ] Based on the evidence and the authorities, the rent increase was not based on a bona fide economic rationale such as increased costs at Greenwood and was not applied to all residents.

The Defendants did not call any witnesses who could explain this decision. The only reasonable inferences, on all the evidence, are that the Defendants either wanted the Plaintiffs to (1) move from Greenwood or (2) stop asserting the rights they believed they had under the Agreement. [ 151 ] A rent increase is invalid where it is not based on the landlord’s increased costs (as initially asserted), but is instead being used to achieve some other purpose, such as a lease termination or the recovery of legal costs.

In this case, that is exactly what happened, as confirmed in counsel’s email. [ 152 ] The Court finds further support for this conclusion from the following comments of the Court of King’s Bench in Joma Sailaway, supra : • “Landlord/tenant legislation such as the Act ...is designed to provide reasonable protection to mobile home park tenants.” Such legislation also attempts “to redress the imbalance of power inhering in the landlord-tenant relationship” (at para 16); • “A tenant protection purpose” is also indicated by the legislative history of the Act , including a recognition of the inconvenience and cost involved in moving a mobile home and the scarcity of mobile home parks (at para 18); • In implementing the Act , the Legislature had recognized the unique circumstances of mobile-home owners and that such tenants deserved special protection for any rent increases (at para 20). [ 153 ] In this case, the Plaintiffs went through a stressful relocation of their mobile home in June 2019.

Their only option to avoid the $1,000.00 monthly rental increase (short of litigation), was to move again, this time somewhere else in the City. The Defendants recognized that this would be challenging, as the Notice expressly identified the “shortage of mobile home lots in the Calgary area, creating a higher than average demand for these spots”.

Relocating to a different mobile home lot would have been costly and inconvenient, assuming it were even possible. [ 154 ] The Court finds that the Act cannot have been intended to permit such a significant rent increase on the facts of this case, particularly where the increase was not applied uniformly to all Greenwood residents. [ 155 ] Accordingly, the Defendants’ $1000.00 per month rent increase was invalid and is unenforceable.

The Plaintiffs’ failure to terminate the Lease under section 16(4) of the Act does not assist the Defendants because the increase was invalid from the outset: Joma Sailaway, supra , at para 62. [ 156 ] The Defendants’ Counterclaim for rental arrears is dismissed. Limitations [ 157 ] The Defendants first advanced the claim for unpaid rent as part of the Amended Dispute Note and Counterclaim filed May 19, 2023. Were it necessary to do so, the Court would have found that the rental increase for the period from February 2020 to May 2021 was statute barred.

However, this is unnecessary in light of the Court’s conclusion on the validity of the rent increase. Have the Defendants Proven that the Plaintiffs’ Conduct was a Substantial Breach of the Lease and Grounds to Terminate the Lease? [ 158 ] The Defendants also allege that the Plaintiffs have breached the Lease through their conduct. No damages are sought for this breach, but the Defendants do seek an order terminating the tenancy. This was argued briefly, as the Defendants relied primarily on the alleged breach arising from the failure to pay the rent increase. [ 159 ]

Section 21 of the Lease requires the Plaintiffs to abide by the Rules and Regulations attached as

Schedule “A” to the Lease. [ 160 ] The Defendants allege the Plaintiffs have breached Clause 15 of the Rules and Regulations which states that: BEHAVIOR The Tenant will not cause and the Tenant will ensure that the family and guests of the Tenant do not cause a nuisance or disturbance to other tenants in the Park. [ 161 ] The evidence at trial established that there have been ongoing issues between the Plaintiffs and their neighbor at Lot 248. For the purposes of this decision, it is not necessary to disclose the neighbor’s identify.

The Plaintiffs claim that their neighbor is at fault because of her failure to control her dog’s excessive barking. They also allege that the neighbor continues to put her waste and recycling bins on the Plaintiffs’ property. [ 162 ] The neighbor was not called to testify at trial. Her written complaints about the Plaintiffs that were sent to the Defendants were

not in evidence. These documents were not disclosed by the July 15, 2023, deadline in the Pre-Trial Conference Order. The Plaintiffs objected to the inclusion of these documents and this objection was upheld by the Court. The Defendants had most of these documents prior to the July 15 disclosure deadline, but did not produce them until just before trial in January 2024. [ 163 ] As a result, the Defendants’ evidence on this issue was limited to hearsay from Ms. Boa and the current Property Manager, Mr.

Bajaj. [ 164 ] The complaints made by the Plaintiffs against their neighbor that were sent to the Defendants were not in evidence. It is not clear why these documents were not included, although Ms. Boa testified that no steps had been taken by the Defendants to address the Plaintiffs’ complaints about their neighbor. She agreed that the dispute between neighbors had been allowed to “bubble over”. [ 165 ] At the end of the day, the evidence establishes only that the Plaintiffs and their neighbor have had an ongoing dispute. Undoubtedly, there have been some heated words exchanged on both sides.

However, the Defendants’ evidence does not prove that the Plaintiffs’ conduct during this ongoing dispute has breached the Rules and Regulations under the Lease, let alone that this conduct is a basis to terminate the Lease for substantial breach. [ 166 ] Accordingly, the Defendants have not proven this portion of their Counterclaim on a balance of probabilities and it is also dismissed.

Summary [ 167 ] By way of

summary, the Plaintiffs have proven their claims under the Agreement for the following items: • Shed-$503.34. • Sod- $500.00 • Bathroom walls-$300.00 • Relevelling for windows/doors-$91.88 • Skirting repairs/pressure treated wood-$900.00 • Perennial replanting costs-$337.97 • Total = $2,633.19 [ 168 ] The Plaintiffs are awarded judgment against the Defendants for $2,633.19.

The Plaintiffs are also awarded interest on this amount pursuant to the Judgment Interest Act , RSA 2000, c J-1 , from May 10, 2021 to the date of these Reasons. [ 169 ] The Plaintiffs’ remaining claims are dismissed. [ 170 ] The Defendants’ Counterclaim is dismissed. Costs [ 171 ] If the parties are unable to agree on costs, they can provide submissions to the Court in writing not to exceed three pages by March 13, 2024. The parties are reminded of the Tariff of Costs set out in this Court’s Practice Note 2. Heard on the 24 th , 25 th and the 29 th day of January, 2024.

Dated at the City of Calgary, Alberta this 13 th day of February, 2024.

A.P. Argento A Justice of the Alberta Court of Justice Appearances: Counsel, Ward Spencer for the Plaintiffs Counsel, Brody Sikstrom for the Defendants