Torngat Regional Housing Association Plaintiff And: Jim Goudie Defendant, 2022 NLSC 135

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Torngat Regional Housing Association v. Goudie, 2022 NLSC 135 Date : August 26, 2022 Docket : 201808G0049 Between: Torngat Regional Housing Association Plaintiff And: Jim Goudie Defendant Before: Justice Stacy Ryan Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: February 4, 2022 Appearances:

Robert R. Bradbury Appearing on behalf of the Plaintiff Natasha J. de Beer Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Dalley v. Northern Arm (Town), 2016 NLTD(G) 68; Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C.(T.D.)); Corner Brook (City) v. Bailey, 2021 SCC 29;F.H. v. McDougall, 2008 SCC 53; Power v. Hutchings, 2022 NLCA 46 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D TEXTS CONSIDERED: Black’s Law Dictionary, 11th ed.; Merriam Webster’s Dictionary, 11th ed.

REASONS FOR JUDGMENT Ryan, J.: INTRODUCTION [1] Torngat Regional Housing Association (“TRHA”), the Plaintiff, provides housing to residents in the Nunatsiavut area, namely,the communities of Rigolet, Postville, Makkovik, Hopedale, and Nain in the Province of Newfoundland and Labrador. [2] Jim Goudie, the Defendant, lives in Postville, a small town located within Nunatsiavut in the Province of Newfoundland andLabrador. Mr. Goudie received a home from TRHA in 2005 located at 4 Sunshine Hill in Postville. [3] When TRHA assigns a home to a resident, they enter into a collateral mortgage and promissory note. Mr.

Goudie was noexception to this process. [4] All was well until Mr. Goudie married his neighbor who lives at 6 Sunshine Hill in Postville. They married on July 6, 2016. [5] TRHA is claiming that Mr. Goudie breached his obligations under the collateral mortgage and promissory note. TRHAspecifically claims that Mr. Goudie failed to occupy the property allotted to him by TRHA.

[ 6 ] TRHA has made an application pursuant to Rule 17A.01, Rules of the Supreme Court , 1986, S.N.L. 1986, c. 42, Sch. D , seeking

summary judgment as there is no genuine issue with respect to a defense to their claim. If there is a genuine issue for trial, the claim can be adjudicated through the

summary trial process. [ 7 ] Mr. Goudie claims the

summary trial application is premature and that the matter is not appropriate for

summary trial. He also claims that if I find it is appropriate for

summary trial, Mr. Goudie is not in breach of the terms of the collateral mortgage and promissory note as he has occupied and continues to occupy the property. Background [ 8 ] TRHA is a nonprofit association that assists residents in the Nunatsiavut area in finding affordable housing and becoming homeowners. [ 9 ] Once TRHA provides an individual with a home, they enter into a collateral mortgage and promissory note. The defendant received a home in June 2005.

The collateral mortgage and promissory note were both executed. [ 10 ] I have attached a copy of the collateral mortgage and promissory note as an addendum to this judgment. The terms can be summarized as follows: TRHA provides a house and a promissory note is executed. The amount of the promissory note is $70,000.00. The payments are $50.00 per month for 15 years. The total amount payable in the monthly installments is $9000.00.

If the terms of the collateral mortgage are met and the payments are made, the remaining $61,000.00 is forgiven and the deed is transferred to the individual. [ 11 ] Attached to the collateral mortgage is an affidavit. The last clause states: We promise to maintain ownership and occupy this property for the duration of our mortgage agreement. We understand and agree that in the event that we do not abide by this agreement and terms and conditions set out in the mortgage that we forfit [sic] any rights to the house and land which this agreement covers. [ 12 ] Four months after Mr.

Goudie’s marriage, a letter was sent by TRHA stating that it has been brought to their attention that Mr. Goudie is not residing at his TRHA unit in Postville and that he has taken up residence in another unit in Postville. He was advised that he is permitted to vacate his property for work, medical, or educational purposes. If he vacates his property for either of those reasons, he must provide a letter from his employer, doctor, or educational institution. This policy was implemented by TRHA in 2001. [ 13 ] Mr. Goudie was asked to confirm if he is residing at his TRHA house or if he has vacated the property.

[ 14 ] On November 17, 2016, Mr. Goudie replied in writing to TRHA. He stated he has not vacated his unit. He does spend time with his spouse who lives 50 feet away; however, his son, a person on the autism spectrum, requires a quiet environment that is familiar to him in which he can ground himself. He further said that they typically return to the home several times per week to allow his son to enjoy the familiar environment. [ 15 ] His belongings remain in the home. These belongings include items such as beds, clothes, a television, and other furniture. [ 16 ] Mr.

Goudie stated his son’s situation is not something that is “cured”. Since his son has been four years old there have been long nights of meltdowns, therapy, and adjustments to the changes he has brought into his son’s life. He said he would not be forced or coerced into returning or vacating his son’s childhood home by any means and will continue this process until his son is completely comfortable in the surroundings around him. [ 17 ] On February 24, 2017, TRHA wrote another letter to Mr. Goudie stating his correspondence was reviewed and discussed by the Board of Directors.

They allowed for an adjustment period for his son’s unique circumstances but advised Mr. Goudie that he and his family would have to leave the home by April 30, 2017. [ 18 ] If he did not have his belongings removed from the home by April 30, 2017, TRHA would repossess the unit and change the locks. Mr. Goudie did not remove his belongings by April 30, 2017. On May 2, 2017, TRHA attempted to change the locks but Mr. Goudie prevented them from doing so. History of the Proceedings [ 19 ] On April 12, 2018, TRHA commenced an action seeking judgment against Mr. Goudie and in particular: a.

An order that he vacate the home and property forthwith. b. Alternatively, an order that Mr. Goudie pay an amount equivalent to the remaining principle balance of the promissory note in fulfillment of his obligations under the collateral mortgage. [ 20 ] On May 1, 2018, Mr. Goudie filed a statement of defence seeking a dismissal of the Plaintiff’s action. [ 21 ] On May 28, 2018, TRHA filed a list of documents. [ 22 ] On June 8, 2018, Mr. Goudie filed a list of documents.

[ 23 ] On March 23, 2020, Examination for Discovery took place. Mr. Goudie and a representative of TRHA participated in the Examination for Discovery. [ 24 ] On September 17, 2021, Mr. Goudie filed an interlocutory application for leave to file a counter claim against TRHA. The counter claim was specific performance seeking TRHA to deed the property to Mr. Goudie. [ 25 ] Both matters were set to February 4, 2022. TRHA consented to Mr. Goudie’s application seeking leave to file a counterclaim. [ 26 ] The

summary trial application was heard. Issues [ 27 ] There are four questions I must ask: 1. Does the application for

summary trial properly fall within Rule 17A.01 under the Rules of the Supreme Court? (threshold question) 2. If the application for

summary trial falls within Rule 17A.01, is the matter appropriate for

summary trial? (second threshold question) 3. If the threshold questions are met, is there a genuine issue for trial? 4. If there is a genuine issue for trial, can judgment be granted in favor of any party? This involves a further consideration of: a. whether I am able, on the whole of the evidence before the court, to find the facts necessary to decide the questions of law or fact or; b. whether it would be unjust to decide the issues on the application. Does the application for

summary trial properly fall within Rule 17A.01 under the Rules of the Supreme Court ?

[ 28 ] TRHA submits that they have met the threshold requirement for

summary trial and the claim can be adjudicated through the

summary trial process. [ 29 ] Mr. Goudie is suggesting this application is premature since leave was granted to file a counter claim. He also claims that if I find this matter appropriate for

summary trial, judgment should be granted in his favor. [ 30 ] I am satisfied TRHA has met the threshold requirement for

summary trial. [ 31 ] TRHA has filed the application in accordance with Rule 17A.01. A defence has been filed and the matter has not yet been placed on the trial list. This brings the matter within the Rule but TRHA must also establish an evidentiary basis for the claim. [ 32 ] In support of their application, TRHA has filed the following: a. A transcript of the evidence taken at the Examination for Discovery wherein Mr. Goudie and Judy Dicker were deposed. b. An affidavit from Margaret Fox outlining TRHA’s belief that Mr.

Goudie was in breach of his contractual obligation and TRHA’s actions arising from that belief. c. A copy of the crown grant giving TRHA title to the property. d. A copy of the collateral mortgage made on June 1, 2005. e. A copy of the promissory note. f. Correspondence between TRHA and Mr. Goudie attempting to address the issue of whether or not he has vacated the property. [ 33 ] Without going into the claim on its merits, I am satisfied TRHA has provided an evidentiary basis for the claim. Is the matter appropriate for

summary trial? [ 34 ] The second threshold question is whether or not this case is appropriate for

summary trial.

[35] The second element of the threshold test arises because of the court’s inherent jurisdiction to refuse a

summary trial if, in all thecircumstances, it is not appropriate to deal with the issues in this way. This involves a preliminary determination distinct from the inquirythat takes place at the

summary trial itself (Dalley v. Northern Arm, 2016 NLTD(G) 68). [36] A

summary trial hearing for this matter would involve the determination of a valid contract between the parties (not indispute), the terms of the contract (not in dispute), and whether or not there is a breach of that contract by failing to occupy the property.In relation to this question, the answer is found in the definition of ‘occupy’. If Mr. Goudie is found to have been occupying the property,he is not in breach of the contract. If he is found to have not been occupying the property, he has breached the contract. [37] The matter is not complex and the facts are largely agreed upon by the parties.

I am satisfied this is an appropriate matter for asummary trial. Is there a genuine issue for trial? [38] The burden is on the defendant to establish an evidentiary foundation for a defence (Marco Ltd. v. Newfoundland ProcessingLtd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C.(T.D.))). [39] Mr.

Goudie put forward evidence: a. of circumstances under which he signed the collateral mortgage and promissory note; b. of his marital situation, i.e., the marriage took place on July 6, 2016, and his wife resides at 6 Sunshine Hill in Postville, NL; c. that he still occupies the property at 4 Sunshine Hill in Postville notwithstanding his marriage; d. that his son is a person on the autism spectrum disorder.

He has dislike of change and has emotional sensitivities, fascination withparticular subjects or ideas, linguistic oddities, social difficulties, and problems processing physical sensations (taste, touch, smell, light); e. of a doctor’s note confirming his son’s diagnosis that he is on the autism spectrum; f. that his son requires “grounding” in a quiet place that is familiar to him; g. that the defendant does sleep and spend time at his wife’s home; h. of his NL driver’s license issued June 12, 2018, listing 4 Sunshine Hill as his address; i. of his Corporate Card Membership with no date, listing 4 Sunshine Hill as his address;

j. of his Bombardier warranty registration for a snowmobile. The registration is dated February 28, 2018, and lists 4 Sunshine Hill ashis address; k. of a loan statement from January 1 to December 31, 2021, listing 4 Sunshine Hill as his address. [40] There will be a genuine issue for trial if the issue in question is not spurious and the issue relates to a material fact or point oflaw that is necessary to be decided to resolve the ultimate controversy between the parties.

Obviously, there will not be a genuine issuefor trial if the responding party cannot put forward any evidence that could constitute a defence or claim in law (Marco Ltd. v.Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C.(T.D.))). [41] I am satisfied, based on the evidence presented, there is a genuine issue for trial in this matter. TRHA is claiming Mr. Goudiebreached the terms of his contract by failing to occupy the dwelling. Mr. Goudie is claiming not only has he occupied the property butthat occupation is ongoing. I find Mr.

Goudie has met his burden and has disclosed facts, which if proved, would constitute a defence tothe claim of breach of contract by not occupying the property.

Disposition of Application If there is a genuine issue for trial, can judgment be granted in favor of any party? [42] Where the court decides there is a genuine issue with respect to a claim or defence, a judge may, nevertheless, grant judgmentin favor of any party, either upon an issue or generally, unless: a. the judge is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide thequestions of fact or law or; b. it would be unjust to decide the issues on the application.

Am I able, on the whole of the evidence before me, to find the facts necessary to decide the questions of fact or law? [43] TRHA must satisfy the court that the evidentiary record is sufficient for adjudication. So long as I am satisfied there is asufficient evidentiary backdrop against which findings of fact can be made and in which there are no material unanswered questions, Ican decide the issue (Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405A.P.R. 317 (Nfld. S.C.(T.D.))). [44] The evidence presented from TRHA and Mr. Goudie is sufficient to make findings of fact.

There is affidavit evidence, atranscript of discoveries and documentary evidence. The facts are largely agreed, the issue is the occupation of the property.

Am I satisfied it is not unjust to decide the issues? [ 45 ] Factors I must consider here are stated in Marco Ltd. at paragraph 15 : (

a) the amount involved, (

b) the complexity of the matter, (

c) its urgency, (

d) any prejudice likely to arise by reason of delay, (

e) the cost of taking the case forward to a conventional trial in relation to the amount involved, and (

f) the course of the proceedings to date. [ 46 ] I find it is not just unjust to decide the issues. Taking into account the above considerations, the amount involved is significant but not enough to find it unjust to decide the issues. The matter is not complex and the facts are largely agreed. There is no urgency to the matter. There would be prejudice arising from the delay as TRHA has ceased operations and is in the process of winding down. Did Mr. Goudie fail to occupy his home thereby breaching the terms of his collateral mortgage? [ 47 ] There is no dispute a valid contract exists between the parties.

This contract was filed with the court and Mr. Goudie has not claimed that there is no valid contract. He disputes that he breached the contract by failing to occupy the property. The rules of contract

interpretation apply when deciding the meaning of occupy and whether or not Mr. Goudie has failed to occupy his home. [ 48 ] In Corner Brook (City) v. Bailey , 2021 SCC 29 , Rowe J. at paragraph 20 states: 20 This Court set out the current approach to contractual

interpretation in Sattva . Sattva directs courts to "read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract": para. 47. This Court explained that "[t]he meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement", but that the surrounding circumstances "must never be allowed to overwhelm the words of that agreement": paras. 48 and 57.

"While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court

effectively creates a new agreement": para. 57. This Court also clarified that the relevant surrounding circumstances "consist only of objective evidence of the background facts at the time of the execution of the contract..., that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting": para. 58. [ 49 ] TRHA bears the burden of satisfying the court, on a balance of probabilities that Mr. Goudie has failed to occupy the property. This means I must assess whether it is more likely than not that Mr.

Goudie failed to occupy the property ( F.N. v. McDougall , 2008 SCC 53 at para 49 ). [ 50 ] The evidence presented by TRHA, in support of its case, consist of the correspondence mentioned above, the transcript of the Discoveries and an affidavit of Margaret Fox. The Correspondence [ 51 ] The initial correspondence sent by TRHA to Mr. Goudie sent by TRHA to Mr. Goudie stated “It has been brought to our attention that you are no longer residing at 4 Sunshine Hill. There is no evidence to show how this information had been brought to their attention.

There is no evidence of inquiries made to determine whether or not Mr. Goudie was occupying the property. Affidavit of Margaret Fox [ 52 ] The affidavit of Margaret Fox outlined the procedures followed by TRHA. Her affidavit did not assist me in deciding whether or not Mr. Goudie was occupying the property. Her affidavit addressed policy, procedure, and steps the Board took to address this issue with Mr. Goudie. The Transcript of Examination for Discovery [ 53 ] Mr. Goudie’s own evidence acknowledged that he spends time at both properties.

He stated he kept all of his belongings in his home and the plan was to transition from his house to his wife’s; however, it was to be a slow transition given his son is a person on the autism spectrum. [ 54 ] He began the transition in October of 2016. They would spend a night at his wife’s home and return to their home for several nights. At the time of the Discovery for Examination, Mr. Goudie and his son were staying approximately seven nights per month at his home; however, the number of nights absent included his time away from his home for work purposes. [ 55 ] At the time of Discoveries, Mr.

Goudie’s daughter was preparing to leave the community to attend college. She had already

moved into 6 Sunshine Hill. Mr. Goudie stated she was weary of moving back and forth between homes and decided to stay in one place. [ 56 ] During the time that Mr. Goudie was not in his home, he was either away for work or at his wife’s home, which was 50 feet away. Mr. Goudie stated his work travel

schedule was heavy and contributed to the numbers of nights he was away from his own home. [ 57 ] His absence from his home for work purposes cannot lead to a finding that he is not occupying his property. By TRHA’s own policy, you are permitted to be absent for work purposes. He has been employed as a Deputy Minister for Nunatsiavut Government and through that position he is required to travel extensively. [ 58 ] When Mr.

Goudie was not in his home, he allowed family members and friends to stay there but has never charged anyone a fee to stay there. [ 59 ] Lastly, prior to giving his evidence at the Examination for Discovery, Mr. Goudie stated his address was 6 Sunshine Hill. This is his wife’s civic address. This statement is further evidence of Mr. Goudie’s intention to live with his wife at her home.

Definition of Occupy [ 60 ] Black’s Law Dictionary 11th edition defines occupy as to live or stay in. ( Black’s Law Dictionary , 11th ed, sub verbo “occupy”). [ 61 ] Merriam Webster’s Dictionary defines occupy as to reside in as owner or tenant ( Merriam Webster’s Dictionary , 11th ed, sub verbo “occupy”). [ 62 ] There is no definition of occupy contained within the terms of the contract between the parties.

Reading the contract as a whole and giving the word occupy its ordinary and grammatical meaning that is consistent with the surrounding circumstances known to the parties at the time of the formation of the contract, there is no basis upon which to find Mr. Goudie was not occupying the property. [ 63 ] It is stated in the collateral mortgage that TRHA is to provide Mr. Goudie with a house or materials for the construction of a house for which Mr. Goudie will owe TRHA money. Provided the payments are made and Mr. Goudie occupies this property, at the end of the term, it would be transferred to Mr.

Goudie. [ 64 ] The issue of the occupancy of these units had been addressed at an AGM held by TRHA on May 1, 2001, to May 3, 2001. A resolution was adopted whereby it was acknowledged there was no policy to address the issue of vacant units. This resolution was replaced at the AGM for TRHA on April 30, 2002 to May 2, 2002. This resolution states:

Whereas in Resolution #10, 2001, there is no clear definition regarding the amount of time an occupant may vacate a unit; Be it resolved that a time limit of (1) year be given to occupant(s), effective immediately. Furthermore, in the event that an occupant is in arrears, and they vacate the property, the unit will be turned back/over to the local housing committee for reallocation. [ 65 ] The purpose of this resolution is to ensure the occupant does not vacate the unit and/or leave it empty. [ 66 ] Occupy and vacate have different meanings.

Vacate is defined as “to deprive of an incumbent or occupant; to give up the incumbency or occupancy of”. This has a different meaning than occupy. [ 67 ] Whether or not the term vacate or occupy is used, it is clear that Mr. Goudie’s intention was to eventually move into his wife’s home at 6 Sunshine Hill. It is also clear that this process has begun but was not complete. [ 68 ] Taking into account the evidence presented, I find Mr. Goudie still occupying the property. Given this finding, TRHA has failed to establish on a balance of probabilities that Mr.

Goudie was not occupying the property. [ 69 ] The Application is dismissed with costs. _____________________________ Stacy Ryan Justice