) ) Judith Rossiter, Tracey Costello, Debra Williams, Bonita Rockefeller, Lois Swartz, Gregory Swartz, Jeffrey Swartz, James Douglas Swartz v. John Thomas Swartz, 2013 ONSC 159

CITATION : Rossiter et al v. Swartz and Swartz 2013 ONSC 159 COURT FILE NO.: 6005/07 DATE: 2013/01/09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Judith Rossiter, Tracey Costello, Debra Williams, Bonita Rockefeller, Lois Swartz, Gregory Swartz, Jeffrey Swartz, James Douglas Swartz and John Thomas Swartz Plaintiffs – and – Guy Brent Swartz and Timothy Carl Swartz Defendants ) ) ) ) ) ) ) ) ))))) John DiFiore, Counsel for the Defendant Timothy Carl Swartz HEARD: November 27, 2012 The Honourable Madam Justice Deborah L. Chappel JUDGMENT I.

INTRODUCTION [ 1 ] These are my Reasons for Judgment in relation to the hearing of a Counterclaim brought by the defendant Timothy Carl Swartz (“the defendant”) against all nine plaintiffs. The Counterclaim was issued in response to an action which the plaintiffs commenced on January 16, 2007 (“the action”). With the exception of the defendant John Thomas Swartz, the parties in this case are all the children of Margaret Eloise Swartz and John Thomas Swartz.

These proceedings related to disputes between the parties regarding lands municipally known as 9885 Carl Road, Port Robinson, Ontario (“the Carl Road property”). [ 2 ] The action was dismissed for delay on August 16, 2010, and the defendant elected to proceed with his Counterclaim on September 13, 2010. The plaintiffs failed to serve a defence to the Counterclaim as required pursuant to the Rules of Civil Procedure , [1] and were noted in default.

The defendant obtained default judgment against the plaintiffs Gregory Swartz, Jeffrey Swartz and James Douglas Swartz, requiring those plaintiffs to forthwith deliver to the defendant possession of the Carl Road property. Walters, J. heard a Motion brought by those plaintiffs on September 14, 2011 in which they sought an order setting aside the dismissal order, and the noting of default and the default judgment in relation to the defendant’s Counterclaim. She dismissed that Motion.

This hearing of the outstanding issues in the Counterclaim therefore proceeded on an uncontested basis. [ 3 ] The defendant seeks total damages in the amount of $44,528.32. Of this amount, he states that the sum of $20,148.32 relates to repair and labour costs that he incurred as a result of the plaintiffs’ trespass on the Carl Road property.

The balance of $24,380.00 represents a claim for lost rental income in relation to the Carl Road property as a result of the plaintiffs’ alleged actions. [ 4 ] For the reasons that follow, I have concluded that the plaintiffs are liable to the defendant for damages in the amount of $44,528.32, as claimed by the defendant. III. FINDINGS OF FACT [ 5 ] Based on the evidence adduced by the defendant, I make the following findings of fact in this matter: [ 6 ] As noted above, with the exception of John Thomas Swartz, the parties in this matter are the children of John Thomas Swartz and Eloise Swartz.

The Carl Road property was the Swartz family home where all of the Swartz siblings were raised. This property was originally owned by John Thomas Swartz and Eloise Swartz. On October 11, 1979, John Thomas Swartz transferred his interest in the property to the defendant. Subsequently, on September 30, 1988, the defendant sold his interest to the defendant Guy Swartz and his wife Charlene Swartz for the sum of $75,000.00. [ 7 ] Eloise Swartz died on March 22, 2001. At the time of her death, Guy and Charlene Swartz continued to hold a 50% interest in the Carl Road property.

Eloise Swartz’ interest in the property vested in the beneficiaries of her estate, consisting of her twelve children and John Thomas Swartz, on October 22, 2004 by Instrument Number SN53819. On the same date, the beneficiaries transferred their interest in the Carl Road property to Guy and Charlene Swartz as joint tenants, by Instrument Number SN53820. [ 8 ] On November 5, 2004, Guy and Charlene Swartz sold the Carl Road property to the defendant for the sum of $170,000.00,

which was the fair market value of the property at the time. The defendant purchased the property because he wanted to ensure that it remained in the family. He owns the property next to the Carl Road property, where he resided at the time of the purchase and continues to reside to date. [ 9 ] At the time of the defendant’s purchase of the Carl Road property, the plaintiff James Swartz, his wife Nancy Swartz and their son Tom were occupying one of the houses located on the Carl Road property (hereinafter referred to as “the blue house.”).

The defendant and James Swartz verbally agreed prior to the closing of the transfer to the defendant that James Swartz would make regular payments of $400.00 per month to the defendant commencing January 1, 2005 as rent for occupying the blue house. James Swartz registered himself as a tenant of the blue house for the purposes of hydro services and paid the hydro expenses. The defendant paid the mortgage and taxes on the property and the house insurance. [ 10 ] In 2005, James and Nancy Swartz gave the defendant only two cheques in the amount of $540.00 each on account of their occupation of the blue house.

In 2005, the defendant spoke to James Swartz twice about the need to begin making regular monthly rental payments to assist in defraying the expenses associated with the Carl Road property. By late 2005, the defendant was experiencing significant financial hardship as a result of his ownership of the property and the lack of regular rental payments from James and Nancy Swartz.

On November 25, 2005, the defendant wrote a letter to all of his siblings and his father explaining this hardship, and warning them that without regular monthly rental payments, he would need to sell the property. [ 11 ] After delivering the November 25, 2005 letter to his siblings, the plaintiff Jeffrey Swartz and his wife Dorothy Swartz offered to pay $800.00 per month to the defendant in order to occupy the blue house. The defendant agreed, and Jeffrey and Dorothy Swartz began to share the blue house with James and Nancy Swartz in early 2006.

However, Jeffrey and Dorothy Swartz never in fact paid the defendant any money in connection with their occupation of the blue house. In 2006, the defendant only received one more cheque in the amount of $540.00 from James and Nancy Swartz in relation to their occupation of the home. [ 12 ] Sometime in 2006, the defendant commenced proceedings under the Tenant Protection Act, 1997, alleging that there was a lease agreement between him and James and Nancy Swartz. He sought an order from the Landlord and Tenant Board terminating the alleged tenancy and evicting James and Nancy Swartz from the blue house.

The application was heard by the Landlord and Tenant Board on November 7, 2006. The representative who appeared on behalf of James and Nancy Swartz, Ms. Judith Callendar, requested an adjournment of the hearing on the basis that the plaintiffs had taken steps to commence the action herein, and the Statement of Claim was to be issued shortly. In addition, she raised as a preliminary objection that the Board had no jurisdiction to hear the matter since there was no Landlord and Tenant relationship between the defendant and James and Nancy Swartz.

The Board invited the parties to serve and file written submissions on the preliminary issue of whether a landlord and tenant relationship existed. It released its decision on this jurisdictional issue on May 4, 2007. In its Reasons, the Board noted that the defendant filed written submissions which had been prepared by legal counsel with the firm of Handsmith and Associates. The Board noted that the defendant’s argument was that contributions made by James and Nancy Swartz towards utilities and taxes should be considered rent or as an indicator of a tenancy agreement.

The Board concluded that there was no tenancy agreement between the defendant and James and Nancy Smith at any time. It held that according to the Tenant Protection Act, the payment of taxes, utilities and insurance are not considered a rent payment or part of a rent payment.

Based on its finding that there was no landlord and tenant relationship between the parties, the Board dismissed the defendant’s application. [ 13 ] On January 16, 2007, the plaintiffs brought their action against the defendant and their other sibling, Guy Swartz (“the action”), seeking inter alia a declaration that the Carl Road property was held in trust for their benefit, an order setting aside Instrument Number SN53820 and all subsequent transfers and mortgages, a declaration that the Estate of the late Eloise Swartz was the beneficial owner of 50% of the property as tenant in common with one or both of the defendants, and an order that the defendants provide a detailed accounting of the Estate of the late Eloise Swartz. [ 14 ] As a result of the commencement of the action, the defendant was unable to take any further steps to attempt to evict his two brothers and their spouses, could not attend on the property to maintain it, could not rent the property out to third parties to help defray expenses, and could not take steps to sell the property in order to obtain financial relief.

As noted above, the action was eventually dismissed for delay on August 16, 2010. The plaintiffs were also noted in default of the Counterclaim, and the defendant obtained a default judgment against the plaintiffs Gregory Swartz, Jeffrey Swartz and James Douglas Swartz on June 15, 2011, requiring them to deliver possession of the Carl Road property to him forthwith. On June 28, 2011, Matheson, J. made an order granting the defendant leave to issue a Writ of Possession against the Carl Road property.

As previously noted, the Motion brought by the plaintiffs to set aside the order dismissing their action, and setting aside the noting in default and default judgment in connection with the Counterclaim, was dismissed by Walters, J. on September 14, 2011. [ 15 ] The defendant was finally able to gain possession of the Carl Road property in October 2011. When the Writ of Possession was executed by the sheriff, James Swartz, Nancy Swartz and Jeffrey Swartz were in possession of the premises.

Although the plaintiff Gregory Swartz was not present when the writ was executed, I find based on the defendant’s evidence that he did occupy the property at various times during the period from January 2007 to October 2011. [ 16 ] The overall exterior condition of the Carl Road property and the interior condition of the blue house deteriorated significantly from when the defendant purchased the property in 2004 until the defendant regained possession in October, 2011.

I find that this deterioration in the condition of the property was due to the occupants’ deliberate actions, their failure to maintain the property and the defendant’s inability to gain access for the purpose of maintaining the property himself from the time when the action was commenced in January 2007 onward. With respect to the exterior of the property, I accept the defendant’s evidence that there was significant debris everywhere and the property had not been maintained.

Photographs of the exterior submitted as evidence confirm the extent of the junk which was left scattered throughout the property, and which the defendant had to remove. In short, the property was in a complete and utter shambles and state of disrepair. The outbuildings were not maintained and had to be removed. The yard and field drains had become clogged and had to be cleaned, flushed and drained.

The garage roof had been damaged as a result of the installation of a wood stove, and had to be replaced. [ 17 ] The interior of the blue home was also in a complete shambles and state of disrepair when the defendant regained possession

in October 2011. The issues with the interior included the following: 1. There was junk and garbage left all over the home which had to be removed. 2. The interior was filthy, and there was graffiti on some of the walls. 3. The doors had been removed from two of the bedrooms. 4. The panelling on the walls of a number of the rooms had been partially painted very dark colours and poorly, and there was also paint spilled on one of the floors. 5. The kitchen counter and cupboard below it had been demolished. The cupboard doors and the kitchen drawers were missing.

As a result, the counter and cupboards had to be replaced, along with the sink and faucets. 6. The waste water plumbing had been deliberately cut and redirected to the basement utility area, resulting in flooding to the room up to the ceiling. The defendant had to lower a submersible pump into the room to eliminate the flooding. 7. The gray water that had backed up in the basement utility room had infiltrated the cylindric well and the earth surrounding it, resulting in an inability to obtain a clean water supply in the water cistern.

As a result, the defendant had to decommission the water cistern and purchase and install a new one. 8. The defendant had redone the electrical system after purchasing the property, but the occupants had added exposed electrical wires and plumbing around the interior of a number of rooms which had to be removed. 9. The walls had become nesting areas for rats. 10. The pressure relief valve on the water heater had been intentionally capped so that the water heater was still running even though the tank was dry.

As a result, the defendant had to remove the water heater. [ 18 ] The defendant began the process of removing the debris and garbage from the property and carrying out necessary repairs soon after regaining possession, and he is still carrying out repairs to date. I accept the defendant’s evidence that this was a monumental task, having regard for the exceptionally disgusting state of the property when he regained possession. He has carried out most of the work himself, including plumbing, carpentry, painting and drywall work.

I accept that he has spent at least eight hundred hours so far attempting to return the property to the state that it was in when he purchased it. His wife, sister and brother in law have also assisted him extensively in carrying out the clean-up and repairs. With respect to renovation materials, the defendant used a number of items that he had in his possession as a result of renovation work that he had done on his own home, and he also received donations of flooring, counters and sinks from friends.

He has not included the value of these items in his claim for damages. [ 19 ] I have reviewed the defendant’s receipts in support of his claim of $8,148.32 which he states he spent on renovation supplies. This claim includes the sum of $4,358.67 for the new water cistern and $1,921.00 for installation of the cistern. I find that this amount is extremely conservative and appropriate having regard for the deplorable condition of the property when he regained possession.

The defendant also claims labour costs in the amount of $12,000.00, based on his estimate of eight hundred hours of work which he has put into repairing the property and removing junk and debris, at a rate of $15.00 per hour. This estimate does not include the estimated six hundred hours which the defendant’s wife, sister and brother in law have spent assisting him. I find that the amount claimed for labour costs is also extremely conservative and fair in the circumstances. [ 20 ] The defendant completed sufficient clean-up and renovation work on the blue house to be able to rent it as of the summer of 2012.

He was able to secure tenants as of July 1, 2012, for a rental amount of $500.00 per month. The defendant claims lost rental income in connection with the blue house and the surrounding property in the amount of $24,380.00. This figure is based on a monthly rental amount of $400.00, for the period from January 2007, when the action was commenced, until June 30, 2012, after deducting the amount of $1,620.00 which the defendant received from James and Nancy Swartz in 2005 and 2006. III. ANALYSIS OF CLAIM BASED ON TRESPASS TO LAND A.

Liability in Trespass [ 21 ] The defendant’s claim for damages for the cost of carrying out the clean-up and repair work on the Carl Road property, associated labour costs and lost rental income are based in part on the tort of trespass. The tort of trespass to land consists of directly and unlawfully applying force to the land of another person.

It arises when a person without lawful justification enters upon, remains upon or places or projects any object upon land with respect to which another person has a legal right of occupation and possession. [2] Liability for trespass arises regardless of the intention on the part of the defendant to engage in wrongdoing, provided that the defendant in fact engages in conduct that constitutes trespass, and does so voluntarily. [3] However, the interference with the property must be direct, rather than indirect or consequential. [4] Where the entry upon or occupation of the property is intentional, it is actionable even if the trespasser honestly but mistakenly believed that they had a lawful right of entry or that the land was theirs. [5] The commencement of legal proceedings claiming ownership or a right of occupation of the land does not in and of itself create a colour of right that shields a defendant from liability in trespass. [6] Furthermore, trespass is committed where a defendant initially enters or occupies land with permission, but then remains after permission is revoked or engages in conduct that exceeds the scope of the permission. [7] However, in these circumstances, the trespasser must be given a reasonable period of time to remove himself or herself from the property. [8] [ 22 ] A person who aids or facilitates another person to commit trespass, or counsels or directs such person to commit the tort of trespass, is deemed to be a joint trespasser, and will be equally responsible for the consequences of the trespass. [9] [ 23 ] I find that all of the plaintiffs are liable to the defendant in trespass.

With respect to James Swartz, the trespass began in 2005, when he continued to occupy the blue house without paying the defendant $400.00 per month as had been agreed upon. I accept the

defendant’s evidence that he asked at least twice prior to November 25, 2005 for regular payments for the occupation of the blue house to assist in defraying the costs associated with the Carl Road property. The defendant’s decision in 2006 to commence eviction proceedings against James Swartz clearly confirms his lack of consent to the continued occupation of the blue house. [ 24 ] With respect to Jeffrey Swartz, I find that his trespass to the Carl Road property began in early 2006, when he remained on the property without paying the $800.00 per month which he agreed to pay to the defendant.

I am satisfied that he was clearly aware that the defendant was suffering financial hardship as a result of not receiving compensation from James Swartz for the occupation of the premises, and that he was also aware that the defendant required compensation on a regular and ongoing basis in order to keep the property. [ 25 ] The remaining plaintiffs assisted and facilitated James and Jeffrey Swartz in committing trespass by commencing the action in January 2007, claiming a beneficial interest in the Carl Road property, an order setting aside the transfer of the property to the defendant and a certificate of pending litigation.

They were all clearly aware by that time that the defendant did not consent to the occupation of the Carl Road property without reasonable compensation. The initiation of that action precluded the defendant from taking further steps to evict the James and Jeffrey Swartz and their family members, selling or renting the property to third parties, and entering the property freely to maintain and repair it. The commencement of the action in which they claimed an interest in the property did not shield the plaintiffs from liability in trespass.

The failure of the plaintiffs to diligently pursue the action, resulting ultimately in a dismissal of the claim altogether, supports a finding that there was no lawful justification for their trespass to the land. B. Damages for Trespass [ 26 ] Trespass to land is a tort that is actionable per se , and therefore does not require proof of actual damages.

However, if a trespasser does cause an injury to the land which they have trespassed upon, the usual measure of damages is the amount by which the value of the land has decreased as a result of the injury. [10] The cost associated with restoring the property to the state it was in prior to the commission of the trespass is an appropriate means of carrying out the damages assessment if the court is satisfied that this cost represents a reasonable estimate of the diminished value of the property. [11] Where the cost of repair is being considered in assessing damages, the court must satisfy itself that those costs are reasonable, practical and fair in the circumstances. [12] In considering this issue, some of the factors which the court must consider are: 1.

The cost of repairs as compared to the reduction in the value of the property resulting from the trespass; 2. The time, logistics and property damage involved in carrying out the repair work; 3. The likely success of the repair efforts; 4. The reasonableness of the plaintiff’s wish to restore the property to its former state and the actual benefit to the plaintiff of the restoration work, as compared to the cost to the defendant of carrying out that work over and above the decreased value of the property; 5.

The use to which the plaintiff made the property, and the impact which the trespass had on that use. [13] [ 27 ] The principles set out above regarding assessment of damages for trespass provide some guidance to the court in carrying out the damages assessment.

The overriding principle, however, is that damages for trespass are “at large,” meaning that in assessing damages, the court should take all relevant circumstances into account and reach an intuitive assessment of the loss which it considers the plaintiff has suffered. [14] The process of assessing damages in trespass is therefore not a precise and exact science requiring the judge to engage in complex calculations or analyses regarding the change in value of the land. [ 28 ] An owner or person who has a lawful right of occupation or possession of property and who has been deprived of the property as a result of trespass is also entitled to general damages in a reasonable amount for the use of the property during the period of their dispossession. [15] The reasonable rental value of the property is an appropriate yardstick to use in assessing these damages. [16] [ 29 ] The defendant’s claim for damages in the amount of $8,148.32 on account of the injury to the Carl Road property as a result of the plaintiffs’ trespass is in my view fair and reasonable in all of the circumstances of this case.

While I did not receive any expert valuation evidence from the defendant regarding the diminution in the value of the property as a result of the trespass, I am satisfied based on the defendant’s evidence, including the photographs of the property after the defendant regained possession in October 2011, that the decrease in value was significant.

I am satisfied that the damages claimed on account of repair and labour costs and the costs associated with the cistern are moderate and conservative in comparison to the severity and extent of the damage that was inflicted to both the interior of the blue house and exterior of the property. The defendant’s plan from the outset of his ownership of the property was to lease it out to either members of his family or third parties. Having regard for this intended use of the land, his desire to restore the property to the reasonably habitable state that it was in when he purchased it was entirely appropriate.

Furthermore, I am satisfied that the defendant was able to minimize the extent of his damages by using materials and supplies which he already had on hand from renovating his own home and which were donated by friends.

He did not claim the value of those materials and supplies, nor did he advance a claim for the approximately six hundred hours of labour carried out by his wife, his sister and his brother law to restore the property to an appropriate condition. [ 30 ] It is not clear which of the plaintiffs who actually occupied the Carl Road property specifically caused the various forms of damage to the property.

However, the defendant’s inability to address this issue is directly attributable to the failure on the part of any of the plaintiffs to respond to the Counterclaim as they were required to do pursuant to the Rules of Civil Procedure . Where a wrongdoer fails to reveal facts within their knowledge, the court is entitled to presume against the wrongdoer that the facts are adverse to them. [17] With respect to the non-occupying plaintiffs, they allowed the occupation by James and Jeffrey Swartz and their family members to continue and thereby enabled the damage to occur.

They were claiming an interest in the property, and should have therefore taken steps to monitor and safeguard the condition of the property. As joint trespassers, they are equally responsible for the damage which was inflicted to the property as a result of the wrongful acts of the occupying plaintiffs. [ 31 ] The defendant’s claim of $24,380.00 for his loss of use of the property from January 2007 until June 30, 2012 is also fair and

reasonable in the circumstances. The defendant has not claimed damages under this category as against James Swartz for the period from January 2005 until December 31, 2006, or from Jeffrey Swartz for the period from early 2006 until December 31, 2006, which in my view he could have pursued given the evidence which I heard regarding the occupation of the property by those plaintiffs during the relevant time frames and their failure to compensate the defendant.

I am satisfied that it took the defendant from October, 2011, when he regained possession of the Carl Road property, until June 30, 2012 to restore the property to a reasonably habitable condition so that he could rent it out at a fair rate. When the defendant was finally able to rent the property out commencing July 1, 2012, the monthly rental was $500.00 per month.

The $400.00 per month claimed for the period from January 1, 2007 until June 30, 2012 (ie. 65 months), less the amount of $1,620.00 which the defendant received from James and Nancy Swartz, is therefore a reasonable estimate of the occupation value of the property. Although the non-occupying plaintiffs did not derive a direct benefit from occupying the premises, they were equally responsible with the occupying plaintiffs for the unauthorized use of the property and are therefore equally liable for the resulting loss to the defendant.

Quite apart from damages arising from trespass, the non-occupying plaintiffs would be liable for the lost rental income by reason of calling into question the defendant’s lawful title to the Carl Road property, and the impact which this had on the defendant’s ability to rent the property out. [18] IV.

ANALYSIS OF CLAIM BASED ON LANDLORD AND TENANT RELATIONSHIP [ 32 ] The defendant also bases his claim for lost rental income in relation to the Carl Road property specifically as against James Swartz on the existence of a landlord and tenant relationship. [ 33 ] As noted previously, the Landlord and Tenant Board determined in its Reasons released on May 7, 2007 that there was no tenancy arrangement between the defendant and James Swartz within the meaning of the Tenant Protection Act .

The question arises as to whether the defendant’s claim against James Swartz founded on a landlord and tenant relationship is now barred on the basis of the principle of issue estoppel. [ 34 ] Issue estoppel is a common law, equitable doctrine intended to avoid duplication of proceedings and the waste of judicial resources. [19] Middleton, J.A. described the principle as follows in McIntosh v.

Parent : [20] Any right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question or fact, once determined, must, as between them, be taken to be conclusively established...” [ 35 ] There are a number of preconditions to the operation of the principle of issue estoppel, as follows: 1. That the same question has been decided; 2.

That the decision was judicial in nature and was final; 3. That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies; and 4. The issue was so fundamental to the decision in the earlier proceeding that the decision could not stand without the determination of the question. [21] [ 36 ] Even where these preconditions are satisfied, a judge retains a broad discretion as to whether to apply the principle of issue estoppel.

Since it is an equitable doctrine, it must be sufficiently flexible to adapt to the individual circumstances of each case, and should not be applied where it would work an injustice. [22] [ 37 ] Decisions made by administrative tribunals, boards and officers, including those of the Landlord and Tenant Board made under the Residential Tenancies Act [23] or the former Tenant Protection Act, [24] may give rise to the doctrine of issue estoppel. [25] [ 38 ] I conclude that the preconditions to the application of the doctrine of issue estoppel have been met in this case on the issue of the existence of a tenancy agreement between the defendant and James Swartz.

The very question of whether a landlord and tenant relationship existed between these parties was decided on a final basis by the Landlord and Tenant Board. That determination was fundamental to the decision which the board made on May 7, 2007. The defendant argued that he was not given an opportunity to testify on this issue at the hearing after the jurisdictional issue was raised. However, he did not produce a copy of the hearing record that he had submitted to the Board, and he has not satisfied me that there was no documentary or affidavit evidence before the board addressing this issue.

Furthermore, it is apparent from the board’s Reasons that the defendant retained counsel to prepare written submissions on the issue of whether a landlord and tenant relationship existed. There is no evidence that the defendant’s counsel took any steps with the board to request leave to adduce further evidence on the issue. I am satisfied based that the decision of the board was made in a judicial manner. [ 39 ] I do not consider this an appropriate case in which to exercise my discretion not to apply the doctrine of issue estoppels, for a number of reasons.

First, the Tenant Protection Act , which applied to the proceeding before the Landlord and Tenant Board, clearly attempted to divert matters between landlords and tenants away from the courts, and provided that decisions of the board were binding and final. Second, section 196(1) of that legislation allowed for an appeal from a decision of the board to the Divisional Court within thirty days from the date of a decision. There is no evidence that the defendant took any steps to appeal the board’s decision.

Finally, I conclude that the application of the doctrine of issue estoppel in this case will not result in any significant injustice to the defendant, having regard for my decision outlined below respecting the defendant’s claim for compensation based on the doctrine of occupation rent. V. ANALYSIS OF CLAIM BASED ON THE DOCTRINE OF OCCUPATION RENT [ 40 ] Occupation rent is an equitable remedy which may be claimed in circumstances where a person is in occupation of the land of another. The principle of occupation rent has been described by the Ontario Court of Appeal in Young v. Bank of Nova Scotia [26] in the

following terms: If a person is in occupation without a lease, although the relationship of landlord and tenant will not exist, the law will imply a contract for payment to the landlord or a reasonable amount for the use and occupation of this land. [ 41 ] The principle of occupation rent is founded on the presumption that the parties have agreed that the occupier will pay a reasonable amount of compensation for their use of the land.

This presumption can be rebutted by evidence indicating that the parties intended that the occupier use the land without an expectation of providing compensation. [27] [ 42 ] I am satisfied that the defendant has made out his claim as against James Swartz and Jeffrey Swartz for occupation rent in the amount of $24,380.00. With respect to James Swartz, I find that there was a mutual understanding that he would pay the defendant $400.00 per month commencing January 1, 2005 for his occupation of the blue house, but that he failed to make these regular payments.

James Swartz occupied the house from January 1, 2005 until October 2011, a period of eighty two months. This would result in James Swartz owing the defendant $31,180.00, after deducting the payments which he did in fact make totalling $1,620.00. With respect to Jeffrey Swartz, he occupied the blue house from approximately January 2006 until October 2011, a period of approximately seventy months.

I accept the defendant’s evidence that there was a mutual expectation between him and Jeffrey Swartz that Jeffrey would pay $800.00 per month for the use of the property, which would result in a total amount owing of $56,000.00. There is no evidence before me to suggest that this was an inappropriate amount, and based on the description of the property which the defendant provided, I am satisfied on a balance of probabilities that this was a reasonable rent for the blue house.

Accordingly, I conclude that total damages of $24,380.00 as against both James and Jeffrey Swartz on the basis of occupation rent is more than fair and reasonable in the circumstances. [ 43 ] The defendant has also claimed compensation for lost rental income from the plaintiff Gregory Swartz. He acknowledges that Gregory Swartz was not occupying the Carl Road property when the sheriff executed the Write of Possession in October 2011. His evidence as to whether Gregory occupied the property, and if so when and for how long, was extremely limited and vague.

I am not satisfied based on the evidence that was adduced at the hearing that the defendant has made out a claim for occupation rent as against Gregory Swartz. VI. ANALYSIS OF CLAIM BASED ON UNJUST ENRICHMENT [ 44 ] The defendant also relied on the principle of unjust enrichment in support of his claim against all of the plaintiffs for lost rental income in the amount of $24,380.00. Unjust enrichment is an equitable remedy which can be claimed in circumstances where a plaintiff can establish the following three elements: 1. An enrichment of or benefit to the defendant; 2.

A corresponding deprivation of the plaintiff; and 3. An absence of juristic reason for the enrichment. [28] [ 45 ] I am satisfied that James Swartz and Jeffrey Swartz received the benefit of rent free accommodation from their occupation of the blue house, as detailed previously in these Reasons. I also accept the defendant’s submissions that the remaining plaintiffs supported and benefitted from the continued occupation of the Carl Road property by James and Jeffrey Swartz in order to advance their own claim for an interest in the land.

In the plaintiffs’ Statement of Claim, at paragraph 18, the plaintiffs relied on James Swartz’ occupation of the land as evidence that the plaintiffs had an interest in the land. I find based on the defendant’s evidence that all of the plaintiffs attended at the Landlord and Tenant Board hearing in opposition to the defendant’s attempt to evict James Swartz from the property.

This further supports my conclusion that all of the plaintiffs derived a benefit from the occupation of the land, in that they relied on that occupation to bolster their collective claim to a beneficial interest in the property. [ 46 ] I further accept the defendant’s submissions that the combination of the actions of the occupying plaintiffs and the commencement of the action by all of the plaintiffs created a cloud on the defendant’s title, which resulted in a deprivation to the defendant.

Specifically, the defendant was unable to secure rental income on the property, as he intended to do when he purchased it, or alternatively to sell the property so as to avoid having to incur the expenses associated with the property. [ 47 ] Finally, I conclude that there was no juristic reason for the deprivation to the defendant.

The plaintiffs did not diligently pursue their claims relating to the property, with the result that those claims were ultimately dismissed by the court. [ 48 ] With respect to the remedy for unjust enrichment, the Supreme Court of Canada has held that a large measure of remedial flexibility is required in order to deal with the circumstances of each case in a fair and just manner. [29] It has held that a monetary remedy “must match as best it can, the extent of the enrichment unjustly retained by the defendant.” [30] The evidence in this case indicates that the defendant was able to rent out the blue house at the rate of $500.00 per month once he regained possession.

Occupation rent is an appropriate measure for damages for unjust enrichment. [31] All of the plaintiffs benefited from the occupation of the premises for the period from January 2007, when the action was commenced, until October, 2011, a period of fifty eight months. At a rental rate of $500.00 per month, this would result in damages of $29,000.00. Accordingly, I conclude that the amount of $24,380.00 which the defendant claims based on unjust enrichment is fair and reasonable in the circumstances, and that all of the plaintiffs are liable to the defendant for these damages. VII.

COSTS AND TERMS OF ORDER TO ISSUE [ 49 ] The defendant claims costs in connection with the Counterclaim in the amount of $9,258.81. I have considered the defendant’s Bill of Costs, as well as the principles relating to costs set out in Rule 57.01 of the Rules of Civil Procedure . I conclude that the costs claimed are fair and reasonable in the circumstances.

In reaching this conclusion, I have taken into consideration the fact that the Counterclaim was necessitated by the commencement of the action by all plaintiffs, which was ultimately dismissed outright due to the plaintiffs’ failure to pursue the proceeding diligently.

[ 50 ] Based on the foregoing, an order shall issue upon the following terms and conditions: 1. The plaintiffs shall pay the defendant Timothy Carl Swartz damages in the total sum of $44,528.32, payable on a joint and several liability basis. 2. The Plaintiffs shall pay the defendant Timothy Carl Swartz costs of the Counterclaim herein in the total amount of $9,258.81, inclusive of disbursements and HST, payable on a joint and several liability basis. 3. This order bears interest at the rate of 3% per annum from its date. _______________________________________ Honourable Madam Justice Deborah L.

Chappel Released: January 9, 2013 CITATION : Rossiter et al v. Swartz and Swartz 2013 ONSC 159 COURT FILE NO.: 6005/07 DATE: 2013/01/09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Judith Rossiter, Tracey Costello, Debra Williams, Bonita Rockefeller, Lois Swartz, Gregory Swartz, Jeffrey Swartz, James Douglas Swartz and John Thomas Swartz Plaintiffs – and – Guy Brent Swartz and Timothy Carl Swartz Defendants REASONS FOR JUDGMENT The Honourable Madam Justice Chappel Released: January 9, 2013