



COURT OF APPEAL FOR ONTARIO

CITATION: VanEvery v. VanEvery-Albert, 2016 ONCA 817

DATE: 20161103

DOCKET: C61743

Blair, Epstein and Huscroft JJ.A.

BETWEEN

Wayne Clare VanEvery

Appellant/Plaintiff

and

Caroline
    Mary VanEvery-Albert and Seth
    James LeFort

Respondents/Defendants

Mark D. Staats and Brenna Staats, for the appellant

P. Alan R. Giles, for the respondents

Heard and released orally: October 31, 2016

On appeal from the judgment of Justice R. John Harper of
    the Superior Court of Justice, dated July 6, 2015.

ENDORSEMENT

[1]

This appeal centres around the trial judges award of general damages in
    the amount of $100,000 and punitive damages in the amount of $75,000 awarded to
    the respondents in circumstances arising out of the sale of a farm property on
    the Six Nations of the Grand River reserve.  We are all of the view that both
    awards must be set aside.

[2]

The award of punitive damages cannot stand because punitive damages were
    neither pleaded nor sought by respondents counsel in argument at trial and on
    appeal, Mr. Giles fairly acknowledged there was little he could say with
    respect to the punitive damage claim.

[3]

In any event, the trial judges reasons reveal no analysis as to how and
    on what basis he arrived at an amount of $75,000, an amount that, in the
    circumstances, we consider could not be justified.

[4]

It would appear from the trial judges reasons that he awarded general
    damages for harassment and mental distress.  Respectfully, however, he
    mischaracterized the basis for the respondents claim.  No claim for damages
    for harassment or mental distress is pleaded, although in support of their
    claim for an order restraining the appellant from harassing them, the respondents
    relied on allegations that they experienced anxiety and stressors.  The
    respondents gave evidence of experiencing these factors but no expert medical
    evidence was led to support a link between their experiences and the effects
    they claimed.  The trial judge was clearly upset about the appellants conduct
    towards the respondents as he saw it and his damage award appears to reflect
    that view.  Here, respondents counsel sought to support the general damage
    award on the basis of the value of the chattels removed from the farm by the
    appellant.  However, there is no claim for damages for conversion of the
    chattels and, as noted, the trial judges award is based on the appellants
    alleged harassing conduct, not the removal of chattels.  The only pleaded claim
    that might apply is a claim for damages for loss of use and enjoyment of the
    lands and premises in the amount of $40,000, considerably less than the damages
    awarded, but the conduct alleged does not pertain to that type of claim which
    relates to a proprietary interest in title.

[5]

At the end of the day, respectfully, we accept the appellants
    submission that the trial judges reasons do not permit us to conduct an
    effective appellate review in relation to the damage claim.  We do not know how
    or why he arrived at his unfavourable credibility findings against the
    appellant (to the extent that he did) or how and why he arrived at his
    calculation of the amount of damages.

[6]

Accordingly, an order will go setting aside the award of general damages
    and the award of punitive damages.

[7]

The respondents nonetheless achieved considerable success at trial. 
    Without accepting the trial judges analysis with respect to costs, we do not
    think that the costs he awarded were unreasonable given the nature and
    complexity of this five day trial.  Accordingly, we do not interfere with his
    order as to costs.

[8]

The appellant is entitled to his costs of the appeal fixed in the amount
    of $10,000 inclusive of disbursements and all applicable taxes.

R.A.
    Blair J.A.

Gloria
    Epstein J.A.

Grant
    Huscroft J.A.


