Jagodnik v. Oudshoorn, [2015] A.R. TBEd. JL.104

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 01, 2015
• Citations: [2015] A.R. TBEd. JL.104;2015 ABQB 456

Jagodnik v. Oudshoorn, [2015] A.R. TBEd. JL.104

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. JL.104

Olga Joan Jagodnik (plaintiff) v. Will Oudshoorn (defendant)

(FL03 00929; FL03 37713; 2015 ABQB 456)

Indexed As: Jagodnik v. Oudshoorn

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

July 15, 2015.

Summary:

Two actions were consolidated for summary trial, a tort action in which the plaintiff sued the defendant for damages arising from a battery and a partition and sale application in relation to property held in their joint names. Liability was not in issue in relation to the tort action. The primary issue was the measure of damages, with the additional issue of whether damages should be reduced by reason of provocation. The issue in relation to partition and sale was the parties' interests in the property which had been in the plaintiff's exclusive possession for over 15 years.

The Alberta Court of Queen's Bench assessed the plaintiff's damages globally, including dental and TMJ injuries, temporary shoulder pain and exacerbation of her psychological problems, at $65,000. The court also awarded damages for future cost of care of $49,500, and past cost of care of $920.20. The court held that the plaintiff had not proved that her lack of capacity to earn an income was caused by the battery. Further, this was not a suitable case for punitive damages where the battery occurred in the context of a mutual altercation. While there was no provocation that would reduce the damages suffered by the plaintiff, the defendant was not acting maliciously or with premeditation. The court held that the factors to be considered in determining partition and sale under s. 17(2) of the Law of Property Act (LOPA) were not exhaustive, but should be complemented by common law principles. When the parties contributed to the purchase of a home and became joint tenants on title, there was a presumption of equal division. In rebutting this presumption, the factors under s. 17(2) were important, as was unjust enrichment, especially where one co-owner had left the property. The court awarded the defendant a one-quarter share in the increase in market value of the property ($54,429.14). The court did not aware him an equal share because, while he had an important role in the property's acquisition, he had only had a minor role in its retention. His one-quarter share in the increase was considerably more than his actual financial contribution to the property ($5,071.71) or his equity as calculated in the plaintiff's 2004 bankruptcy ($13,929.80). It reflected his ongoing interest as a co-owner, and the fact that, without his assistance, the plaintiff would not have been able to acquire the property and might not have been able to retain it. The plaintiff could purchase his interest in the property for $54,429.14.

Damage Awards - Topic 14

Injury and death - General - Condition aggravated by subsequent event (incl. subsequent injury) - See paragraphs 41 to 69.

Damage Awards - Topic 111

Injury and death - Head injuries - Jaw - See paragraphs 41 to 72.

Damage Awards - Topic 112

Injury and death - Head injuries - Teeth - See paragraphs 41 to 72.

Damage Awards - Topic 116

Injury and death - Head injuries - Mouth - See paragraphs 41 to 69.

Damage Awards - Topic 210

Injury and death - Psychological injuries - Aggravation of psychological injuries - See paragraphs 41 to 69.

Damage Awards - Topic 215

Injury and death - Psychological injuries - Post traumatic stress disorder - See paragraphs 41 to 69.

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other nonpecuniary damages - See paragraphs 41 to 69.

Damage Awards - Topic 628

Torts - Injury to the person - Assault and battery - See paragraphs 41 to 82.

Damages - Topic 1302

Exemplary or punitive damages - Assault and battery - See paragraph 82.

Damages - Topic 1545

General damages - General damages for personal injury - Aggravation of pre-existing condition - See paragraphs 62 to 66.

Damages - Topic 1017

Mitigation - In tort - Reduction due to plaintiff's conduct or provocation - See paragraphs 19 to 21.

Damages - Topic 1536

General damages - Elements of general damages - Loss or impairment of housekeeping capacity - See paragraphs 73 to 75.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - See paragraphs 76 to 81.

Practice - Topic 5255.4

Trials - General - Summary trials - Availability of - See paragraphs 2 to 11.

Practice - Topic 5255.6

Trials - General - Summary trials - Evidence and proof - See paragraphs 7 to 11.

Real Property - Topic 3733

Joint estates - Joint tenancies - Right to partition and sale - See paragraphs 83 to 126.

Real Property - Topic 3890

Joint estates - Severance of joint tenancies - Unilateral acts which result in severance - See paragraph 92.

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - See paragraph 123.

Restitution - Topic 121

Unjust enrichment - Remedies - General - See paragraphs 113 to 124.

Restitution - Topic 126

Unjust enrichment - Remedies - Statutory relief - See paragraphs 99 to 112.

Torts - Topic 3182

Trespass - Assault and battery - Assault - What constitutes - See paragraph 15.

Torts - Topic 3191

Trespass - Assault and battery - Battery - What constitutes - See paragraphs 15 to 17.

Torts - Topic 3199

Trespass - Assault and battery - Defences - Provocation - See paragraphs 18 to 40.

Counsel:

Deborah A. Miller, Q.C. (Family law Office), for the plaintiff;

Philip G. Kirman (Weir Bowen LLP), for the defendant.

This case was heard on February 4 and 5 and April 1, 2015, by Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on July 15, 2015.