SCHEDULE A

Court File No.

OTTAWA
SMALL CLAIMS COURT
BETWEEN:
SAIDO GASHAN and ABDULLAHI ALI

Plaintiffs
- and -

TIMBERCREEK ASSET MANAGEMENT INC., MUSTANG EQUITIES INC., and

TIMBERCREEK PROPERTY SERVICES INC.

Defendants

STATEMENT OF CLAIM

1. The Plaintiffs claim the following relief jointly and severally against the
Defendants:

(a) General Damages for Negligence in the amount of $1,500.00;

(b) Damages for Breach of Contract in the amount of $8,760.00

for rent from April 2018 to October 2018;

(c) Punitive damages in the amount of $14,740.00;

(d) Pre-judgment and post-judgment interest in accordance with

the provisions of the Courts of Justice Act, R.S.O. 1990, c.
C.43;

(e) Costs of this action; and

 (f) Such further and other relief as to this Honourable Court may
seem just.

A. THE PLAINTIFFS

2. The Plaintiffs Saido Gashan (“Gashan”) and Abdullahi Ali (“Ali) are

individuals residing in Ottawa, Ontario, and at all material times have

resided in the Defendants’ property located at 2827-D Sandalwood Drive

(“the Plaintiffs’ Unit”), in Ottawa’s Heron Gate Community.

3. Ali received his master’s degree in social work in 2016, and has since been

a pillar of the community, working for seven (7) years as a social worker in

the Somali Centre for Family Services, located in Ottawa. At all material

times, Ali was a member of the Herongate Tenant Coalition

4. Gashan is a mother of six (6) children and a grandmother to one (1) child.

She is currently completing a course in Early Childhood Education at

Algonquin College, after completing her Adult Highschool Diploma in 2017.

Gashan also works as a custodian for the municipal school board and is a

pillar of her community. At all material times, Gashan was a member of the

Herongate Tenant Coalition.

5. The Plaintiffs have lived in Heron Gate Village since 1999, their first unit

was at 2840 Baycrest Drive, and they lived there for ten (10) years. They

then moved to 2816 B Sandalwood Drive until about April 2015. Following

this, they moved to 2827 D Sandalwood Drive until on or about October 5,

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 2018. At all material times they resided in Heron Gate Village with their

family of nine (9) including: Ali’s two (2) parents, six (6) children and their

one (1) grandchild.

B. THE DEFENDANTS

6. The Defendant, Timbercreek Asset Management Inc., is a corporation

registered in the Province of Ontario with its head office in the municipality
of Toronto at 25 Price Street. It is incorporated pursuant to the laws of
Ontario.

7. The Defendant, Mustang Equities Inc., is a corporation registered in the

Province of Ontario with its head office in the municipality of Toronto at 25

Price Street. It is incorporated pursuant to the laws of Ontario.

8. The Defendant, Timbercreek Property Services Inc., is a corporation

registered in the Province of Ontario with its head office in the municipality

of Toronto at 25 Price Street. It is incorporated pursuant to the laws of

Ontario.

9. The Defendants form an affiliated group of asset management companies,

with certain common directors, specializing in real estate assets and

property management. The Defendants own and/or manage rental

properties in Ottawa, including a division of townhouses located in southern

Ottawa between the streets of Sandalwood Drive, Heron Road and

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 Baycrest Drive known as Heron Gate Village (“Heron Gate Village”), in

which the Plaintiffs have resided at all material times.

10. On or about May 7, 2018, the Defendants announced that Heron Gate

Village would be demolished. Residents were told they would need to

move from their homes by September 30, 2018.

11. In its May 7, 2018 notice, the Defendants stated that a quarter of the Heron

Gate Village townhouses were no longer viable, and that the

interconnected nature of the homes meant that the structure of all the

homes was compromised.

C. THE HERONGATE TENANT COALITION

12. In response to the Defendants’ May 7, 2018 announcement, residents

came together and formed the Herongate Tenant Coalition (“HTC”).

13. The HTC’s stated goal is to advocate for the interests of Heron Gate
Residents and to prevent the destruction of their Herongate Community.

14. HTC relied on social media, peaceful demonstrations, community

engagement, and meetings with local politicians in its advocacy efforts.

HTC members also supported Heron Gate residents in accessing any legal

recourse available to assist residents.

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15. As members of HTC, the Plaintiffs have participated in HTC’s various

lawful and peaceful activities.

D. THE TENANCY AGREEMENT

16. On or about April 2015, the Plaintiffs entered into a tenancy agreement with

the Defendants (“the Tenancy Agreement”). The Tenancy Agreement

outlined, among other things, that the Defendants were to provide

adequate living accommodations in exchange for consideration, in the

amount of $1,460.00 per month.

17. The Tenancy Agreement also outlined the Defendants’ responsibilities to

the Plaintiffs which included, a duty to repair.

18. The Plaintiffs state and it is a fact that, as tenants, they were required to

notify the Defendants of any damage to their unit in writing. In turn, the

Defendants were required to inspect and repair the damage in question.

19. In the alternative, if the Defendants disagreed with the Plaintiffs about the
damage, or their responsibility to repair the damage, the Defendants were
to communicate this to the tenants.

20. In either of the above circumstances, the Defendants were required to

respond to the Plaintiffs’ written notice to satisfy the obligations of a

landlord pursuant to the Residential Tenancies Act, 2006, S.O. 2006, c. 17

( “Residential Tenancies Act”).

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E. THE DISREPAIR IN THE PLAINTIFFS’ UNIT

21. In 2015, the Defendants began to force residents into different units to

begin their demolition of Heron Gate Village. The Plaintiffs’ former unit was

one of the units to be demolished, they were thus forced to move to the unit

located at 2827-D Sandalwood Drive. The Plaintiffs’ Unit contained four (4)

bedrooms, two (2) floors, two (2) bathrooms, and a basement, they began

living in it on or about April 2015.

22. The Plaintiffs state and it is a fact that soon after moving into their new unit

they became aware of its serious defects and took actions to mitigate their

injury.

23. On or about March 20, 2017, the Plaintiffs contacted a Municipal Bylaw

Officer to notify them of several issues in the Unit. The Bylaw Officer issued

the following findings on or about April 6, 2017:

(a) The front entrance stoop is damaged and deteriorated;

(b) The bottom near the ground is decayed and has a large

opening around the entire stoop;

(c) Skunks and other vermin are using the stoop area as a den;

(d) The top of the concrete stoop is deteriorated and uneven;

therefore, the Defendants must repair or replace the entire stoop;

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 (e) The lockset and the cover on the front entrance door is loose,

therefore the whole lockset must be repaired or replaced;

(f) The bathtub finish is damaged and therefore must be

repaired or replaced; and

(g) The kitchen ceiling paint is showing evidence of deterioration,

paint is bulging in two spots, and is a dark colour and therefore must

be repaired and painted.

24. While some of the above work has been completed, particularly the repair

work to the front entrance stoop, the Defendants ignored the other issues

faced by the Plaintiffs, further detailed below.

25. The Plaintiffs state and it is a fact that since May 2017, the Defendants

failed to address the further serious issues in their unit, such as the

basement, which was leaking persistently. As a result:

(a) The basement of their unit developed a serious mold

problem;

(b) The Plaintiffs could not enjoy the use of their basement;

(c) The Plaintiffs could not reasonably enjoy their unit overall;

(d) The Plaintiffs’ belongings were damaged by the water in the

basement; and

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 (e) The Plaintiffs faced mental distress because they have been

concerned about the health and safety of their family.

26. The Plaintiffs state and it is a fact that they submitted multiple work orders
to notify the Defendants of the leaking basement in their unit, but the
Defendants failed to respond to these work orders.

F. THE DEFENDANTS’ FAILURE TO RESPOND TO WORK ORDERS

27. On or about May 3, 2017, Gashan submitted a work order to the

Defendants’ office that indicated the basement in her unit was leaking, and

that her belongings were damaged (“Work Order 1”). The Defendants,

however, failed to respond to Work Order 1.

28. On or about May 5, 2017, Gashan submitted another work order to the

Defendants’ office, which repeated that the basement in her unit was

leaking (“Work Order 2”). The Defendants, however, failed to respond to

Work Order 2.

29. The Plaintiff was forced to file yet another Work Order on or about October

31, 2017, (“Work Order 3”). Work Order 3 stated that her basement

flooded and requested that someone come to check the issue. The

Defendants failed to respond to Work Order 3.

30. The Defendants did not respond to Work Order 1, 2, or 3. During this time,

the Plaintiffs were subjected to a basement that had flooded, leaked,

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 developed mold, and caused damage to furniture and other belongings.

Each of the Work Orders indicated that the Defendants’ representatives

could enter the Plaintiffs’ Unit at any time to inspect and repair. Despite the

Plaintiffs’ repeated attempts to cooperate with the Defendants, the

Defendants did not respond to any of the Work Orders.

G. THE PLAINTIFFS’ FURTHER WRITTEN NOTIFICATIONS

31. On or about November 8, 2017, the Plaintiff Gashan notified Paul Boutros,

the Defendants’ former Property Manager, of the basement leakage (“the

November 2017 Email”).

32. In her November 2017 Email to Boutros, Gashan indicated that she

submitted Work Orders regarding the flooding and leaking in her basement,

that there was no response and that the constant flooding was causing

problems for the occupants of the unit, her family. In addition, she included

photo attachments of the sitting water on the carpets in her unit. Once

again, the Defendants failed to respond to Gashan’s repeated requests to

have the damage assessed and repaired.

33. On or about June 29, 2018, Ali presented a document to the Defendants’

Office indicating the following:

(a) His name

(b) The unit;

(c) How long he resided in the unit;

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 (d) The date;

(e) The repair and maintenance issues in his unit;

(f) The steps he took to resolve the issues; and

(g) The Defendants’ response.

34. On or about July 14, 2018, Gashan submitted another document with the

foregoing information (“the 2018 Notices”). By July 14, 2018, the

Defendants had received six (6) written communications indicating that the

Plaintiffs’ Unit required maintenance, to which the Defendants never

responded.

H. THE JULY 23, 2018, FLOOD

35. On or about July 23, 2018, the Plaintiffs’ basement was severely flooded as

a result of heavy rain and the poor state of the Plaintiffs’ basement. At this

point, the water in the basement had flooded to approximately six inches.

36. Based on the Defendants’ pattern of not responding to any of the written

notices given to them, the Plaintiffs contacted the City of Ottawa’s Bylaw

Office on or about July 25, 2018 to report the basement leaks, mold,

damage to furniture and the walls.

37. On or about August 2, 2018, the Bylaw Inspector ordered the Defendants

to repair the foundation of the Plaintiffs’ basement to make it waterproof in

order to prevent any further flooding in the Plaintiffs’ Unit. The City’s Bylaw

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 Inspector ordered the Defendants to correct the damage by September 6,

2018.

38. Instead of following the August 2, 2018 Order, the Defendants appealed to

the Property Standards and License Appeal Committee (“PSLAC”), and a

hearing was held on or about September 19, 2018 for which the Plaintiffs

were not given notice and to which they were not a party.

I. THE PSLAC APPEAL

39. In their appeal to the PSLAC, the Defendants contested their August 2,

2018 Order and requested that PSLAC cancel the Order based on the

following alleged facts:

(a) Prior to the July 23, flooding, there was no known history of

flooding in the Plaintiffs’ basement;

(b) There was no history of the Plaintiffs complaining of leaking

or flooding in their basement;

(c) The Defendants inspected the basement on August 13, 2018,

and found no evidence of defects that could have caused water to

infiltrate the basement;

(d) The July 23, 2018 flood was caused by a hole in the Plaintiffs’

recreation room window, made either by the Plaintiffs or the previous

occupants;

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 (e) The cost to fix the rear yard foundation and to waterproof the

exterior wall could cost as much as $12,656.00, including Harmonized

Sales Tax; and

(f) The Plaintiffs are active with HTC and have groundlessly filed

the Property Standards Complaint in bad faith.

40. The Plaintiffs state and it is a fact that the Defendants fraudulently

misrepresented material facts before the PSLAC, including but not limited

to:

(a) The allegation that the Plaintiffs contacted the Bylaw Officer
in bad faith;

(b) That the Defendants were not aware of any complaints about
flooding prior to July 23, 2018;

(c) That the flooding was caused by a hole in the recreation room
window; and

(d) The Plaintiffs conspired with the HTC to punish the

Defendants.

41. Notwithstanding the Defendants’ fraudulent statements and

representations, the PSLAC decided to uphold the validity of the August 2,

2018 Order of the City’s Bylaw Inspector. The PSLAC also found that the

work done by the Defendants to correct the issue, namely, filling the hole in

the recreation room with caulking, was satisfactory provided that the unit

would be vacated by the end of September 2018

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J. THE DEFENDANTS’ NEGLIGENCE

42. The Plaintiffs rely on the following facts for their claim of negligence:

(a) The Defendants owed the Plaintiffs a duty to maintain a safe

unit for the occupants;

(b) The Plaintiffs notified the Defendants that their unit required

maintenance on more than one occasion and therefore the

Defendants knew, or ought to have known, that the Plaintiffs’ Unit was

in disrepair;

(c) The Defendants knew or ought to have known that a leaky

basement would cause, among other things, damage to furniture,

mold, and other issues for tenants;

(d) The August 2, 2018 Order from the Bylaw Inspector identified

the foundation in the Plaintiffs’ Unit as the source of the basement’s

leaks and floods;

(e) The Defendants knew or ought to have known that a leaky

basement would interfere with the Plaintiffs’ right to reasonable

enjoyment of their property;

(f) The Defendants breached the required standard of care by:

(i) Failing to respond to Work Orders 1, 2, and 3;

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 (ii) Failing to respond to the Plaintiffs’ November 2017 Email;

(iii) Failing to respond to the Plaintiffs’ 2018 Notices;

(iv) Failing to inspect the Plaintiff’s Unit; and

(v) Failing to repair the Plaintiff’s leaky basement.

(g) As a result of the leaky basement, the Plaintiff has suffered

the following injuries:

(i) The basement of their unit developed a serious mold

problem;

(ii) The Plaintiffs could not enjoy the use of their basement;

(iii) The Plaintiffs could not reasonably enjoy their unit overall;

(iv) The Plaintiffs’ belongings were damaged by the water in the

basement; and

(v) The Plaintiffs suffered mental distress based on their concern

for the health and safety of their family.

(g) But for the failure of the Defendants to meet the required standard of

care, the Plaintiffs would not have suffered the damages and losses

detailed above;

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 (h) In the alternative, but for the failure of the Defendants to meet the

required standard of care, the Plaintiffs would not have suffered the extent

of injury they suffered; and

(i) The injuries suffered by the Plaintiffs were a reasonably foreseeable

result of the Defendants’ breach of their duty of care.

43. The Plaintiffs took several steps to prevent further loss and injury, including

the following:

(a) Filing repeated unanswered Work Orders and

communications;

(b) Communicating with the Defendants’ Property Manager via

electronic mail;

(c) Submitting the 2018 Notices to the Defendants; and

(d) Contacting the City of Ottawa’s Property Standards Bylaw

Office on multiple occasions.

44. The Plaintiffs plead and rely upon the Residential Tenancies Act and the

Occupiers' Liability Act, R.S.O. 1990, c. O.2.

K. THE DEFENDANTS’ BREACH OF CONTRACT

45. The Plaintiffs rely on the following facts for their claim of Breach of Contract

against the Defendants:

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(a) The Defendants and Plaintiff entered into a Tenancy

Agreement on or about April 2015;

(b) The Tenancy Agreement required the Plaintiffs to pay

monthly consideration in exchange for a habitable, safe residence;

(c) The Tenancy Agreement required the Plaintiffs to notify the

Defendants of disrepair and, in turn, the Defendants were required to

repair the damage, or to provide a response to the Plaintiffs’ written

notification;

(d) The Plaintiffs faithfully executed their obligations under the

Tenancy Agreement, including the requirement to provide written

notice of damage;

(e) The Defendants materially breached their obligations

pursuant to the Tenancy Agreement in the following ways:

(i) Failing to respond to the Plaintiffs’ written notices;

(ii) Failing to assess the damage to the basement in the

Plaintiffs’ Unit;

(iii) Failing to repair the cause of the leaks in the Plaintiffs’

basement;

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 (iv) Failing to maintain a good state of repair in the Plaintiffs’

Unit; and

(v) Failing to fulfil the obligations of a landlord pursuant to the

Residential Tenancies Act.

(f) Based on the Defendants’ failure to fulfil their contractual and

statutory obligations under the Residential Tenancies Act, the

Plaintiffs suffered the following injuries:

(i) Mould in their basement;

(ii) Mental distress;

(iii) Loss of their right to reasonable enjoyment of their property;

and

(iv) Damage to the belongings which were in the basement.

(g) Based on the Defendants’ breach of the Tenancy Agreement

and the subsequent injury suffered, the Plaintiffs are entitled to an

abatement of rent as outlined in S. 30(1) of the Residential Tenancies

Act.

(h) In the alternative, the Plaintiffs state that the requested

damages pursuant to S.30(1) of the Residential Tenancies Act are

actionable per se, and specific damages need not be proven.

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L. PUNITIVE DAMAGES AGAINST THE DEFENDANTS

46. The Plaintiffs claim punitive or exemplary damages against the Defendants

based on the following facts:

(a) The Defendants knew that the Plaintiffs’ Unit required repair;

(b) The Defendants prioritized their commercial interests over

their statutory duties to the Plaintiffs;

(c) The Defendants ignored the seriousness of the Plaintiffs’

issues;

(d) The Defendants displayed reckless disregard for the

Plaintiffs’ safety, health and overall wellbeing;

(e) The Defendants purposely ignored the Plaintiffs’ numerous

Work Orders and allowed the Plaintiffs’ Unit to dilapidate for the

purpose of encouraging them to find alternative housing;

(f) The Defendants breached their obligations outlined in the

Residential Tenancies Act, including but not limited to, their

responsibilities outlined at S. 20(1);

(g) The Defendants alleged that the Plaintiffs conspired with HTC

to punish the Defendants for being forced to find alternative housing;

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 (h) By alleging that the Plaintiffs were part of an HTC conspiracy,

the Defendants attempted to interfere with the Plaintiffs’ freedom of

speech and association;

(i) The Defendants made fraudulent statements and

representations to the PSLAC, including that the Defendants were

unaware of the leaking in the Plaintiffs’ Unit and that the Plaintiffs

were merely attempting to avoid having to move; and

(j) At all material times, the Defendants’ conduct was reckless,

intentionally damaging, and high-handed.

Date: March 25, 2019 ____________________________

HAMEED LAW
Barristers and Solicitors
43 Florence Street
Ottawa Ontario
K2P 0W6

YAVAR HAMEED
LSO #: 44763A
Tel: (613) 627-2974
Fax: (613) 232-2680
E-mail: yhameed@hameedlaw.ca

Lawyer for the Plaintiffs

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