Krueger v. Jaipaul, 2013 ABQB 650

Court of Queen ’ s Bench of Alberta Citation: Krueger v. Jaipaul, 2013 ABQB 650 Date: 20131101 Docket: 1203 14846 Registry: Edmonton Between: Dale Krueger Plaintiff/Respondent - and - Deo Jaipaul Defendant/Appellant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice S.J. Greckol _________________________________________ ______________ I. Introduction [ 1 ] The Respondent, Dale Krueger, filed a civil claim in the Provincial Court of Alberta against the Appellant, Deo Jaipaul, for $25,000 plus costs. Mr.

Krueger was a tenant in an apartment building owned by Mr. Jaipaul from June 2010 to November 2011. Mr. Krueger failed to pay his rent for September and October 2011. As a result, Mr. Jaipaul issued a notice on October 11, 2011 that his tenancy was being terminated effective October 26 th . On November 15, 2011, Mr. Jaipaul obtained a court order confirming termination of the tenancy and requiring that Mr. Krueger vacate the premises by November 17, 2011. Mr. Krueger was arrested in early November and was in custody until the end of that month. He asked two friends, Ms. Morrey and Mr.

Cole, to store his belongings. While they did

take certain items from the premises, the bulk of Mr. Krueger’s belongings were still there on November 13, 2011 when Mr. Jaipaul asked Mr. Cole to “get rid of the stuff” in Mr. Krueger’s apartment and paid him to do so. Mr. Krueger claimed he was entitled to damages against his former landlord for the value of the items removed from his apartment and disposed of by Mr. Jaipaul and Mr. Cole. The learned trial judge agreed. Mr. Jaipaul appeals the finding of liability. II. Facts [ 2 ] The chronology of events is: 1. June 2010 - Mr. Krueger took up tenancy in Mr. Jaipaul's apartment building. 2.

October 11, 2011 - Mr. Krueger was given notice his tenancy was being terminated effective October 26, 2011. 3. November 2011 - Mr. Krueger was incarcerated. 4. November 15, 2011 - Mr. Jaipaul obtained an order from Prov Ct Judge Haymour confirming termination of the tenancy as of October 26, 2011, granting Mr. Jaipaul possession of the premises effective November 17 and awarding him judgment for rental arrears, per diem rent until vacant possession, plus costs. 5. December 1, 2011 - Mr.

Krueger filed a civil claim in the Provincial Court of Alberta for $25,000, claiming the value of the goods removed from his apartment while he was in lawful possession of the premises, and for pain and suffering. The claim subsequently was amended to clarify certain of the allegations. Mr. Jaipaul filed a dispute note and counterclaimed for $14,379. 6. July 10 and August 20, 2012 - the trial proceeded to hearing. 7. August 31, 2012 - the trial judge granted judgment in favour of Mr. Krueger. 8. September 7, 2012 - judgment in favor of Mr. Krueger was entered. 9. September 28, 2012 – Mr.

Jaipaul filed a notice of appeal to the Court of Queen's Bench. 10. September 6, 2013 – The appeal was heard. [ 3 ] The trial judge made a number of findings of fact. He found that near the end of October 2011, Mr. Jaipaul removed the door to Mr. Krueger’s premises and left the suite unsecured for at least two days. He found that a number of items belonging to Mr. Krueger went missing during that time, including $750 in cash, a computer worth $500, a wallet and identification worth $100 and three pairs of jeans valued at $150. He calculated the total of these amounts to be $1,000.

Obviously, that was in error as the total is $1,500. However, Mr. Krueger did not appeal the judgment. [ 4 ] The trial judge found that Mr. Krueger was in custody during at least the period November 13 through November 20, 2011. He found that Mr. Krueger entrusted Ms. Morrey and Mr. Cole to look after his possessions while he was incarcerated and after he was required to vacate the suite. The trial judge found that, by and large, they failed to do so and that during the period November 13 to 16, 2011, a number of Mr. Krueger’s belongings were removed from the apartment by Ms. Morrey, Mr.

Cole and someone identified as Greg or Brad, a previous sub-tenant of Mr. Krueger’s. As these individuals were not parties to the litigation, he made no finding regarding any liability on their part. He concluded that Mr. Jaipaul was not liable for the goods taken or given away by Ms. Morrey, Mr. Cole or Greg/Brad. He found that Mr. Cole was not an employee of Mr. Jaipaul’s when he gave certain of Mr. Krueger’s belongings to his father-in-law. [ 5 ] The trial judge found there were a number of Mr.

Krueger’s goods left in the premises after November 17, 2011, included an armoire, beds, tables, chairs, a 13-inch TV, dresser, sideboard, artwork and other personal belongings (the “remaining goods”). [ 6 ] The trial judge determined that Mr. Jaipaul, as landlord, had an obligation to look after the remaining goods left in the premises and to comply with the Residential Tenancies Act , SA 2004, c R-17.1. He found that Mr. Jaipaul took no affirmative steps to satisfy his obligation to ensure the remaining items were properly inventoried and stored. Rather, Mr. Jaipaul instructed Mr.

Cole to get rid of the remaining goods. He found that Mr. Cole took that to mean to dispose of them, which he did by putting them in the trash after bagging certain items and taking a sledgehammer to others. He found that when Mr. Cole disposed of the remaining goods, he was being paid by Mr. Jaipaul to clean out and empty Mr. Krueger’s suite, was his agent, was authorized by Mr. Jaipaul to dispose of the goods as he saw fit, and was acting in the course and scope of his agency or employment.

The trial judge commented that a prudent landlord would have given his agent or employee instructions as to how to properly deal with the remaining goods or at least would have asked his agent or employee what he intended to do with the remaining goods. [ 7 ] The trial judge considered s 31 of the Residential Tenancies Act and treated the remaining goods as abandoned goods. He noted the landlord provided no evidence of having assessed the value of the remaining goods or of having reasonably satisfied himself they had a value of less than $2,000. He found that Mr.

Jaipaul failed to maintain and keep records of the storage, disposition or sale of the remaining goods. He found the breach of these statutory obligations by the landlord gave rise to a cause of action. [ 8 ] He also found that Mr. Jaipaul failed in his obligation to take reasonable care of the remaining goods. As a result, he concluded that Mr. Krueger was entitled to recover the value of those goods from Mr. Jaipaul. He awarded Mr. Krueger the actual cash value of the remaining goods rather than their replacement value. He concluded the actual cash value was $9,545.

[ 9 ] The trial judge granted Mr. Krueger judgment in the amount of $10,545, plus interest and costs. Mr. Jaipaul, who had counterclaimed, received judgment for $2,632 to be set off against the amount awarded to Mr. Krueger, leaving a net total judgment of $8,613.39 in favour of Mr. Krueger. [ 10 ] Mr. Jaipaul appeals only the decision as to his liability, not the valuation of the goods or the quantum of the judgment. [ 11 ] Mr. Jaipaul, representing himself, bases his appeal on the following grounds: 1.

Under s 21(1) of the Residential Tenancies Act , if the tenant’s whereabouts are known, his rental unit cannot be treated as abandoned. Mr. Krueger was in jail. His whereabouts were known and he had asked his friends to look after his belongings. The trial judge erred in treating his unit as “abandoned.” The statutory provisions relating to abandoned premises and goods had no application since Mr. Krueger’s unit was not “abandoned” and the remaining goods were not “abandoned goods.” 2. Under s 23(3), the landlord can enter, after proper notice, to take necessary steps to control pests. Mr.

Krueger had asked his friends, including Mr. Cole, to pack up and put his belongings in storage. They testified to packing up and removing goods on Mr. Krueger’s behalf before, during and after Mr. Jaipaul’s visit there on November 13, 2011 for pest control clean up. Mr. Cole was acting for Mr. Krueger. He was not acting on Mr. Jaipaul’s behalf and Mr. Jaipaul did not authorize him to dispose of Mr. Krueger’s remaining goods. 3. In accordance with s 29(1), Mr. Jaipaul could not remove Mr. Krueger’s remaining goods without a judge’s order. The order granted on November 15, 2011 took effect on November 17 th .

It was only after that when Mr. Jaipaul could legally start to inventory, store or auction the goods. By then, only a couch remained on the balcony. 4. Section 31(2) of the Residential Tenancies Act states that if a landlord believes the goods to be worth less than $2,000, they can be disposed of. Also, no one wants to store or handle unsafe or unsanitary goods. III. Standard of Review [ 12 ] The standard of review in civil appeals is set out in Housen v Nikolaisen , 2002 SCC 33 at paras 26-36 , [2002] 2 SCR 235. For pure questions of law, the standard is correctness.

For findings of fact, the standard is “palpable and overriding error.” For questions of mixed fact and law, appellate courts should defer to the trial judge unless the trial judge made some extricable error in principle, or a palpable and overriding error in interpreting the evidence. IV. Issues [ 13 ] The issues on this appeal are whether the learned trial judge erred in finding that Mr. Jaipaul failed to meet his statutory obligations as a landlord as he did not inventory, store or otherwise properly deal with the remaining goods, and in finding that Mr. Jaipaul was liable, as a matter of agency law, for Mr.

Cole’s actions in disposing of the remaining goods, so as to warrant the judgment for damages. V. Legislation [ 14 ] The relevant provisions of the Residential Tenancies Act are set out below: 19(1) A landlord and tenant shall inspect the residential premises within one week before or after a tenant takes possession of the residential premises, and the landlord shall, forthwith on completion of the inspection, provide the tenant with a report of the inspection that describes the condition of the premises.

(2) A landlord and tenant shall inspect the residential premises within one week before or after the tenant gives up possession of the residential premises and the landlord shall, forthwith on completion of the inspection, provide the tenant with a report of the inspection that describes the condition of the premises.

(3) A landlord may complete the inspection without the tenant if the landlord proposes 2 inspections to take place (

a) on different days, (

b) on days that are not holidays, and (

c) between 8 a.m. and 8 p.m., and no adult person who falls within the definition of tenant agrees to take part.

(4) For the purposes of subsection (3) the landlord may propose alternative inspection times, with the inspection to take place on the 2nd date and time if it does not proceed on the first date and time.

(5) A report must contain the prescribed statements and be signed in accordance with the regulations.

(6) A landlord shall (

a) keep a copy of an inspection report prepared under this

section for at least 3 years after the termination of the tenancy, and (

b) make the inspection report available for inspection by the Director or an authorized person for the purposes of an inspection or investigation under

Part 6. 23(1) Except as otherwise permitted in this section, no landlord shall enter residential premises rented by the landlord without the consent of the tenant or of an adult person lawfully on the premises.

(2) A landlord is entitled to enter residential premises rented by the landlord without consent or notice if the landlord has reasonable grounds to believe that (

a) an emergency requires the landlord to enter the premises, or (

b) the tenant has abandoned the premises.

(3) Subject to subsection (4), a landlord is entitled to enter residential premises rented by the landlord without consent but after notice to the tenant (

a) to inspect the state of repair of the premises, (

b) to make repairs to the premises, (

c) to take necessary steps to control pests in the premises to ensure that the premises meet standards in that regard that are required under any law in force in Alberta, (

d) for the purpose of showing the premises, whether directly or through a real estate broker, to prospective purchasers or mortgagees of the premises, or (

e) to show the premises to prospective tenants after a landlord or tenant has served notice of termination of a periodic tenancy or during the last month of a fixed term tenancy.

(4) A landlord is not entitled to enter residential premises under subsection (3) unless (

a) the notice is served on the tenant at least 24 hours before the time of entry, (

b) the entry is made on a day that is not (

i) a holiday, except that the landlord may enter on a Sunday if the tenant’s day of religious worship is not a Sunday and the tenant has provided the landlord with a written notice of that day, or (ii) the tenant’s day of religious worship if that day is not a Sunday and the tenant has provided the landlord with a written notice of that day, and (

c) the entry is between 8 a.m. and 8 p.m.

(5) A notice under subsection (3) must (

a) be in writing, (

b) be signed by the landlord or the landlord’s agent, (

c) state the reason for the entry, and (

d) name a date and time of entry that comply with subsection (4).

(6) The date and time of entry referred to in subsection (5)(

d) may be expressed as a period of time of reasonable duration, which must begin and end at specified times. 31(1) In this section, “abandoned goods” means goods left at residential premises by a tenant who has (

a) abandoned the premises, or (

b) vacated the premises and whose tenancy has expired or been terminated.

(2) A landlord who believes on reasonable grounds that abandoned goods have a total market value of less than the prescribed amount may dispose of the goods.

(3) Notwithstanding that abandoned goods have a value equal to or greater than the prescribed amount , a landlord who on reasonable grounds believes

(

a) that the storage of the goods would be unsanitary or unsafe or would rapidly result in total or substantial depreciation in their market value, or (

b) that the cost of removing, storing and selling the goods would exceed the proceeds of their sale, may sell the goods by a means and for a price that the landlord believes is reasonable.

(4) If subsections (2) and (3) do not apply, the landlord (

a) shall store or arrange for storage of the goods on behalf of the tenant until the expiration of the prescribed period after the date of their abandonment, and (

b) afterwards may dispose of the goods by public auction or, with the approval of a court, by private sale. [The prescribed amount is $2,000 and the prescribed period is 30 days, according to s 5 of Residential Tenancies Ministerial Regulation , Alta Reg 211/2004.]

(13) A landlord shall keep a record of the storage, disposition or sale of goods under this

section including (

a) a description of the goods, (

b) the period for which and the location at which they were stored, (

c) in a case where subsection (8) applies, the costs claimed by the landlord and the date on which the goods were returned to the tenant, (

d) where the goods are sold, the particulars of the sale, the amount claimed by the landlord under subsection (9) and the amount, if any, paid to the Minister under subsection (9), and (

e) where the goods are neither returned to the tenant nor sold, the manner in which they were disposed of.

(14) A landlord shall keep a record referred to in subsection (13) as it relates to particular goods for at least 3 years after the goods were returned to the tenant, sold or disposed of, as the case may be. VI. Analysis [ 15 ] Mr. Jaipaul’s grounds of appeal do not address the finding of the trial judge that he was liable for the losses suffered by Mr. Krueger as a result of Mr. Jaipaul removing the door of the premises in late October 2011 and leaving the suite unsecured for a couple of days.

While the trial judge appears to have made a mathematical error of $500 in adding up the value of the items taken during that period, Mr. Krueger did not appeal the judgment. [ 16 ] Both Mr. Krueger and Mr. Jaipaul accept that the court order of Judge Haymour required that Mr. Krueger vacate the premises by November 17, 2011. According to s 23(1) of the Residential Tenancies Act , the landlord was not permitted to enter Mr. Krueger’s premises without his consent and without giving notice while Mr.

Krueger was still entitled to possession of the premises, unless there was an emergency which required the landlord to enter the premises or Mr. Krueger had abandoned the suite. Mr. Jaipaul did not assert and the evidence did not disclose that there was any emergency on November 13 th , when he entered the premises. [ 17 ] Section 23(3)(

c) does allow a landlord to enter rental premises, after giving notice, to inspect the state of repair of the premises, to make repairs to the premises, and to take necessary steps to control pests in the premises. Mr. Jaipaul’s evidence was that his November 13 th visit to Mr. Krueger’s premises was for those purposes and that he did give notice of the visit by taping it on the door. Mr. Krueger, who was in custody at the time, denied receiving notice. The trial judge did not make a finding as to whether proper notice was provided by Mr. Jaipaul.

However, it was not necessary for him to do so given that entering the premises for pest control purposes would not have provided Mr. Jaipaul with statutory authority to dispose of Mr. Krueger’s remaining goods unless it was a step that was necessary for controlling the pests. There was evidence given at trial that the unit had or previously had had cockroaches and bedbugs. However, Mr. Jaipaul admitted only to trashing some rotten food, newspapers, flyers and other garbage. He denied instructing Mr. Cole to dispose of anything else in the premises.

One of the exhibits entered at trial, a notice from Poulin’s Pest Control, outlined steps to be taken in preparation for pest control treatment. No mention is made in that notice that disposal of furniture or other personal items is required. [ 18 ] The trial judge found that between November 13 th and 16 th , a number of people including Ms. Morrey, Mr. Cole and Greg/Brad, took various items from Mr. Krueger’s premises. He concluded that Mr. Jaipaul was not liable for those items. [ 19 ] The trial judge found there were a number of Mr.

Krueger’s belongings left in the premises after November 17, 2011, included an armoire, beds, tables, chairs, a 13-inch TV, dresser, sideboard, artwork and other personal belongings. There was evidence at trial that these goods remained in the premises after the friends had taken certain items out of the apartment (the “remaining goods”). However, Ms. Morrey and Mr. Jaipaul testified that the remaining goods were no longer there by November 15 th . All that was left was a couch, which was put on the balcony for a few days and then thrown out by Mr. Jaipaul.

There was no evidence the remaining goods were in the premises on or after November 17 th . I conclude the trial judge erred in that finding. In my view, however, this error did not affect his application of the law or the conclusions drawn by him. [ 20 ] The trial judge found that Mr. Jaipaul employed Mr. Cole during the period November 13 to the end of November 2011 to do

occasional work around the building, including cleaning out and removing items from the unit. He found that during that period, Mr. Cole was the agent or employee of Mr. Jaipaul. He found that Mr. Jaipaul instructed Mr. Cole to get rid of the remaining goods in Mr. Krueger’s unit and that Mr. Cole did so, truly believing he was authorized to dispose of the goods. [ 21 ] These findings of fact are supported by the evidence and no palpable and overriding error has been shown. [ 22 ] Mr. Jaipaul and his agent/employee had no authority to dispose of Mr.

Krueger’s remaining goods other than in accordance with the Residential Tenancies Act . [ 23 ] Section 31(2) provides that a landlord who believes on reasonable grounds that abandoned goods have a total market value of less than $2,000 may dispose of the goods. The trial judge found the remaining goods were “abandoned goods” within the meaning of the Act. There was some evidence to support that finding. Even if the trial judge was in error in concluding the premises were abandoned when the remaining goods were disposed of or destroyed, that error was not palpable and overriding in view of his finding that Mr.

Jaipaul failed to inventory the remaining goods and did not present evidence that he made an assessment of their value. The trial judge indicated he was not prepared to assume the goods had a value of under $2,000, given the landlord’s breach of his statutory obligations. [ 24 ] Also, the trial judge concluded that Mr. Jaipaul was liable for Mr. Cole’s actions through agency law and that he failed in his statutory obligations as a landlord when he told Mr. Cole to get rid of Mr. Krueger’s belongings, without giving him instructions on how the remaining goods should properly be dealt with under the Act.

Therefore, Mr. Krueger was entitled to recover damages from Mr. Jaipaul. This was a conclusion of mixed fact and law and, as such, is entitled to deference on review unless an extricable error of law or palpable and overriding error

interpretation of the evidence is demonstrated. In my view, there was evidence to support the trial judge’s factual findings, he made no palpable and overriding error in interpreting that evidence, and he made no extricable error of law. [ 25 ] In Krause v Bonin , 2011 ABPC 171 , the landlord gave the tenant a two week eviction notice on August 6, effective August 20. On August 12, the landlord removed the tenant’s property from the unit, disposed of some of the items and put the rest in storage.

Holmes J found (at paras 19-20) that s 31 of the Act did not provide any authorization to seize the tenant’s property because the tenancy had neither expired nor been properly terminated. With no statutory or common law authorization, the acts of impounding, refusing to return, selling and disposing of the tenant’s property was a breach of the lease and constituted the torts of detinue and conversion. [ 26 ] In this case, if s 31 of the Act does not apply because Mr. Krueger’s goods were not abandoned, Mr.

Jaipaul was still liable for conversion of the goods in question, having instructed his agent and employee Mr. Coles to dispose of those goods prior to the end of the tenancy when he was not entitled to do so. [ 27 ] In the result, I conclude that no reversible error has been shown in the decision of the trial judge. Rather, he patiently and carefully conducted this trial for these two self-represented litigants. In my view, the conclusion reached was correct, whether analyzed on the basis of s 31 of the Act, or on the basis of agency, detinue and conversion law. VII.

Conc l usion [ 28 ] The appeal is dismissed and the judgment of the learned trial judge is confirmed. Heard on the 6 th day of September, 2013. Dated at the City of Edmonton, Alberta this 31 st day of October, 2013. S.J. Greckol J.C.Q.B.A. Appearances: No one appeared

for the Plaintiff/Respondent Deo Jaipaul Self-represented Defendant/Appellant