Brown v. Giscome Contracting Ltd. Date:, 2016 BCPC 226

Citation: Brown v. Giscome Contracting Ltd. Date: 20160114 2016 BCPC 226 File No: 14-46039 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: NORMAN LEE BROWN dba GATEWAY RV WORKS CLAIMANT AND: GISCOME CONTRACTING LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Claimant: Mr. G. Whidden Counsel for the Defendant: Mr. J. Haines Place of Hearing: Prince George , B.C.

Date of Hearing: September 8 & 11, 2015 Date of Judgment: January 14, 2016 [ 1 ] This case raises the difficult issue of who should bear the loss resulting from seizure and sale of a chattel taken in execution on an apparently valid default judgment, when that judgment is subsequently set aside.

Background [ 2 ] On March 8 th , 2012 Giscome Contracting Ltd. (“Giscome”) obtained a default judgment (“the default judgment”) for about $5,700.00 against Norman Brown doing business as Gateway RV Works (“Mr. Brown”) when Mr. Brown failed to appear at a Pre-Trial Conference. In due course, Giscome took steps to execute upon the default judgment. It obtained an Order for Seizure and Sale ( Exhibit 1) from the Provincial Court and placed this with the court bailiff (North Central Bailiffs) for execution. It also placed a lien on Mr.

Brown’s +house. [ 3 ] On May 11 th , 2012 North Central Bailiffs seized a set of two, rolling, stackable Mac Tools tool boxes and the tools contained therein (“Mr. Brown’s tools”) which Mr. Brown had stored at the shop of his former employer in Prince George. The tools were advertised for sale in the newspaper and on the court bailiff’s web-site. [ 4 ] On June 28 th , 2012 Mr. Brown’s house sold and, because of its lien, Giscome received the full amount of the default judgment out of the sale proceeds.

Unfortunately, this information was not immediately passed along to the court bailiff and, a few days later, on July 5 th , 2012, believing the debt was still outstanding, North Central Bailiffs sold Mr. Brown’s tools for $1,500.00. Of this sum, nearly $1,000 went to pay the bailiff’s fees. The remaining $500.68 was remitted to Mr. Brown. [ 5 ] Mr. Brown filed an application in Provincial Court to set aside the default judgment, but this was dismissed. Subsequently, counsel acting for Mr. Brown brought an application in Supreme Court for judicial review.

That matter was argued in Supreme Court more than a year later, in October, 2013. On December 6 th , 2013 Justice Masuhara gave his decision. See Gateway RV Works v. Giscome Contracting Ltd., 2013 BCSC 2234 . He allowed Mr. Brown’s petition on the basis that, in the case of a Pre-Trial Conference (in contrast to a Settlement Conference), a Provincial Court judge does not have statutory authority to make default orders when a party fails to appear. In the result, Justice Masuhara set aside the two orders made on March 8 th , 2012 - the order dismissing Mr.

Brown’s claim, and the order granting Giscome default judgment on its counter-claim - and sent the matter back to Provincial Court for a trial on both actions. [ 6 ] The trial was held in the summer of 2014. I have not been provided with a transcript of the decision but, as I understand it, Mr. Brown was largely successful in making out his original claim against Giscome, whereas Giscome met with only limited success in proving its counterclaim. In the final result, Mr.

Brown obtained a judgment against Giscome for about $6,000.00. [ 7 ] The parties then turned their minds to the problem of how to fairly redress Mr. Brown for monies collected by Giscome back in 2012, in execution on the default judgement. As I understand it, they had no trouble agreeing that Giscome was obligated to repay Mr. Brown the sum of about $5,800, obtained by lien from the proceeds from the sale of his house. [ 8 ] Where the parties got stuck is on the issue of Mr. Brown’s tools. The current action is the result. Originally, Mr. Brown had claimed against both Giscome and North Central Bailiffs Ltd.

However, at Settlement Conference, he abandoned his claim against North Central Bailiffs and continued only against Giscome. [ 9 ] Mr. Brown’s position is that his tools were worth far more than the $500.68 he received from the court bailiff (the tools were sold for $1,500, less the bailiff’s fees of nearly $1,000, leaving $500.68 for Mr. Brown). He says they were worth $12,000 to $15,000. He says that Giscome committed the tort of trespass to property or conversion when it seized and sold his tools on the strength of a judgment that later proved to be invalid.

He says that Giscome should pay him damages in the range of $15,000 to compensate him for the fair market value of his tools. [ 10 ] Giscome’s position is that it is not liable in tort or on any other basis. It disputes both Mr. Brown’s entitlement to damages as well as the amount he claims. Regarding entitlement, Giscome emphasizes that when it obtained the Order for Seizure and Sale from the Provincial Court on May 1 st , 2012, it was acting as any creditor would, in innocent reliance on the apparently valid default judgment. It emphasizes, as well, that the decision to sell Mr.

Brown’s tools for $1,500 rather than holding out for some higher offer was made by the court bailiff, not by Giscome. Although the default judgment was subsequently set aside, Giscome argues that it cannot be held liable for any loss Mr. Brown sustained as a result of actions it took in execution on that judgment prior to the judgment being set aside. With respect to the amount of damages claimed by Mr. Brown, Giscome disputes the value he places on his tools. Even if Mr.

Brown establishes entitlement to damages, Giscome argues he has failed to establish that the fair market value of his tools was anything other than the $1,500 obtained by the court bailiff after 2 months of advertising.

Summary of Decision [ 11 ] I have decided that Mr. Brown has established that Giscome committed the tort of conversion in relation to Mr. Brown’s tools. I am persuaded by the reasoning set out in Salmond on the Law of Torts, 7 th ed., p. 627 as quoted in Demers v. Desrosiers (No. 2), 1929 CarswellAlta 74 (Alberta Supreme Court) which I set out in detail below. I find that the Order for Seizure and Sale obtained by Giscome on May 1 st , 2012 became void ab initio once Justice Masuhara gave his decision on December 6 th , 2013 setting aside the default judgment upon which the Order for Seizure and Sale was based.

At that point Giscome became liable to Mr. Brown for damages in tort, for having seized and sold Mr. Brown’s tools even though, at the time of the seizure and sale, Giscome was acting in innocent reliance on an apparently valid court order. As Salmond points out, this is an application of “the fundamental principle that mistake, however honest…is no defence to him who intentionally interferes with the … property of another.” [ 12 ] As for damages, I have concluded that Mr.

Brown has established a value of $5,000 for his tools but, due to a failure to mitigate I am prepared to award damages for only ½ that amount, or $2,500. Mr. Brown has already received $500.68 from the court bailiff, so the amount still owing by Giscome in damages is $1,999.32. [ 13 ] Of course, Giscome must also return to Mr. Brown the monies obtained by placing a lien on Mr. Brown’s house which I understand to be $5,868.65.

[14] Pre-judgment interest totalling $275.48 is payable by Giscome to Mr. Brown on these sums. My pre-judgment interestcalculation is attached as Appendix A. [15] The result is a total judgment payable by Giscome to Mr. Brown in the sum of $8,143.45. Pursuant to Rule 11(15) I order thatGiscome pay this sum in full not later than 30 days from the date my decision is filed. Post-judgment interest will begin to accrue on anyamount outstanding after that time. [16] I will now set out my detailed reasons beginning with a list of the issues. Issues 1.

What is the effect of Justice Masuhara’s decision setting aside the default judgment on the Order for Seizure and Sale (Exhibit 1)obtained by Giscome? 2. Did Giscome commit the torts of either trespass to property or conversion in relation to Mr. Brown’s tools? 3. Is Mr. Brown’s action in tort barred by the Limitation Act, S.B.C. 2012, c. 13? 4. What damages have been proven? 5. Return of the lien proceeds. 6. What pre-judgment interest is payable? Analysis 1.

What is the effect of Justice Masuhara’s decision setting aside the default judgment on the Order for Seizure and Sale (Exhibit 1)obtained by Giscome? [17] Counsel have cited a number of cases on this and the other issues. I have attached a list of those cases as Appendix B. [18] As I said earlier, I have concluded that the effect of Justice Masuhara’s decision setting aside the default judgment is to rendervoid ab initio all legal process issued on the basis of the default judgment.

Therefore, I find that the Order for Seizure and Sale obtained by Giscome on May 1st, 2012 was rendered void ab initio. [19] My conclusion is based on the decision in Demers v.

Desrosiers, 1929 CarswellAlta 74 (Alberta Supreme Court) and the quote from Salmond on the law of Torts, 7th ed, found at paragraph 10 of that decision: If any litigant executes any form of legal process which is invalid for want of jurisdiction, irregularity or for any other reason, and in sodoing commits any act in the nature of a trespass to person or property, he is liable therefore in an action of trespass, and it is notnecessary to prove any malice or want of reasonable or probable cause.

This is an application of the fundamental principle that mistake,however honest or inevitable, is no defence for him who intentionally interferes with the person or property of another. A supposedjustification is no justification at all.

A litigant who effects an arrest or seizes property must justify the trespass by pleading a validexecution of legal process, and any irregularity or error which has the effect of making the process invalid will deprive him of alljustification… When it is sought to hold a litigant thus liable for the execution of invalid process, a distinction is to be drawn betweenprocess which is wholly void and process which is merely voidable. Process which is void is no defence at all, and an action will liewithout taking any steps to set it aside.

But when process is merely voidable, it is sufficient justification until it has been set aside;though when it has been set aside it becomes void ab initio, and an action will thereupon lie for acts done in pursuance of it. The processwhen set aside is as if it never existed, and…the party therefore cannot justify under it. [emphasis added] [20] See also the quote from the old case of Wilson v. Tumman (1843) 134 E.R. 879 found in Ballantyne v. McCulloch and Companyand Sims, 1927 CarswellBC 66, (Co. Ct.) at para. 3. [21] Counsel for Giscome urges the court not to apply this principle in the case at bar.

He says that to find the Order for Seizure andSale void ab initio would produce an unfair result because, back in 2012, neither Giscome, nor anyone else, had any reason to doubt thevalidity of the default judgment. Giscome waited nearly 2 months before taking steps to execute upon that judgment, so it cannot beaccused of acting precipitately. During that time neither Mr. Brown nor his counsel filed an application to set aside the defaultjudgment.

Nor did they take the simple step of picking up the phone and saying to Giscome or its counsel “please don’t execute on thedefault judgment; we plan to apply to have it set it aside”. Giscome had no intention of committing a tort in relation to Mr. Brown’stools; nor was it negligent. Rather, it acted in innocent reliance on the orders issued by the Provincial Court. To now hold Giscomeretro-actively liable in damages for acting on those orders would be extremely unfair.

It would also send a chilling message to allcreditors to be extremely cautious before acting on the orders they obtain from the court, lest they later be found liable in damages fordoing so. [22] Counsel for Giscome cites Derrickson v. Tomat, (BCCA) in support of his position. The facts are somewhatsimilar. At trial the plaintiffs obtained a judgment in damages against the defendants. The plaintiffs took steps to execute upon theirjudgment through garnishment and other collection proceedings and collected over $100,000 from the defendants. Meanwhile, thedefendants brought an appeal of the trial decision.

Defendants appeal was successful and a new trial was ordered. Defendants thensought to have the Court of Appeal order the return of the monies collected from them by the plaintiffs pursuant to the originaljudgment. [23] Counsel for Giscome points out that the Court of Appeal does not describe the execution proceedings taken by the plaintiffs inthat case as “void ab initio”.

On the contrary, the court implicitly recognizes the validity of the garnishing orders and orders for seizureand sale obtained by the plaintiffs, and focuses only on reimbursing the defendants for monies collected by the plaintiffs pursuant to such

orders. Applying this to the case at bar, counsel argues that this court should not find that the Order for Seizure and Sale was “void ab initio” . Instead, the court should find that such order continued to be valid even after the default judgment was set aside, and that it continues, to this day, to provide a legal justification for the seizure and sale of Mr. Brown’s tools for whatever the court bailiff could get for them. No tort should be found. No damages should be awarded. The court should focus instead on recompensing Mr. Brown for any monies collected by Giscome pursuant to the default judgment.

This would consist of the sum of $5,868.65 obtained from the sale proceeds from Mr. Brown’s house. It would not include anything for Mr. Brown’s tools as Giscome realized no cash value from the sale of the tools, the $500.68 left over after the bailiff’s fee was paid having been remitted directly to Mr. Brown by North Central Bailiffs. [ 24 ] In my view, Derrickson v. Tomat does not address the issue that is before me. There was no claim before the court in that case for damages in tort for trespass to property, or conversion.

Accordingly, the court was not being asked to determine whether the execution proceedings provided ongoing legal justification for such trespass or whether they were, in fact, void ab initio as a result of the successful appeal. Given that these issues were not before the Court of Appeal, I conclude that I cannot take anything from the fact that the court does not use the term “void ab initio” when referring to the execution proceedings taken on the trial judgment in that case. [ 25 ] As identified in the quote from Salmond on the law of Torts , above, the fundamental legal problem here is one of mistake.

Giscome acted on an Order for Seizure and Sale which, through no fault of its own, turned out to be invalid. Since Giscome’s mistake was entirely innocent and honest, it seems unfair to find Giscome liable in tort as a result of that mistake. However, neither is it a satisfactory result for a property owner - Mr. Brown in this case - to have his property interfered with without legal justification. [ 26 ] The legal relationship of the parties cannot be defined by what turned out to be a mistake. If it is correct - and clearly it is - that Giscome must return the money it collected from the lien on Mr.

Brown’s house, then it must also be correct that Giscome must return Mr. Brown’s tools. Unfortunately, Giscome cannot do that as the tools have been sold, so the analysis must turn to the issue of damages payable by Giscome to compensate Mr. Brown for the fair market value of his tools. [ 27 ] I agree with counsel for Giscome that the principle set out in Salmond does mean that creditors will always wish to act with caution before seizing and selling a debtor’s chattel.

Chattels can be difficult to seize, difficult to store and, as we see in this case, they can be difficult to value and difficult to market fairly. Seizure of a cash asset, such as the monies obtained by Giscome from Mr. Brown’s house proceeds, would appear to give rise to fewer problems for both the creditor and the debtor should the judgment under which the seizure took place be subsequently set aside. [ 28 ] In any case, I do find that the principle set out in the quote from Salmond , above, applies in the case at bar. See also Gibb v. Nigeria, 2003 ABQB 604 , at paras. 2 , 22 and 35.

Therefore, the effect of Justice Masuhara’s decision on December 6 th , 2013, setting aside the default judgment of March 8 th , 2012, was to render the Order for Seizure and Sale, obtained by Giscome on May 1 st , 2012, void ab initio. 2. Did Giscome commit the torts of either trespass to property or conversion in relation to Mr. Brown’s tools? (

a) Was the court bailiff acting as Giscome’s agent? [ 29 ] Giscome argues that it cannot be held liable for any tortious conduct in connection with the seizure and sale of Mr. Brown’s tools because it was the court bailiff, rather than Giscome, that carried out the seizure and sale. Giscome argues that it is clear, in law, that a court bailiff is not the agent of the judgment creditor. [ 30 ] Giscome points to the evidence of Mark Whyte who testified that, as a court bailiff, appointed under s. 3 of the Sheriff Act, R.S.B.C. 1996, c. 425, he does not take instructions from the creditor.

He may receive information from the creditor about assets owned by the debtor (and he did so in this case) but it is his decision, not the creditor’s decision, as to what chattels he will seize and what price he will sell them for. Put another way, he takes his orders from the court, as expressed in the Order for Seizure and Sale, not from the judgment creditor. As well, Giscome points out that a court bailiff has a duty to both the creditor and the debtor when acting on a writ of execution.

He has a duty to the debtor to handle any chattel seized with reasonable care and he has a duty to both the creditor and the debtor to conduct the sale of the chattel in a way most likely to obtain a reasonable price and he must account to both for how the monies realized on the sale are distributed. See Chapman v. Summer et al and Expert Bailiffs, 2009 BCSC 1591 , at paras. 34 to 54 . At root, counsel for Giscome argues, a court bailiff is an officer of the court and not the agent of either party. See s. 6 of the Sheriff Act and Elite Bailiffs Services Ltd. v.

British Columbia, 2003 BCCA 102 , at para. 4 . [ 31 ] I agree that North Central Bailiffs was not the agent of Giscome as long as the legal process - the Order for Seizure and Sale - remained valid. However, once that legal process was rendered void ab initio , the court bailiff lost its statutory authority to interfere with the property of Mr. Brown. At that point, the court bailiff simply became the servant or agent of, Giscome. See Ballantyne v.

McCulloch & Co. and Sims, 1927 CarswellBC 66 , at para 3 . [ 32 ] I therefore conclude that Giscome is liable for any tort committed by the court bailiff in relation to Mr. Brown’s tools. (

b) The nature of the tort committed [ 33 ] Scott v. Filipovic, 2014 BCSC 939 , at para. 63 contains the following useful discussion of the tort of conversion of property and the assessment of damages: The tort of conversion involves the wrongful interference with another person’s chattels, such as taking, using or destroying the goods in a way that is inconsistent with the owner’s ownership of, or title to the goods… The elements that must be proven to establish the tort of conversion are: (

a) a wrongful act by the defendant involving the goods of the plaintiff; (

b) the act must consist of handling, disposing of, or destroying the goods, and

(

c) the defendant’s actions must have either the effect or the intention of interfering with (or denying) the plaintiff’s right or title to the goods. …Conversion will result in a “forced sale” which allows the plaintiff to recover the market value of the chattel at the time of conversion.

In addition to receiving the value of the converted chattel, where the chattel is a profit-earning chattel, the plaintiff may be entitled to additional damages for the loss of use of the chattel limited to the amount of time reasonably required to find a replacement…. [ 34 ] I find that Giscome committed the tort of conversion in relation to Mr. Brown’s tools by arranging for their seizure and sale pursuant to legal process which proved to be void ab initio. The basic measure of damages is the market value of the tools at the time of conversion. Replacement value is not the appropriate measure as Mr.

Brown had not, as of the date of trial in early September, 2015, replaced his tools. See Chan v. Farrell Estates and Accurate Bailiffs, 2001 BCCA 92 , at paras. 30 and 31 . 3. Is Mr. Brown’s action in tort barred by the Limitation Act, S.B.C. 2012, c. 13 ? [ 35 ] Giscome argues that Mr. Brown’s action in tort is barred by the Limitation Act, S.B.C. 2012, c. 13, s. 6 because the claim in the current action was filed more than 2 years after the tools were seized and sold. [ 36 ] This argument cannot succeed.

Pursuant to the general discovery rule set out in s. 8 of the Act , the limitations clock starts running “…on the first day on which the person knew or ought to have known … (

a) that loss had occurred…, [and] (

c) that the act … was that of the person against whom the claim is made”. The first day Mr. Brown could have known that the loss in value he had incurred from the seizure and sale of his tools was due to a tortious action on the part of Giscome, rather than to execution on a valid default judgment, was on December 6 th , 2013 when Justice Masuhara gave his decision setting aside the default judgment. That is the day the limitations clock started to run. It would have expired on December 5 th , 2015 but Mr. Brown had filed his current claim more than a year before that, on November 12 th , 2014. 4. What damages have been proven? (

a) Fair market value [ 37 ] The evidence about the value of Mr. Brown’s tools is quite varied. There is uncertainty both about what Mr. Brown’s tools exactly consisted of, and their value. [ 38 ] Mr. Brown testified that he had quite a complete set of high quality tools which he had acquired over the years in his work as a mechanic specializing in the repair and maintenance of recreational vehicles. He said he acquired most of his tools between the years 2002 and 2004, which would mean they were between 8 to 10 years old at the time of their seizure on May 11 th , 2012.

He said his tools were mostly Snap On and Mac brand tools which are much better quality and more expensive than the brands sold, for example, at Canadian Tire. He said that the tool boxes were also high end, purchased from Mac Tools for about $8,000. He estimated that he spent “the better part of 20 grand” on his tools and tool boxes when he bought them. In preparation for this case, he spoke on the phone with the Mac Tools salesman, listing everything he’d had and obtaining a quote to replace each item. He said the total came in at between $12,000 and $15,000.00. [ 39 ] Mr.

Brown also provided print outs from the web sites Kijiji and Craigslist containing ads for tool boxes and tool collections which he said were similar to his. The asking prices range from about $8,000 to $12,000. See Exhibits 4 & 5. As Mr. Brown acknowledged on cross examination, these print outs show only the asking price, not what the item actually sold for. [ 40 ] Mr. Brown testified that he had last seen his tools the year before they were seized, in about May of 2011. At that time he moved to Watson Lake, Yukon and left his tools at the shop of his former employer, NR Motors.

He said that the tool boxes were locked when he left them. [ 41 ] Mr. Brown produced no written inventory of his tools. On cross-examination he acknowledged that he could not provide receipts or other independent proof of what tools he had purchased over the years. He said that most of his receipts had been stored in the tool boxes that were seized and sold and this was the reason he could not produce them. [ 42 ] Mr.

Brown’s evidence about his tool inventory and its value was supported by that of his brother, Terry Brown, and by that of a former co-worker, Guy Reid. [ 43 ] All three men testified that the fair market value of Mr. Brown’s tools was in excess of $10,000.00 - a very great deal more than the $1,500 they were sold for by the court bailiff. [ 44 ] The court bailiff, Mark Whyte, gave rather different evidence about the contents and condition of Mr.

Brown’s tool collection and about the estimated value of the tools and tool boxes as of the date of seizure. [ 45 ] When he located the tools at NR Motors shop on May 11 th , 2012, he noted that the tool boxes were unlocked. This, of course, is in contrast to Mr. Brown’s evidence that when he left his tools the year before, the boxes were locked. [ 46 ] Mr. Whyte said he had no specific recollection of what tools were in Mr. Brown’s collection. He took a picture of the exterior of the tool boxes (see p. 35 of Exhibit 3) but took no written or photographic inventory of the tools contained therein.

His recollection was that the tools appeared to be “older, well used tools… A selection of wrenches and sockets, some wiring, an impact wrench. A broad variety of tools. I don’t recollect exactly what they all were.” His assessment was based on some experience as he had been a front-end mechanic for 8 years in the past “and I have a pretty good idea of what tools are.” [ 47 ] In the log entry for 2012-05-11 found at p. 25 of Exhibit 3 either Mr. Whyte or his colleague recorded the following brief remark about Mr. Brown’s tools: “Ok tool box, old tools.”

[ 48 ] Mr. Whyte testified that after the tools were seized they were advertised on North Central Bailiffs website and in the local paper under the heading “Court Bailiff Sale”. See p. 15 of Exhibit 3. He said that their website receives “thousands of hits” - and he also said that many individuals, plus agencies like the Canada Revenue Agency follow court bailiff’s ads in the newspaper and on-line. [ 49 ] Between the date of seizure, May 11 th , 2012, and the date of sale, July 5 th , 2012, North Central Bailiffs received two offers for Mr. Brown’s tools. The first was for $500, the second, for $1,500.00. Mr.

Whyte decided to accept this latter offer because, by then, the tools had been exposed to the market for 2 months, the increase of $1,000 between the first and second offer was, in his mind, “a significant display of interest by the market”, no higher offers had been received, and he felt it important to “Sell now before incurring further costs.” See log entry for 2012-07-04 at p. 26 of Exhibit 3. [ 50 ] Mr. Whyte was asked whether he had any reservations about selling Mr. Brown’s tools at the price of $1,500. He answered as follows: Not really no. Several people came in to look at the tools.

They were not interested in the tools, it was the box they were bidding on. That is what was indicated to me. [ 51 ] There are two other pieces of evidence that I think worthy of mention on the issue of the fair market value of Mr. Brown’s tools. [ 52 ] The first is Mr. Brown’s brief comment on cross-examination that the person who bought his tools from the court bailiff, one Shawn Wilson (W8 Transport Ltd.), was either a current or former employee of the defendant, Giscome, and that Wilson had some previous knowledge of Mr. Brown’s tools. When questioned further, Mr.

Brown agreed that he had not asked his lawyer to look into this and, indeed, there was no other evidence on the point. If Mr. Brown was suggesting that Wilson’s successful bid of $1,500 was somehow improper, or the product of collusion, I cannot find that this has been established on the evidence. [ 53 ] The second piece, or body, of evidence that I wish to mention concerns Mr. Brown’s failure to buy back his tools immediately upon receiving the sale proceeds from his house on June 28 th , 2012. Mr.

Brown has testified, and I accept, that prior to the sale of his house, he did not have the nearly $6,700 (default judgment of $5,700 plus bailiff’s fees of nearly $1,000) necessary to pay out the court bailiff and retrieve his tools. However, once the sale of his house went through on June 28 th he had cash in hand of more than $87,000.00. See CIBC Account Statements marked Exhibit 6. At that point he had the money to retrieve his tools, but he failed to do so.

He chose, instead, to pay out a loan on a river boat he was buying, and to buy property and a used mobile home in order to make a more permanent home for himself and his family in Watson Lake, Yukon. [ 54 ] I am not faulting Mr. Brown for the priorities he set or the choices he made about how best to use his money. But, I do think his failure to immediately contact the court bailiff once he knew his house sale was going through, inquire whether his tools were still available, and then pay what was required to retrieve them just as soon as he had the money to do so, is some evidence that, in Mr.

Brown’s mind at the time, the tools were not worth the $6,700 or so that the court bailiff was demanding. [ 55 ] I have set out the evidence that I think touches on the fair market value of Mr. Brown’s tools. I will now set out my conclusions based on that evidence. [ 56 ] I find that, for several reasons, Mr. Brown has failed to establish that the fair market value of his tools is vastly in excess of the $1,500 obtained by the court bailiff. (I reiterate that I use the term “tools” to include both the tool boxes and the tools contained within the boxes at the time of seizure.) First, Mr.

Brown had not seen his tools for close to a year and when the court bailiff located them, one or both of the tool boxes was unlocked rather than locked as Mr. Brown had left them. These facts raise a serious doubt about how many of Mr. Brown’s tools were actually still in the boxes at the time of seizure. Mr. Brown insisted on cross examination that technicians do not steal each other’s tools, but it seems to me that other technicians may have borrowed some of Mr. Brown’s tools. I note that Guy Reid spoke of borrowing tools when he testified. In any case, the fact that Mr.

Brown’s tool boxes were found partially opened undermines the strength of his evidence about the contents of his tool collection as of the date of seizure. [ 57 ] Second, Mr. Whyte did have some experience with tools and his assessment on the day of seizure was “Ok tool box, old tools.” In his mind, the principal value lay in the high end Mac brand tool boxes more so than in the tools. Both Mr. Brown and Guy Reid testified that Mr.

Brown had purchased the tool boxes, new, for about $8,000 some years earlier, perhaps as long as 8 to 10 years earlier. [ 58 ] Third, after being listed for sale by the court bailiff for two months the highest offer received was $1,500.00. Counsel for Giscome argues that this is definitive evidence of the fair market value of the tools.

I agree that it is some evidence of market value, but I cannot conclude that it is definitive. [ 59 ] In my view - and I venture here somewhat into the realm of judicial notice - in a court bailiff’s sale, the seller (the court bailiff) will generally bring less passion and determination to the process than in a regular sale where the seller owns the chattel. The court bailiff’s duty, in law, is to “…conduct the sale in a manner most likely to obtain a reasonable price…” for the seized chattel. Chapman v. Summer , 2009 BCSC 1591 at paras. 38 and 39 . But, as an example, the price Mr.

Brown paid to purchase his tools was likely of little or no concern to the court bailiff when he decided to accept the bid for $1,500 whereas it would have been a matter of passionate concern had Mr. Brown been the one selling his tools. It may have caused him to list his tools for longer before accepting an offer, or to market them in a different location, or in a different way. In my view, it is correct to say, as a general proposition, that there is a tendency for chattels to be sold for less in a distressed sale such as a court bailiff’s sale, than in a regular sale by owner.

Because of this I find that the price of $1,500 obtained by the court bailiff was somewhat less than the fair market value of Mr. Brown’s tools. [ 60 ] I should add that this finding does mean that the court bailiff made an improvident sale. In my view, there was likely a range of values that might be considered a “….reasonable price….” for Mr. Brown’s tools. The fact that I have concluded that the figure accepted by the court bailiff was at the low end of that range does not render this an improvident sale. [ 61 ] Fourth, as noted, I conclude that Mr.

Brown’s failure to buy back his tools as soon as he had the money to do so is some

evidence that in his mind, at the time, they were not worth the $6,700 or so the court bailiff was demanding. [62] Fifth, I do find that Mr. Brown’s overall credibility was shaken somewhat by his failure to make disclosure earlier of his CIBC bank account. These records were important because they showed that as of June 28th, 2012, when he received some $87,000 from thesale of his house, Mr. Brown did have the money to retrieve his tools from the court bailiff but choose to use the money for other things. Mr.

Brown explained his failure to disclose by saying he thought the sale proceeds had gone into a different account, but admitted thatanother reason was because “…I knew you guys would try to use it against me…” It appears from this that Mr. Brown is willing toobscure or downplay facts that do not assist him and this does somewhat undermine his credibility on other issues, such as the contentsand value of his tool collection. [63] In the final analysis I have decided to assign to Mr. Brown’s tools the value of $5,000.00. In doing so I am guided by thefollowing comment in Martin v.

Goldfarb et. al, (ON CA), 1998 OJ 3403 (ONCA): …I have concluded that it is a well-established principle that where damages in a particular case are by their inherent nature difficult toassess, the court must do the best it can in the circumstances. This is not to say, however, that a litigant is relieved of his or her duty toprove the facts upon which the damages are estimated.

The distinction drawn in the various authorities, as I see it, is that where theassessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantialdamages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages,the litigant is entitled to nominal damages at best. [64] It is difficult to assess damages in this case, but it is not impossible to do so. The figure of $5,000 is, certainly, a “guesstimate”,but one that is anchored in the evidence. According to Mr.

Whyte the principal value was in the tool boxes rather than the tools. Thetool boxes cost Mr. Brown about $8,000, new. He purchased them some years previously - perhaps as many as 8 to 10 years previously. I find that they would have depreciated significantly below their purchase price during the intervening years of use and storage. There isthe fact that Mr. Brown chose not to retrieve his tools for the cost of about $6,700 which, as I have said, is some indication that hevalued them at less than that, at the time. At the low end, there is the bid from Mr.

Wilson of $1,500 received and accepted in thecircumstances of a court bailiff’s sale. Bearing these things in mind, the value of $5,000 is a reasonable estimate of the market value ofMr. Brown’s tools as of the date of seizure. (

b) The Seiko watch [65] Mr. Brown claims the additional sum of $349.99 for a Seiko watch which he says he had stored in one of the drawers of one ofhis tool boxes. [66] Mr. Whyte testified that he did not see a watch in the tool boxes when he seized them. As discussed, the tool boxes wereunlocked at the time of seizure, even though Mr. Brown left them locked. [67] On this evidence I cannot find that it has been proven that there was a Seiko watch in the tool boxes at the time of seizure andtherefore I dismiss this aspect of the claim. (

c) The claim for loss of income from use of tools [68] Mr. Brown claims for loss of income as a result of the seizure and sale of his tools. He testified that he had been out of work forabout 6 months when a job came up at a recreational vehicle dealership in Grande Prairie, Alberta. He said they were offering $40/hourbut, because he no longer had his tools, he could not take the job. On cross examination he agreed that he didn’t really want the jobbecause, for personal reasons, he didn’t want to leave Watson Lake and move to Grande Prairie. [69] Other relevant evidence on this point includes the fact that Mr.

Brown’s tools had sat, unused by him, at least, for close to a yearat the time they were seized. As well, in the 3½ years between the seizure in May, 2012 and this trial in September, 2015, Mr. Brownhad not replaced his tools. [70] On this body of evidence I cannot find that Mr. Brown has proven that it is more probable than not that he suffered a loss ofincome as a result of the seizure of his tools. What the evidence indicates is that Mr. Brown, by and large, moved on to a different phaseof his life when he moved to Watson Lake in 2011.

Although he could have pursued his career as recreational vehicle technician hechose to do other work, in part, because he made the sensible choice that it was more important to maintain his home and hisrelationships in Watson Lake than to chase seasonal employment in the recreational vehicle trade in various parts of western Canada. (

d) The court bailiff’s fee [71] Given that the default judgment was paid in full on June 28th, 2012 from the sale proceeds of Mr. Brown’s house, the courtbailiff’s fee ought to have been paid by Giscome, the party who initiated the collection process, rather than by Mr. Brown. See AbsoluteBailiffs Inc. v. Wangensteen, 1998 CarswellBC 3865 (BCSC), at para. 28. See also s. 9 of the Sheriff Act, R.S.B.C. 1996, c. 425. I haveeffectively credited this amount ($999.32) back to Mr. Brown by finding that he has, to date, received only $500.68 from the sale of histools, rather than the full $1,500.00 for which they were actually sold. (

e) The duty to mitigate [72] In Dorico Investments Ltd. v. Weyerhauser Canada Ltd., 1999 ABQB 561, at para. 45, the court said the following about theduty to mitigate that rests on a claimant in damages: There is a responsibility on a party who has been injured by a breach to take all reasonable steps to avoid losses flowing from the breach… a plaintiff is not entitled to recover for losses which could have been avoided by taking reasonable action … as the defendant is thewrongdoer the standard of reasonableness on the plaintiff is not high.

Thus the plaintiff has no obligation to take any steps which areasonable and prudent man would not ordinarily take in the course of his business… [emphasis added]

[ 73 ] Giscome argues that Mr. Brown failed to take reasonable steps to avoid losses flowing from the seizure and sale of his tools. The evidence supports Giscome on this point. [ 74 ] The principal way in which Mr. Brown failed to mitigate his damages - to avoid or minimize losses flowing from the seizure of his tools - was by choosing not to pay out the court bailiff and retrieve his tools when he received the proceeds from the sale of his house on June 28 th , 2012. [ 75 ] He did not even pick up the phone and tell the court bailiff “I now have the money for my tools”. Had Mr.

Whyte received this information he may well have delayed selling Mr. Brown’s tools. [ 76 ] Mr. Brown also missed several earlier opportunities to head off the sale of his tools. [ 77 ] He could have claimed a personal exemption for “tools of your trade” pursuant to s. 71(1) (

d) of the Court Order Enforcement Act, R.S.B.C. 1996, c. 78. There was conflicting evidence about whether Mr. Brown actually received the Personal Exemption Claim Form and information sheet from the court bailiff. I find that it is more probable than not that Mr. Whyte followed his standard practice and faxed the forms to Mr. Brown. Mr. Brown has no recollection of receiving them. Having considered Mr.

Brown’s evidence in cross examination on this point, I find that it is more probable than not that he did receive them but, focused as he was on the fact that he could not currently afford the sum of money required to get his tools back, he failed to carefully review, understand, complete and return the exemption claim form to the court bailiff. [ 78 ] He could have immediately filed an application to set aside the default judgment when he learned of the seizure of his tools, but did not do so.

I appreciate that he was relying on his lawyer to handle everything, but, unfortunately, it took him several months to put together a retainer for the lawyer and, by then, it was too late.

The tools had been sold. [1] [ 79 ] He could have picked up the phone and called Giscome or Giscome’s counsel and said “please don’t sell my tools; I plan to apply to set aside the default judgment just as soon as I can hire a lawyer.” This would have been enough for Giscome to know that it should hold off on any further execution proceedings. [ 80 ] He must have had some days or weeks warning that the sale of his house would complete on June 28 th , 2012 and he could have picked up the phone and advised the court bailiff as well as Giscome or Giscome’s counsel of this.

Had he told them that he would soon have the funds necessary to pay out the default judgment and retrieve his tools this would have been enough for Giscome to know that it should hold off on further execution proceedings. [ 81 ] It was clear from Mr. Brown’s evidence that he found the court process and the execution proceedings very confusing. As well, by that time, he was living and working far away from Prince George. This geographical separation likely contributed to his sense of detachment.

Although he realizes his error now and regrets it, unfortunately, at the time, he seems to have adopted a “hands off” approach. He thought to himself that he did not need to take any further steps and somehow or other it would all get sorted out once he had his “day in court”. In the result he missed several opportunities to halt the process and get his tools back, in other words, he missed several opportunities to mitigate his loss. [ 82 ] What is the effect of this failure to mitigate on the award of damages in this case? Giscome cites the comment in Dorico Investments Ltd. v.

Weyerhauser Canada Ltd. , above, at para. 45 : A plaintiff is not entitled to recover for losses which could have been avoided by taking reasonable action [in mitigation]… [ 83 ] Giscome argues that Mr. Brown could have got his tool boxes back at a cost of, at most, the bailiff’s fee, and that damages should be nominal in this case. [ 84 ] I do agree that because Mr. Brown failed to mitigate his loss, it would be an error in law to award damages in the full value of $5,000 which I have assigned to his tools (for the reasons set out in

section 4(a), above). However, I cannot agree that damages should be nominal. Mr. Brown had a significant asset taken from him. It turns out this was done without legal justification. He should have done more to help himself. But, he was far away and very confused by the process. Others could have done more as well, such as the then counsel for Giscome, who also failed to immediately notify the court bailiff that it was no longer necessary to sell Mr.

Brown’s tools because the default judgment had been recovered in full from the sale proceeds of the house. [ 85 ] I have decided that a reasonably fair result in this case would be best achieved by awarding damages in the amount of $2,500, or ½ the value I have assigned to Mr. Brown’s lost tools. [ 86 ] Mr. Brown has already received the sum of $500.68 from the court bailiff. See copy of cancelled cheque at p. 32 of Exhibit 3. See also my discussion of the court bailiff’s fee at paragraph 71, above. Giscome must therefore pay $1,999.32 ($2,500 - $500.68 = $1,999.32) to Mr.

Brown in damages for committing the tort of conversion in relation to Mr. Brown’s tools. 5. Return of the lien proceeds [ 87 ] Mr. Brown also claims for the return of $5,868.65 collected by Giscome on June 28 th , 2012 from the sale proceeds of his house. Giscome has always agreed that this money needs to be returned. I will use the figure in the Notice of Claim although it is $140.69 more than the amount of the default judgment of $5,727.96 [2] .

I assume the additional sum is for fees which, it would seem to me, are properly payable by Giscome as the lien, like the Order for Seizure and Sale, became void ab initio once Justice Masuhara set aside the default judgment. Counsel did not have the opportunity to address these details when we were last in court as we ran short of time. If counsel take the position that the amount claimed under this heading is some figure other than $5,868.65, then I would invite counsel to file brief written submissions on the point not later than January 30 th . 6. What pre-judgment interest is payable?

[ 88 ] Pre-judgment interest is payable “…from the date on which the cause of action arose to the date of the order.” See s. 1(1) of the Court Order Interest Act, R.S.B.C. 1996, c. 79. Mr. Brown’s cause of action for damages for the conversion of his tools arose on May 11 th , 2012 when his tools were seized. (This is in distinction to when the cause of action was discovered which was on the date of Justice Masuhara’s decision on December 6 th , 2013.) I calculate pre-judgment interest of $71.96 on the damages for lost tools. See Appendix A. [ 89 ] In the case of the lien proceeds, Mr.

Brown’s cause of action arose on June 28 th , 2012, the date the monies were deducted from Mr. Brown’s house proceeds. I calculate pre-judgment interest of $203.52 on the lien proceeds. See Appendix A. [ 90 ] The start date for pre-judgment interest was another issue that counsel ran out of time to address in any detail when we were last in court. Again, I would invite counsel to file brief submissions on the point not later than January 30 th if they take the position that I am in error in the start dates I have used in calculating pre-judgment interest.

Conclusion [ 91 ] Subject to counsel’s further submissions on items 5 and 6, above, I grant judgment to Mr. Brown in the total amount of $8,027.55, calculated as follows: Damages for loss of tools: $ 1,999.32 Return of lien proceeds: 5,868.65 Sub-total $ 7,867.97 Plus pre-judgment interest on damages for tools: $ 71.96 on lien proceeds: $ 203.52 Total: $ 8,143.45 [ 92 ] Pursuant to Rule 11(15), and subject to any adjustments in the figures based on the further submissions of counsel on points 5 and 6, above, I direct that Giscome pay Mr. Brown the sum of $8,143.45 in full not later than February 15 th , 2016.

Post-judgment interest will accrue on all sums outstanding after that date. [ 93 ] I would like to close by thanking both counsel for their work on this complicated case. It has been most helpful. _____________________ E. L. Bayliff Provincial Court Judge APPENDIX A British Columbia Court Interest Calculator ……………………………………………………………………………………………………… Gateway RV v. Giscome Contracting Ltd. Amount of Judgment: X Add PRE to POST $1,999.32 Date of the order: January 14, 2016 Date on which cause of action arose: May 11, 2012 Date of actual payment: January 14, 2016

PRE-JUDGMENT INTEREST May 11, 2012 - January 14, 2016 Start Date End Date # of days Approved % Interest ($ x % x Days / Days In Year) May 11, 2012 June 30, 2012 51 1.00% $2.79 $1,999.32 x 1.00% x 51 / 366 July 1, 2012 December 31, 2012 184 1.00% $10.05 $1,999.32 x 1.00% x 184 / 366 January 1, 2013 June 30, 2013 181 1.00% $9.91 $1,999.32 x 1.00% x 181 / 365 July 1, 2013 December 31, 2013 184 1.00% $10.08 $1,999.32 x 1.00% x 184 / 365 January 1, 2014 June 30, 2014 181 1.00% $9.91 $1,999.32 x 1.00% x 181 / 365 July 1, 2014 December 31, 2014 184 1.00% $10.08 $1,999.32 x 1.00% x 184 / 365 January 1, 2015 June 30, 2015 181 1.00% $9.91 $1,999.32 x 1.00% x 181 / 365 July 1, 2015 January 14, 2016 198 0.85% $9.22 $1,999.32 x 0.85% x 198 / 365 Total Pre-Judgment Interest: $71.96 Total Amount: $2,071.28 TOTAL: Judgement Amount ($1,999.32) + Pre-Judgment Interest ($71.96) = $2,071.28 British Columbia Court Interest Calculator ……………………………………………………………………………………………………..

Gateway RV v. Giscome Contracting Ltd. Amount of Judgment: Add PRE to POST $5,868.65 Date of the order: January 14, 2016 Date on which cause of action arose: June 28, 2012 Date of actual payment: January 14, 2016 PRE-JUDGMENT INTEREST June 28, 2012 - January 14, 2016 Start Date End Date # of days Approved % Interest ($ x % x Days / Days In Year) June 28, 2012 June 30, 2012 3 1.00% $0.48 $5,868.65 x 1.00% x 3 / 366

July 1, 2012 December 31, 2012 184 1.00% $29.50 $5,868.65 x 1.00% x 184 / 366January 1, 2013 June 30, 2013 181 1.00% $29.10 $5,868.65 x 1.00% x 181 / 365July 1, 2013 December 31, 2013 184 1.00% $29.58 $5,868.65 x 1.00% x 184 / 365January 1, 2014 June 30, 2014 181 1.00% $29.10 $5,868.65 x 1.00% x 181 / 365July 1, 2014 December 31, 2014 184 1.00% $29.58 $5,868.65 x 1.00% x 184 / 365January 1, 2015 June 30, 2015 181 1.00% $29.10 $5,868.65 x 1.00% x 181 / 365July 1, 2015 January 14, 2016 198 0.85% $27.06 $5,868.65 x 0.85% x 198 / 365 Total Pre-Judgment Interest: $203.52Total Amount: $6,072.17 TOTAL: Judgement Amount($5,868.65) + Pre-Judgment Interest($203.32) = $6,072.17 #14-46039 APPENDIX B List of Cases Cited by Counsel Ballantyne v.

McCulloch & Company and Sims, 1927 CarswellBC 66 (B.C. Co. Ct.) Demers v. Desrosier (# 2), 1929 CarswellAlta 74 (ABSC) Commercial Hotel v. Campbell, 1937 CarswellNS 60 (NSSC) T.G. Bright & Co. v. Kerr Estate, (SCC), [1939] S.C.R. 63 Toronto Dominion Bank v. Dearborn Motors and Reid Motors, 1968 CarswellBC 91 (BCSC) Canadian Imperial Bank of Commerce v. Sheahen, 1978 CarswellOnt 373 (Ont. Div. Ct.) Lister v. Dunlop Canada, (SCC), [1982] SCJ 38 FBDB v. T & T Engineering Ltd., 1982 BCJ 1608 (BCSC) 384238 Ontario Ltd. v. Canada, 1983 FCJ 153 (FCA) First Avenue Research v.

Donar Chemicals, 1987 BCJ 192 (BCSC, Skipp J.) Voth Bros Construction v. National Bank of Canada, 1987 - 02 - 12, BCCA Penderville Apts. Development Partnership v. Cressey Development Corporation, (BC CA), 1990 CarswellBC 15(BCCA) Waldron v. Royal Bank, 1991-02-18, BCCA Derrickson et. al. v. Tomat et. al., 1992-07-24, BCCA Booy v. Genstar Development and Pacific Court Bailiffs et al, 1998-04-21, BCSC (Leggatt, J.) Martin v. Goldfarb et. al, (ON CA), 1998 OJ 3403 (ONCA) In the Matter of the Bankruptcy of 1064521 Ontario Ltd o/a Giant Panda Buffet Restaurant, 1998 CarswellOnt 774 (Ont.

Court of Justice- General Division in Bankruptcy) Absolute Bailiffs Inc. v. Wagensteen, 1998 CarswellBC 3865, BCSC Dorico Investments Ltd. v. Weyerhauser Canada Ltd., 1999 ABQB 561

Chan v. Farrell Estates and Accurate Bailiffs, 2001 BCCA 92 Morgaurd Real Estate Investment Trust v. Davidson, 2001 BCCA 735 Elite Bailiff Services Ltd. v. British Columbia , 2003 BCCA 102 Gibb v. Nigeria , 2003 ABQB 604 Mundell v. Wesbild Holdings et al, 2007 BCSC 1326 Lonsdale Quay v. Jamshidian, 2006 BCPC 90 Hamilton v. WCB, Owens and Roberston, 3 March 1992, BCCA Chapman v. Summer et al and Expert Bailiffs, 2009 BCSC 1591 Scott v. Filipovic , 2014 BCSC 939