Kroeker v. Krebs and Klemp Date:, 2018 BCPC 1

Citation: Kroeker v. Krebs and Klemp Date: 20180102 2018 BCPC 1 File No: 17712 Registry: Houston IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS BETWEEN: RANDALL PATRICK KROEKER CLAIMANT AND: IRIS KREBS AXEL KLEMP DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Appearing on his own behalf: R. P. Kroeker Counsel for the Defendant: S. Lee Place of Hearing: Houston , B.C. Date of Hearing: December 4, 2017 Date of Judgment: January 2, 2018 INTRO DUCTION

[ 1 ] Randall Kroeker is before the court seeking damages against Iris Krebs for converting his personal property for her own use. At the material time, Ms. Krebs was a tenant of Mr. Kroeker’s lands and premises situated near Houston, B.C. Mr. Kroeker alleges that when she ended her residential tenancy, Ms. Krebs and her father, Axel Klemp, removed a number of items belonging to Mr. Kroeker. Ms. Krebs denies any knowledge as to the whereabouts of some of the contested items and asserts ownership of others. ISSUES [ 2 ] The issues before the court are as follows: a.

Does this Court have jurisdiction over all or some of the matters in issue? b. Does Mr. Kroeker own all or any of the contested items? c. Did Ms. Krebs take all or any of the contested items with the intent of depriving Mr. Kroeker of their possession or use? d. If Ms. Krebs did take the contested items what is Mr. Kroeker’s remedy? HISTORY OF PROCEEDINGS [ 3 ] Mr. Kroeker filed a Notice of Claim on February 7, 2017, against Iris Krebs (nee Klemp), Axel Klemp, and Dagmar Klemp seeking $11,500 in damages, plus costs, for the loss of: (

a) a decommissioned storage transport trailer; (

b) various household items; and (

c) various farm items. [ 4 ] On February 21, 2017, Ms. Krebs filed a Reply in which she contested Mr. Kroeker’s title and interest in some of the items he claimed and denied knowledge as to the whereabouts of others. [ 5 ] The matter came before Judge Jackson for a settlement conference on September 18, 2017. Mr. Kroeker and Ms. Krebs were in attendance; Axel and Dagmar Klemp were not. The parties did not reach a settlement and Judge Jackson ordered : a. the claim against Dagmar Klemp be dismissed; b. the parties exchange all relevant documents three weeks before the trial; and c. the parties provide one another with the name, address and telephone number and a

summary of the evidence of all witnesses, including expert witnesses, three weeks prior to trial. [ 6 ] On November 10, 2017, Mr. Kroeker filed with the court his affidavit setting out the history of the contested items and attached exhibits “A” to “K”. [ 7 ] The matter came before me for trial on December 4, 2017, in Houston Provincial Court. I heard oral evidence from Mr. Kroeker and Ms. Krebs and received into evidence the following three exhibits: Exhibit 1: Mr.

Kroeker’s November 10, 2017 affidavit attaching Exhibits “A” to “K”; Exhibit 2: Coloured photographs of a woodstove and the interior of the premises of the Property taken in December 2012; and Exhibit 3: Ms. Krebs’ Reply filed February 21, 2017, attaching: (

a) an appraisal of the Property; (

b) a list of items dated April 10, 2011; and (

c) her statement of defence. [ 8 ] Mr. Kroeker was self-represented; Ms. Krebs was represented by Ms. Lee, articled student to Ms. Linda Locke of the Upper Skeena Legal Assistance and Counselling Association in Hazelton, B.C. Mr. Klemp did not appear. BACKGROUND FACTS [ 9 ] Iris Krebs is the daughter of Axel and Dagmar Klemp (the “Klemps”). Ms. Krebs’ first language is German and has limited facility with English. [ 10 ] Iris Krebs and Glenn Krebs (the “Krebs”) were married in 2006.

For many years, they owned and lived on the lands and premises at 8920 Summit Lake Road, near Houston, B.C., legally described as: The Northeast ¼ of the North ½ of District Lot 5410, Range 5, Coast District, Parcel Identifier: 015-274-331 (the “Property”) [ 11 ] The Property consisted of 38.75 acres with a 1978 double wide trailer: see Exhibit 3, Appraisal. The Property is rural and fairly remote. [ 12 ] In 2009, the Royal Bank of Canada (“RBC”) commenced mortgage foreclosure proceedings against the Property.

These proceedings culminated in the court ordered sale of the Property to the Claimant, Randall Patrick Kroeker, and his wife, Kim Christina Kroeker (together the “Kroekers”) on or about March 12, 2013: see Exhibit 1. [ 13 ] The RBC was represented in the foreclosure proceedings by McMillan LLP, a Vancouver law firm. In the course of the foreclosure proceedings Wertz Appraisals provided McMillan LLP with an appraisal report dated November 24, 2011 (the “Appraisal”) which was filed in the trial of this matter as part of Exhibit 3.

[ 14 ] The Appraisal assessed the value of the Property as of April 26, 2011, inclusive of improvements, as $224,700. The Appraisal indicated the heating system in the residence was oil/wood/electrical and included “wood heaters”. The flooring is described as “carpet, vinyl, painted plywood”: see Exhibit 3, Appraisal. [ 15 ] Ms. Krebs says that on April 10, 2011, she faxed to McMillan LLP a list of items (the “List”) she and Mr. Krebs intended to remove from the Property when it was sold. The List states: All items that we put in the House!

Items that will be taken - fridges/Moffit/Kenmore - freezers/Eastat/Sears - washer/Kenmore - dryer/Maytec - all wood click flooring - all carpeting - all light fixtures - all curtains, hangings and covers - all tools & equipment in garage in all the outbuildings - all the watering tubs - electric fencer and lines (coop scorpions 120V) - three woodstoves (1 big and 1 small Osburn) (and one Lakewood stove) - all the lumber (anything from 2 x 48’ - rough 15’) - all firewood/ 2 - 3 pickup loads - pool table/bar size - plants . . . trees, etc. (see Exhibit 3, List) [ 16 ] Ms.

Krebs also provided McMillan LLP a list dated April 10, 2011, enumerating items that would not be moved. It states: All items that we put new in the house that can’t be moved! - septic tank and lines - well pump - hot water heater - sinks, toilets, faucets - water softener filters - sensor lightings - 300 ft. of electrical cable - 1500 blow in insulation - flowers, plants . . . trees - linoleum flooring (see Exhibit 3, List) [ 17 ] Ms. Krebs says that within a week of faxing the List to McMillan LLP, she telephoned their office and asked to speak to the person in charge of the RBC foreclosure of the Property.

The person with whom she spoke confirmed receipt of the List and indicated it was “fine.” Ms. Krebs understood from this conversation the RBC had no objection to her removing the items enumerated on the List before surrendering the Property to the new owners.

[ 18 ] The Kroekers purchased the Property in the foreclosure proceedings through Smithers Re/Max real estate agents, Dave and Sonia Barclay. The Property was registered to the Kroekers as Joint Tenants in the Prince Rupert Land Title Office on March 25, 2013. A copy of the title search of the Property dated November 8, 2017, is attached as Exhibit “A” to Mr. Kroeker’s November 10, 2017 affidavit: see Exhibit 1. [ 19 ] The Kroekers purchased the Property from the Royal Bank of Canada “as is” for $100,000. Mr. Kroeker did not tender into evidence the contract of purchase and sale of the Property (the “Contract”).

He did, however, acknowledge the Krebs were not parties to the Contract. He also conceded that none of the contested items were specifically mentioned in the Contract. [ 20 ] The Krebs still lived on the Property when the Kroekers took possession in February or March 2013. They agreed the Krebs would continue to occupy the Property, only now as residential tenants. Commencing March 1, 2013, the Krebs began paying the Kroekers $900 per month rent for their use and occupation of the Property. In addition to paying rent, the Krebs also agreed to maintain the Property.

The Kroekers reserved the right to access a small lake on the Property. [ 21 ] Mr. Kroeker claims he entered into a written rental agreement, albeit only with Mr. Krebs. Mr. Kroeker acknowledges that in March 2013, the Krebs lived on the Property as a couple. Ms. Krebs objected to the admissibility of the rental agreement. She said Mr. Krebs had signed the rental agreement long after he had abandoned her and moved off the Property. Ms. Krebs had never signed the rental agreement, nor had she even heard of or seen the rental agreement prior to the September 18, 2017 Settlement Conference. Mr. Kroeker said Mr.

Krebs went to his office and signed the rental agreement, but that Ms. Krebs “did not want to sign it.” Mr. Kroeker did not say when Mr. Krebs signed the rental agreement. As Mr. Krebs did not testify at trial, the rental agreement was not admitted into evidence. [ 22 ] Mr. Kroeker said that prior to purchasing the Property in 2013, he walked through the residence with the Krebs. They discussed a few items, such as the pool table. The Krebs said that if the Kroekers purchased the Property, the pool table would remain with the house. [ 23 ] The Krebs separated in the summer of 2013.

Prior to leaving permanently, Mr. Krebs moved various items off the Property. Ms. Krebs says Mr. Krebs took whatever items he chose to take, including all the money in their bank account. Ms. Krebs was “left with no money, no job, and no income.” [ 24 ] Mr. Krebs relocated to Telkwa, B.C. He told Ms. Krebs she could keep all their belongings which remained on the Property. Mr. Krebs never returned to the Property nor did he voice an intention to do so. [ 25 ] The items remaining on the Property after the Krebs separated included some or all of those items subject of Mr. Kroeker’s Notice of Claim. [ 26 ] After Mr.

Krebs left the relationship in 2013, Ms. Krebs continued to reside on the Property and paid Mr. Kroeker $900 per month rent. [ 27 ] On December 2, 2014, Mr. Kroeker entered into a written agreement with Glenn Krebs to purchase a Fisher King Stove for $200 and the Semi-Trailer for $1,000. Both of these items had been left on the Property when Mr. Krebs moved out and were still on the Property on December 2, 2014. Mr. Kroeker attached a copy of a written sales agreement dated December 2, 2014 as Exhibit “B” to his affidavit sworn November 10, 2017: see Exhibit1. [ 28 ] Mr. Kroeker did not disclose to Ms.

Krebs that he had purchased the Fisher King Stove and the Semi-Trailer from Mr. Krebs until Ms. Krebs ended her tenancy and was poised to move off the Property at the end of July 2015. [ 29 ] On December 2, 2014, the date Mr. Kroeker says he purchased the Fisher King Stove and the Semi-Trailer, Mr. Krebs had not lived on the Property for approximately 16 months. [ 30 ] Mr. Kroeker says he did not discuss the purchase of the Fisher King Stove and the Semi-Trailer with Ms. Krebs because he believed Mr. Krebs owned these items and he did not know how Ms.

Krebs would react to this transaction. [ 31 ] After her brother died in 2015, Ms. Krebs decided to end her tenancy of the Property and move in with her parents, Axel Klemp and Dagmar Klemp . In July 2015, Ms. Krebs gave Mr. Kroeker notice of her intention to end the tenancy. [ 32 ] While she resided on the Property Ms. Krebs used the Semi-Trailer as a storage facility for her personal belongings. A photograph of the Semi-Trailer is attached as Exhibit “C” to Mr. Kroeker’s November 10, 2017 affidavit. [ 33 ] When Ms. Krebs was about to move off the Property at the end of July 2015, Mr.

Kroeker told her he had purchased the Semi- Trailer from Mr. Krebs and it was not to leave the Property. Ms. Krebs was unaware of and upset at this revelation. Ms. Krebs said “it sucks” and asked Mr. Kroeker if he had a receipt for his purchase of the Semi-Trailer. Mr. Kroeker says he told Ms. Krebs he did have a receipt; Ms. Krebs claimed he told her he did not. [ 34 ] Mr. Kroeker said he reluctantly agreed that Mr. Klemp and Ms. Krebs could temporarily relocate the Semi-Trailer to the Klemp property at 1190 Morice River Road, Houston, B.C. so Ms. Krebs could unpack her belongings. He told Mr.

Klemp the Semi-Trailer was to be returned to the Property by September 30, 2015. He also directed the Semi-Trailer was not to be removed from the Property unless he was present. It was Mr. Kroeker’s intention to have Ms. Krebs sign a document acknowledging the conditions upon which he would allow her to remove the Semi-Trailer from the Property, however, Ms. Krebs refused to cooperate. [ 35 ] The Semi-Trailer was removed from the Property on July 31, 2015, in Mr. Kroeker’s absence. Mr.

Kroeker attached as Exhibit “D” to his November 10, 2017 affidavit, photographs from his outdoor camera showing an empty semi-truck arriving on the Property at 12:30 p.m. on July 31, 2015, and leaving with the Semi-Trailer at 12:43 p.m.

[ 36 ] Mr. Kroeker attempted to recover the Semi-Trailer from the Klemp’s residence at 1190 Morice River Road; however, Mr. Klemp refused him entry. Mr. Klemp told Mr. Kroeker “there is nothing here that belongs to you.” [ 37 ] On or after August 1, 2015, Mr. Kroeker inspected the Property. He discovered the following items had also been removed from the Property without his knowledge or consent: (

a) a wood stove from the entrance way (the “entrance way wood stove”); (

b) uninstalled click board pine flooring (“the wood flooring”) which had been stacked in the spare bedroom; (

c) four corral gates (the “corral gates”); (

d) a spare well water pump that was in the Semi-Trailer (the “spare pump”); (

e) a French door from the dining room (the “French door”); and (

f) the mirrored closet doors from the master bedroom (the “mirrored closet doors”). On August 6, 2015, Mr. Kroeker sent Ms. Krebs a registered letter and a facsimile to Axel Klemp requesting these items be returned to him by September 15, 2015. A copy of Mr. Kroeker’s August 6, 2015 letter is attached as Exhibit “E” to his November 10, 2017 affidavit: see Exhibit 1. The Semi-Trailer [ 38 ] With respect to the Semi-Trailer Mr. Kroeker says: a. he purchased the Semi-Trailer from Mr. Krebs on December 2, 2014; b. he paid Mr.

Krebs $1000 cash for the Semi-Trailer; c. he purchased a derelict Fisher King wood stove from Mr. Krebs at the same time as the Semi-Trailer for which he paid $200 cash; d. Mr. Krebs represented he was the rightful owner of the Semi-Trailer and Fisher King wood stove at the time of the purchase and Mr. Kroeker believed that to be true; e. he never told Ms. Krebs about the transaction until she ended her tenancy of the Property at the end of July 2015; f. Ms. Krebs had no claim to the Semi-Trailer and Fisher King wood stove because she was separated from Mr. Krebs when Mr.

Kroeker purchased these items; and g. although Mr. Kroeker purchased the Semi-Trailer for $1000, it costs $5,000 to replace. [ 39 ] Ms. Krebs states t he Semi-Trailer was on the Property when Mr. Krebs left the relationship in 2013. He told Ms. Krebs that anything he left on the Property was hers and she could do with what she wanted because he didn’t want any of it. Hence, Ms. Krebs acquired ownership of the Semi-Trailer in July 2013, when Mr. Krebs abandoned her, his belongings and their debts. Neither Mr. Krebs nor Mr. Kroeker disclosed to Ms. Krebs the December 2, 2014 sale of the Semi-Trailer.

She first learned of this transaction from Mr. Kroeker at the end of July 2015, when she was about to move off the Property. The entrance way wood stove [ 40 ] With respect to the entrance way wood stove, Mr.

Kroeker says: a. it was a fixture which he came to own along with the Property in March 2013; b. it was not specified as a fixture in the Contract; c. he last saw the entrance way wood stove in the residence in the spring of 2015; d. when he inspected the Property on or after August 1, 2015, all that remained of the entrance way wood stove was the stove pipe emanating from the ceiling; and e. a similar new wood stove costs $2,000. [ 41 ] Mr. Kroeker did not put into evidence any written estimate of the cost of replacing the entrance way wood stove with one of similar value. [ 42 ] Ms.

Krebs says firstly, pursuant to her agreement with the RBC, she owned all three wood stoves in the residence. Secondly, when she moved off the Property on July 31, 2015, she did so with the assistance of her girlfriend. The wood stoves weighed 800 pounds each and were too heavy to move, so she left them. She does not know what became of the wood stoves after she moved out. The Property was remote but accessible and despite the presence of outdoor cameras, insecure. Ms. Krebs says it is possible that unknown persons pilfered items on the Property after she had moved out.

The wood flooring [ 43 ] With respect to the wood flooring, Mr. Kroeker says: a. the wood flooring was installed in the living and dining rooms at the time the Property was listed for sale. A list of the photographs taken by realtors, Dave and Sonia Barclay of Re/Max in Smithers, B.C. was attached as Exhibit “G” to Mr. Kroeker’s November 10, 2017 affidavit.

The photographs were taken in December 2012 and depict the wood flooring laid in the living and dining rooms; b. when he inspected the Property prior to purchasing it in 2013, the wood flooring had been removed and was stacked in a pile in the master bedroom under a coverlet; c. the Krebs told him they had uprooted the wood flooring because if they were to be “kicked out” they were taking it with them;

d. the Contract did not specify the wood flooring was a fixture or included in the purchase price for the Property; e. the Krebs promised Mr. Kroeker they would reinstall the wood flooring prior to the Kroekers purchasing the Property in 2013; f. the wood flooring is a fixture which he acquired along with the Property in March 2013; g. in July 2015, Ms. Krebs again told Mr. Kroeker she would leave the wood flooring when she moved off the Property; h. when she vacated the Property on July 31, 2015, Ms. Krebs took the wood flooring with her; i. someone from Home Depot in Prince George told Mr.

Kroeker the cost to replace the wood flooring, albeit with a better quality product, is $1,500 to $2,000; and j. Mr. Kroeker paid his current tenant $30 per hour for 10 hours to install new wood flooring. [ 44 ] Mr. Kroeker did not provide any invoice or receipt setting out the cost of replacing or installing the wood flooring. [ 45 ] Ms. Krebs said that she personally purchased the wood flooring and made no agreement with the Kroekers to include it in the sale price of the Property. She points to the November 24, 2011 Appraisal indicating the floor was “carpet, vinyl and painted ply[wood]”.

The corral gates [ 46 ] With respect to the corral gates, Mr. Kroeker states: a. there were four corral gates in place and intact on the Property on July 31, 2015. He has photographs from his outdoor cameras time stamped 6:04 p.m., 8:20 p.m. and 9:40 p.m. on July 31, 2015, showing the pickup truck Ms. Krebs used to move her belongings going through the corral gates: see Exhibit 1, Exhibit “H” to Mr. Kroeker’s November 10, 2017 affidavit; b. on August 1, 2015, Mr.

Kroeker noted that four corral gates were missing from the Property; c. the corral gates were fixtures which he acquired with the Property in March 2013; d. he last saw the corral gates on the property a month prior to Ms. Krebs moving out; e. his outdoor surveillance cameras did not capture anyone removing the corral gates from the property. Specifically, the cameras did not show Ms. Krebs leaving the Property with the corral gates; and f. the corral gates are worth a total of $400 brand new (there were two 8’ gates worth $200 each and two 4’ gates worth $85 each). [ 47 ] Mr.

Kroeker did not tender into evidence any written estimates for the cost of replacing the corral gates with ones of similar age and value. [ 48 ] Ms. Krebs says when she vacated the Property the corral gates were intact. This is corroborated by Mr. Kroeker’s outdoor surveillance cameras. The house is secluded, but accessible and left unattended after Ms. Krebs moved out. Ms. Krebs says that if the corral gates went missing, they did so after she had vacated the Property and not by her doing. The spare pump [ 49 ] With respect to the spare water pump, Mr.

Kroeker states: a. it was a new and unused well water pump stored in the Semi-Trailer; b. Mr. Krebs said he was going to install a new well water pump, but the old one started working again so he kept the new one as a spare; c. Mr. Krebs told Mr. Kroeker in 2013 that he could have the spare pump because the Krebs had no use for it; d. when Ms. Krebs vacated the Property with the Semi-trailer, she did not leave the spare pump; e. he did not pay the Krebs any money for the spare pump; f. his Contract with the RBC made no mention of the spare pump; and g. a new well water pump costs $400. [ 50 ] Mr.

Kroeker did not provide any written documentation showing the cost of a new well water pump. [ 51 ] Ms. Krebs says the well water pump was in the well at the time she vacated the Property. She did not address the existence or whereabouts of the spare pump. The French door [ 52 ] With respect to the French door, Mr. Kroeker states: a. it was a single interior door installed in the doorway separating the dining room from the entrance way or boot room;

b. a photograph of the French door provided by Dave and Sonia Barclay was attached as Exhibit I to Mr. Kroeker’s November 10, 2017 affidavit; c. the French door was a fixture which he acquired with the Property in March 2013; and d. Mr. Kroeker received a verbal estimate from Smithers Lumber the French door would cost $450 to replace. [ 53 ] Mr. Kroeker did not put into evidence any written estimate as to the cost of replacing the French door with one of similar age or condition. [ 54 ] Ms.

Krebs says the French door between the entrance way and dining room was removed from its frame so she could move out her heavy furniture. When she left the Property, that door remained in the house, albeit not in its frame. Ms. Krebs also left an extra set of doors in the basement. Ms. Krebs denies removing any of the interior doors from the residence when she moved off the Property. The mirrored closet doors [ 55 ] With respect to the closet, Mr.

Kroeker submits: a. the doors are fixtures which he acquired with the Property in March 2013; b. a photograph of the mirrored closet doors taken by Dave and Sonia Barclay of Re/Max was attached as Exhibit “J” of Mr. Kroeker’s November 10, 2017 affidavit; c. the mirrored closet doors were intact when Mr. Kroeker inspected the Property prior to purchasing in in March 2013; and d. he received a verbal estimate from Smithers Lumber that new mirrored closet doors would cost $450. [ 56 ] Ms. Krebs said the mirrored closet doors in the master bedroom were broken when she moved into the house.

She kept them intact by reinforcing the mirrors from behind with cardboard and tape. She placed stickers over the more obvious cracks. When Ms. Krebs was removing all her items from the closet in July 2015, the doors shattered and she threw them out. COUNTERCLAIM [ 57 ] Ms. Krebs says that when she vacated the Property she left behind a: (a) $2,000 bar size pool table; (

b) washer; (

c) dryer; (

d) fridge; (

e) stove; and (

f) dishwasher. She values these items at $2,700 in total and has counterclaimed for this sum. [ 58 ] In his November 10, 2017 affidavit, Mr. Kroeker acknowledges Ms. Krebs left the pool table and appliances on the Property, in which case, he states, “I do not owe her any money for these items.” Although he did not claim any of these items were fixtures, Mr. Kroeker said the Krebs promised him the pool table would remain in the house but that was “neither here nor there” and as to the remaining appliances, Ms. Krebs could come and get them at any time.

Issue #1: Does this Court have jurisdiction over all or some of the matters in issue? Legal Framework [ 59 ] Mr. Kroeker’s relationship with Ms. Krebs was that of landlord and tenant. In British Columbia, the Residential Tenancy Act, SBC 2002, c 78 , (“ RTA ”) regulates the legal relationship between landlords and tenants of residential accommodations. There are some types of accommodation excluded by the RTA , but in this case the Property fell within the ambit of the legislation. [ 60 ] Section 2(1) of the RTA states: Despite any other enactment but subject to

section 4 [what this Act does not apply to] , this Act applies to tenancy agreements, rental units and other residential property. [ 61 ]

Section 1 of the Act defines “tenancy agreement” as “an agreement, whether written or oral, express or implied, between a landlord and a tenant, respecting possession of a rental unit, use of common areas and services and facilities, and includes a licence to occupy a rental unit”. A "rental unit" means living accommodation rented or intended to be rented to a tenant. [ 62 ]

Section 5 prohibits landlords and tenants from contracting out of the provisions of the RTA and states that any attempt to avoid or contract out of the RTA is of no effect. [ 63 ]

Section 13 of the RTA requires l andlords to prepare a written agreement for every tenancy. Both landlords and tenants must sign and date the agreement. Landlords need to provide a printed copy to their tenants within 21 days of entering into the agreement. Even if a landlord fails to prepare a written agreement, the standard terms of a tenancy agreement still apply: s. 12 RTA . [ 64 ] The standard terms of a tenancy agreement set out in s. 13 of the RTA include a provision setting out “ which services and facilities are included in the rent”. Services and facilities are defined in s. 1 of the RTA , and include, among other things: (

a) appliances and furnishings; (

b) storage facilities; and (

c) heating facilities or services. [ 65 ] Sections 23 and 35 of the RTA require the landlord and tenant to do a condition inspection report when the tenant moves in and out of the residence. [ 66 ]

Section 37 requires a vacating tenant to leave the rental unit reasonably clean, and undamaged except for reasonable wear and tear.

[67]

Section 58 provides that any matter involving rights, obligations, and prohibitions under the RTA or under the terms of a tenancyagreement may be submitted to the director for dispute resolution, provided that if the claim is for an amount greater than the monetarylimit under the Small Claims Act, the Supreme Court has the discretion to hear the matter. It states: 58

(1) Except as restricted under this Act, a person may make an application to the director for dispute resolution in relation to a disputewith the person's landlord or tenant in respect of any of the following: (

a) rights, obligations and prohibitions under this Act; (

b) rights and obligations under the terms of a tenancy agreement that (

i) are required or prohibited under this Act, or (ii) relate to (

A) the tenant's use, occupation or maintenance of the rental unit, or (

B) the use of common areas or services or facilities.

(2) Except as provided in subsection (4), if the director accepts an application under subsection (1), the director must resolve the disputeunder this Part unless (

a) the claim is for an amount that is more than the monetary limit for claims under the Small Claims Act, (a.1) the claim is with respect to whether the tenant is eligible to end a fixed term tenancy under

section 45.1 [tenant's notice: familyviolence or long-term care], (

b) the application was not made within the applicable period specified under this Act, or (

c) the dispute is linked substantially to a matter that is before the Supreme Court. (2.1) Subsection (2) (a.1) of this

section does not apply if the basis of the claim is that a statement purporting to confirm a tenant'seligibility to end a fixed term tenancy for the purposes of

section 45.1 (2) was made by a person who was not authorized to do so underthe regulations.

(3) Except as provided in subsection (4), a court does not have and must not exercise any jurisdiction in respect of a matter that must besubmitted to the director for dispute resolution under this Act.

(4) The Supreme Court may (

a) on application, hear a dispute referred to in subsection (2) (

a) or (c), and (

b) on hearing the dispute, make any order that the director may make under this Act. [68]

Section 67 states that the Arbitrator may fix compensation for damage or loss arising from a failure of a landlord or tenant tocomply with the RTA. [69] In Jestadt v. Performing Arts Lodge Vancouver, 2013 BCCA 183 , the B.C.

Court of Appeal held a RTA disputeresolution officer has jurisdiction to apply the common law, including the common law as it relates to the law of contract formation. [70] Under s. 84.1 (1) of the RTA, the director (represented by the dispute resolution officer) has exclusive jurisdiction to “enquireinto, hear and determine all issues of fact and law and discretion arising or required to be determined in a dispute resolution proceedingor in a review under Division 2 [or 3 of the RTA] and to make any order permitted to be made.”

Section 84.1 (2) states:

(2) A decision or order of the director on a matter in respect of which the director has exclusive jurisdiction is final and conclusive and isnot open to question or review in any court. [71] This court has repeatedly held that ss. 58 and 84.1 of the RTA means it does not have jurisdiction to adjudicate on rights andobligations which are the subject of the RTA: Meyer v. DiMambro, 2013 BCPC 95 at para. 13, Babich v. Babich, 2015 BCPC175 , para. 133, Universal Ventures Ltd. v. Gillespie [1993] BCJ No. 2691 (B.C. Prov. Ct.); Beller v. Andi PropertiesLtd. [1993] BCJ No. 2694 (B.C. Prov. Ct.); Standfield v.

Sebal 2004 BCPC 418 ; Kasey v. Drake Investments Ltd. 2005 BCPC368; Harron Enterprises Inc. v. Von Pfahlenburg 2004 BCPC 264 . [72] The reasons for restricting the right of a landlord or tenant to commence an action in Provincial and British Columbia SupremeCourt is the existence of a specialized tribunal which offers a timely, effective, simplified, less expensive procedure for resolvingdisputes. As parties frequently make claims and counter claims, arbitrations before the Residential Tenancy Branch can generally dealwith all matters in one forum: Standfield v.

Sebal and Sebal, 2004 BCPC 418 , para. 10. [73] In McKay v. Olsen, [1995] B.C.J. No. 2806 Judge Stansfield noted as follows: [8] A review of the Residential Tenancy Act . . . makes it clear that the legislature has intended to remove from this court theadjudication of disputes between residential landlords and tenants. In almost all cases now, this court has no jurisdiction to consider themerits of such disputes, but only to enforce monetary orders made at the Branch. In Pirro v. Li [1994] B.C.J. No. 1572

(QuickLaw) Vancouver No. 92-12308, January 19, 1994, I reviewed the very limited jurisdiction of this court in residential tenancymatters. [74]

Section 85 of the RTA provides that any monetary order made by an arbitrator may be filed in the Provincial Court and enforcedas if it were an order of the Court. This Court only has the authority to enforce decisions of the arbitrator. In Meyer, Judge Skilnickstated: [13] Under

section 85, this court can enforce orders under the Residential Tenancy Act, but it cannot decide issues under the Act. Apartfrom the jurisdiction to enforce orders of the Director as set out in

section 85, this court has no jurisdiction to decide a claim that may bebrought under the Residential Tenancy Act. . . [Citations Omitted] [75] Also relevant is s. 24 of the Residential Tenancy Regulation, BC Reg 477/2003 which provides that if a tenant leaves itemsbehind after moving out, the landlord might consider the items abandoned. A landlord is required to give the tenant proper notice beforedisposing of a tenant’s personal items if their value exceeds $500. The landlord is also obligated to take reasonable care to ensure theitems are not damaged, lost or stolen when they are removed and stored.

Application of the RTA [76] I note the authorities in which this court declined jurisdiction generally engaged s. 58(3) of the RTA which directs that acourt must not exercise jurisdiction on a matter that must be submitted to the director under the RTA, except if the Supreme Court hasjurisdiction under s. 58(4). In this case, there is no evidence either party applied to the Residential Tenancy Branch for dispute resolutionin relation to the matters before the court. [77] I find Mr. Kroeker’s claim for damages arising from missing or damaged fixtures relates to Ms.

Krebs’ obligation as a tenantunder s. 37 of the RTA. Specifically, the issues with respect to the wood flooring, the entrance way wood stove, the corral gates, theFrench door, and the mirrored closet doors would ordinarily be dealt with under the RTA by a dispute resolution officer at the ResidentialTenancy Branch. [78] A dispute resolution officer for the Residential Tenancy Branch may or may not have agreed to adjudicate the issues withrespect to the Semi-Trailer and the spare pump. [79] Although I find most of Mr. Kroeker’s claims against Ms.

Krebs fall within the jurisdiction of the Residential Tenancy Branch,in the event I am wrong, I will consider the parties claim and counterclaim. Issue #2: Does Mr. Kroeker own all or any of the contested items? Legal Framework [80] In essence, Mr. Kroeker is seeking damages from Ms. Krebs for conversion of the contested items. In Boma ManufacturingLtd. v.

Canadian Imperial Bank of Commerce, , at para. 31, Iacobucci J., for a majority of the Supreme Court ofCanada, defined the tort of conversion as follows: The tort of conversion involves a wrongful interference with the goods of another, such as taking, using or destroying these goods in amanner inconsistent with the owner's right of possession. [81] The elements of the tort of conversion are: (

a) a wrongful act; (

b) involving a chattel; (

c) consisting of handling, disposing of ordestroying the chattel; and (

d) with intent or effect of denying or negating the title of another person to the chattel. [82] Before Mr. Kroeker can succeed with his claim he must first establish ownership or a possessory interest in the contested items. As all the contested items belonged to the Krebs prior to his acquiring the Property, Mr. Kroeker must show how he came to own orpossess them. Relevant to this analysis is the common law as it relates to contracts and gifts. Contracts [83] There is no definitive list of essential prerequisites of a contract.

The elements the court usually consider necessary are: a. the intention to create legal relations; b. competent parties; c. an offer containing the essential terms; d. an acceptance of the offer; e. consideration; and f. certainty of the agreed terms. See: Blue Line Hockey Acquisition Co. v. Orca Bay Hockey Limited Partnership, 2008 BCSC 27 at para. 40, citing Whistler MountainSki Corporation v.

Projex Management Ltd. (1994), (BC CA), 90 B.C.L.R. (2d) 283 (C.A.) at para. 41. [84] Also relevant to the issues before the court is the doctrine of privity of contract, which states: … a contract cannot, as a general rule, confer rights or impose obligations arising under it on any person except the parties to it … Onthe one hand, it precludes parties to a contract from imposing liabilities or obligations on third parties. On the other, it prevents third

parties from obtaining rights or benefits under a contract … London Drugs Ltd. v. Kuehne & Nagel International Ltd., (SCC), [1992] 3 S.C.R. 299 at para. 200. Gifts [85] A gift is a voluntary transfer of property to another without consideration. The essential elements of a gift are: a. capacity of the donor to make the gift; b. intention of the donor to make a gift; c. completed delivery of the subject matter of the gift to or for the donee; and d. acceptance of the gift by the donee. [86] The common law holds that court ought not to act to complete an imperfect gift when the essential elements are absent.

In otherwords, a mere promise to make a gift is unenforceable: Kooner v. Kooner, (BCSC). [87] Another common law maxim relevant to these proceedings is de minimis non curat lex or the law does not care for small ortrifling matters. ANALYSIS [88] Mr. Kroeker bears the burden of proving his claim on a balance of probabilities and Ms. Krebs bears the burden of proving hercounterclaim on a balance of probabilities. As the trial judge, I must carefully scrutinize the relevant evidence to determine whether it ismore likely than not that an alleged event occurred: F. H. V. McDougall, 2008 SCC 53 , at para. 49. [89] Mr.

Kroeker acknowledges he had no contractual relationship with Glenn or Iris Krebs with respect to his purchase of theProperty. The Kroekers’ Contract was with RBC and neither Glenn nor Iris Krebs was privy to the Contract. Nevertheless, Mr. Kroekerasserts ownership over many of the contested items on the basis they were fixtures which he acquired with the Property. [90] It is uncontested the Kroekers’ acquired the Property as a result of RBC foreclosing on its mortgage. Mortgage securityordinarily attaches to fixtures but not chattels: CMIC Mortgage Investment Corp. v.

Rodriguez, 2010 BCSC 308 , at paras. 17. [91] In Scott v. Filipovic, 2015 BCCA 409 , the B.C. Court of Appeal, citing La Salle Recreations Ltd. v. Canadian CamdexInvestments Ltd. (BC CA), and Zellstoff Celgar Ltd. v.

British Columbia, 2014 BCCA 279 , set out thefollowing five principles for determining whether an item is a fixture or chattel: a. articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless thecircumstances show they were intended to be part of the land. b. articles affixed to the land even slightly are to be considered part of the land unless the circumstances show they were intendedto continue as chattels. c. the circumstances necessary to alter the prima facie character of the articles are circumstances which show the degree ofannexation and object of such annexation, which are patent to all to see. d. the intention of the person affixing the

article to the soil is material only so far as it can be presumed from the degree and objectof the annexation. e. even in the case of tenants' fixtures put in for the purposes of trade, they form part of the freehold, with the right, however, tothe tenant, as between him and his landlord, to bring them back to the state of chattels again by severing them from the soil, and that theypass by a conveyance of the land as part of it, subject to this right of the tenant. [92] Mr. Justice Chiasson, for the unanimous court in Scott v.

Filipovic, goes on to state at paras. 19 and 20: [19] In Bruce Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014) at 118, the author observes that “[t]he determination ofwhether a chattel has been transformed into a fixture is a matter of intention, objectively determined”. The intention is ascertained byexamining the degree and object or purpose of annexation.

At p. 120, he states that “[w]hether or not a chattel becomes a fixture cannotbe conclusively controlled by contract,” and continues: The objective test of intention found in the law of fixtures is mainly aimed at protecting third parties who may be dealing with the land atsome future point.

In theory, by relying on external factors, third parties, who may be unaware of some existing contractualarrangements, can, in theory, know whether a given item is a chattel or a fixture. [20] As explained in Anne Warner La Forest, Anger & Honsberger: Law of Real Property, 3d ed. (Toronto: Canada Law Book, 2006)(loose-leaf updated December 2014, release 13) vol. 2 at §20:20, whether an object is a chattel or a fixture is determined by operation oflaw: A chattel becomes a fixture by implication of law.

Thus, whether or not an object has become a fixture is determined by the applicationof established rules to the facts of the case rather than by agreement or conveyance. Parties may determine by contract their rights asbetween themselves, but this does not affect the rights of third parties. [93] Mr. Kroeker testified he had no knowledge of the existence of the List Ms. Krebs says she faxed to the RBC lawyersenumerating the items the Krebs were going to remove from the Property. I accept that: (

a) Mr. Kroeker was a third party to any

agreement between the Krebs and RBC with respect to the List; (

b) some of the contested items were fixtures; and (

c) the fact the contested items were specified in the List and not specified in the Contract is not determinative of ownership. Conclusion on ownership of the contested items Ownership of the Semi-Trailer [ 94 ] With respect to the Semi-Trailer, Mr. Kroeker purchased it from Glenn Krebs 16 months after Mr. Krebs separated from Ms. Krebs and moved off the property. I conclude that Mr. Kroeker knew or ought to have known that Mr. Krebs did not have the right to sell the Semi-Trailer without Ms. Krebs’ knowledge or consent. He was not a bona fide purchaser for value without notice.

He knew the Krebs were separated and chose to ignore Ms. Krebs’ potential interest in the Semi-Trailer and did so at his peril. [ 95 ] The Semi-Trailer was on the Property which Ms. Krebs had rented on her own behalf for 16 months. It contained her belongings. If Mr. Kroeker actually believed it was Mr. Krebs’ to sell, then he was reckless or willfully blind to the question of ownership and failed to make inquiries that an honest and reasonable person would make in the circumstances. [ 96 ] I find that Mr. Kroeker has failed to prove on the balance of probabilities that he owned the Semi-Trailer.

Ownership of the wood flooring [ 97 ] When the Kroekers inspected the Property prior to finalizing the Contract, the wood flooring was not installed; in fact, it was stacked in the master bedroom. The Kroekers purchased the property on an “as is” basis. I find the wood flooring was not a fixture and Mr. Kroeker did not acquire title to that item with his purchase of the Property. At best, the Krebs’ offer to reinstall the wood flooring was a gift still unperfected when Ms. Krebs moved off the Property on July 31, 2015. [ 98 ] I am not satisfied Mr. Kroeker owned the wood flooring subject of the Notice of Claim.

Ownership of the spare pump [ 99 ] In 2013, Mr. Krebs offered to give Mr. Kroeker the spare pump stored in the Semi-Trailer. I find this an unperfected gift as Mr. Kroeker never took physical possession of the spare pump. [ 100 ] As explained above, the court does not enforce unperfected gifts, and therefore Mr. Kroeker has failed to prove he owned the spare pump. Ownership of the entrance way wood stove, French door and mirrored closet doors [ 101 ] Ms. Krebs asserts ownership of all the wood stoves in the house on the basis they were enumerated on the List she faxed to McMillan LLP on April 6, 2011.

The wood stoves were not mentioned in the Contract. I note that Mr. Kroeker purchased the property in March 2013 for $100,000, which was less than half of its April 26, 2011 appraised value of $224,700. In my view, this corroborates to some extent Ms. Krebs’ evidence that she notified RBC she intended to remove a number of items from the Property that may otherwise have been considered fixtures and the RBC did not take action to prevent this occurrence. Nevertheless, I find the entrance way wood stove was a fixture to which Mr. Kroeker acquired title at the time he purchased the Property.

It was attached to a chimney pipe in the ceiling and part of the residence’s heating system. Whatever agreement Ms. Krebs may have made with the RBC, it did not operate to convert the entrance way wood stove from a fixture to a chattel when the Kroekers purchased the Property without notice of any such agreement. [ 102 ] Similarly, I find the French door and the mirrored closet doors were also fixtures. Ms. Krebs has not suggested otherwise. I am satisfied Mr. Kroeker has established ownership of the entrance way wood stove, French door and mirrored closet doors. Ownership of the corral gates [ 103 ] Although Ms.

Krebs asserts ownership of all the “ electric fencer and lines” set out in the List, I find the corral gates were affixed to the Property. There is nothing in the circumstances to suggest otherwise. Ms. Krebs does not contest Mr. Kroeker’s ownership of these items. I am satisfied that Mr. Kroeker acquired ownership of the corral gates along with the Property in March 2013. Issue # 3: Did Ms. Krebs take all or any of the contested items with the intent of depriving Mr. Kroeker of their possession or use? [ 104 ] For the reasons set out above, I am not satisfied Mr.

Kroeker owned or had a possessory interest in the Semi-Trailer, the well water pump and the wood flooring. Accordingly, Mr. Kroeker had no right to their possession or use. [ 105 ] Mr. Kroeker inspected the Property in early August 2015. He discovered the following items had been removed from the Property without his knowledge or consent: (

a) a wood stove from the entrance way; (

b) corral gates; (

c) French door from the dining room; and (

d) mirrored closet doors from the master bedroom. [ 106 ] Ms. Krebs says she did not remove the wood stove, French door or corral gates from the property. She says the mirrored closet doors were beyond repair and she threw them out. [ 107 ] Mr. Kroeker did not attend at the Property when Ms. Krebs moved out or complete a moving out inspection as required under the RTA . He left the property unattended and insecure.

Clearly his outdoor cameras were not as effective as he claims because they do not appear to have captured the image of anyone removing the corral gates. [ 108 ] I am not satisfied on a balance of probabilities that it was Ms. Krebs who removed the corral gates or French door. She claims these items were present when she vacated the Property. The photographs upon which Mr. Kroeker relies show Ms. Krebs leaving the Property in a pickup full of her belongings. The pickup was driving through the corral gate which was in place and intact. Ms. Krebs

also says that although the French door was off its hinges, she left it in the residence. [109] In reaching this conclusion, I have taken into consideration that Ms. Krebs left behind a pool table and appliances worth morethan the French door, entrance way wood stove and corral gates. [110] As to the mirrored closet doors, I accept Ms. Krebs explanation they were held together with cardboard and tape and fell apartwhen she moved out at the end of July 2015. I am satisfied Ms. Krebs considered the mirrored closet doors beyond repair and discardedthem. Although Mr.

Kroeker provided oral evidence of an estimate he received from Smithers Lumber for new mirrored closet doors, heprovided no evidence as to the value of the mirrored closet doors which were ten years old and broken. I conclude that if the mirroredcloset doors had any value, it was minimal. Issue # 4: If Ms. Krebs did take the contested items for her own use, what is Mr. Kroeker’s remedy? [111] I have characterized Mr. Kroeker’s Notice of Claim as a claim for damages for the tort of conversion.

As set out above,conversion “involves a wrongful interference with the goods of another, such as taking, using or destroying these goods in a mannerinconsistent with the owner’s right of possession”: Boma Manufacturing Ltd. v Canadian Imperial Bank of Commerce. Conversion is astrict liability tort. If established, the defendant will be forced to purchase the converted asset from the Claimant. The general measureof damages is the fair market value of the converted asset as of the date of conversion: Asamera Oil Corporation Ltd. v. Sea Oil &General Corporation et al (SCC). [112] If Mr.

Kroeker made out his claim for conversion, which I do not find, his remedy is the fair market value of the items at thetime of conversion. Mr. Kroeker provided the Court with some hearsay evidence as to the replacement value of the items but noevidence as to their actual market value at the time of the alleged conversion, namely, July 31, 2015. CONCLUSION ON THE NOTICE OF CLAIM [113] I find Mr. Kroeker has not proven his case on a balance of probabilities and dismiss his claim. Specifically, Mr.

Kroeker hasnot: a. established his ownership of the Semi-Trailer, the spare pump and the wood flooring; b. proven on a balance of probabilities Ms. Krebs was responsible for the missing corral gates and French door; and c. proven the value of the mirrored closet doors was more than de minimis. CONCLUSION ON THE COUNTERCLAIM [114] Ms. Krebs left a number of items in the Property when she ended the tenancy, namely, the fridge, stove, washer, dryer, pooltable and dishwasher. I accept these items were chattels and not fixtures. Mr. Kroeker did not ask Ms.

Krebs to leave these items nor didhe agree to compensate her for them. Ms. Krebs did not express any desire to have the items returned to her nor did she provide writtenestimates as to their value. [115] I find Ms. Krebs abandoned the items when she left the property over two years ago. Mr. Kroeker indicated she could have goneand retrieved them but chose not to. Abandonment is a defence to conversion. I find Ms. Krebs voluntarily relinquished her interest inthe items for which she now claims compensation. Accordingly, I find Ms. Krebs has not proven her counterclaim on a balance ofprobabilities.

DISPOSITION [116] In conclusion, I dismiss both the Notice of Claim and Counterclaim. Even if this Court had jurisdiction to determine some or allthe matters in issue, neither party has proven his or her claim on a balance of probabilities. Each party will bear his or her own costs. [117] I direct the Smithers Court Registry to prepare the form of this order and the signatures of both of the parties approving the formof the order are dispensed with and not required. ________________________ J. T. Doulis Provincial Court Judge Province of British Columbia