MacAulay v. Meise, 2020 BCPC 135

Citation: MacAulay v. Meise 2020 BCPC 135 Date: 20200629 File No: 1854004 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: BARBARA A. MACAULAY and LYLE D. MEISE CLAIMANTS AND: HENRY MEISE and SHANNON MEISE, aka SHANNON ANDERSON DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Appearing on their own behalf: L. Meise and B. MacAulay Appearing on their own behalf: H. Meise and S. Meise Place of Hearing: Prince George , B.C.

Dates of Hearing: Jan. 4, Apr. 8 , June 6, July 3, 2019, Jan. 20, Mar. 4, 2020 Date of Judgment: June 29, 2020 INTRODUCTION [ 1 ] The claimants, Lyle Meise and Barbara MacAulay, seek $35,000 in damages arising from items stored on the real property of the defendants, Henry Meise and Shannon Anderson. While their initial claim was for $9,557.32, during trial the claimants retrieved the bulk of their belongings and discovered numerous items were missing or damaged, therefore increasing the quantum of their claim.

[ 2 ] The defendants have counterclaimed $3,250 for fees arising from the storage of the claimants’ belongings on the defendants’ property. The defendants also increased the quantum of their counterclaim mid-trial to $6,188 once the claimants retrieved their belongings to reflect the ongoing storage that continued post-claim as well as the costs of cleaning up the remaining items and debris left on their property. BACKGROUND [ 3 ] Lyle Meise and Henry Meise are cousins. Shannon Anderson is Lyle Meise’s sister.

In 2017 the claimants were living in Chilliwack while the defendants resided on a 20 acre rural property at 1145 Isle Pierre Rd., around 45 minutes outside of Prince George (the “Property”). The Property is owned or leased by Henry Meise. Ms. Anderson’s and Lyle Meise’s other sister, Simone Meise, was also living on the Property at that time with her partner and either paying cash rent and/or providing labour in lieu of rent. [ 4 ] In early 2017 the claimants were forced to move out from the place they were staying in Chilliwack. Lyle Meise asked his sister if he could move on to the Property.

The defendants agreed on the basis they would all work together to develop it. The parties initially discussed an arrangement whereby the claimants would “buy in” to the Property and build a house there. At first it was contemplated the defendants, claimants and Simone Meise would all contribute 1/3 towards the $80,000 cost of the Property. However, the relationship between Henry and Simone Meise broke down.

She moved out in the late spring of 2017 and discussions between the parties turned to a 50% shared ($40,000) contribution to the Property. [ 5 ] The claimants brought all of their belongings from Chilliwack to the Property over the course of several trips using utility and flat deck trailers, between December 2016 and May 2017.

When they first arrived the claimants purchased a $2,500 snowblower which they say was purchased at the behest of the defendants as a “down payment” towards the buy-in. [ 6 ] Henry Meise says that he merely asked Lyle Meise to look at the snow blower at Canadian Tire to potentially purchase on the defendants behalf because Lyle Meise had a Canadian Tire Card. It was not intended to be part of a buy-in. According to Henry Meise, they were just talking about it and Lyle Meise purchased the snowblower without confirming with defendants they wanted it.

Henry Meise says he nonetheless reimbursed the claimants for his share of the snowblower as relief against storage fees in early 2017 and it was not part of a “buy-in.” Lyle Meise took the snowblower when he moved out and it is not with the defendants. [ 7 ] The reality is no “buy-in” was ever negotiated or reduced to a written agreement as required by s. 59 of the Law and Equity Act.

While much evidence was adduced about the snowblower, the nature of the snowblower as a down payment or otherwise is not relevant to the issues I must ultimately decide. [ 8 ] Lyle Meise says during these first few months of 2017, he brought lumber and shelving to the Property, some of which the defendants used. He also asserts he provided around 100 hours of labour to improve the Property. Receipts adduced in evidence show that between January and May 2017, the claimants paid nominal amounts to the defendants in consideration of storing the items they were slowly moving up from Chilliwack.

In January they paid $100, nothing in February, $100 in March, and $60 in April. Receipts were provided by the defendants which say “storage”. In some months when rent was not paid the defendants say they applied it to their snowblower reimbursement payment. [ 9 ] There was not enough existing storage on the Property for all of the claimants’ belongings so Lyle Meise built a 12x16 storage shed to shelter a great quantity of his household items. The quality of this shed is at issue.

Henry Meise suggests the homemade shed was not built properly, it did not have a peaked or tin roof to guard against snow and the roof leaked. He says used materials were used to build it and it was not constructed to guard against rodents. [ 10 ] Lyle Meise also erected a “car tent” which is a large structure of moveable poles upon which a tarp is hung, under which he stored many of his tools and clothing on bare ground.

Many items were left outside in the yard, some were under a makeshift tarp structure, and others were stored in a travel trailer the claimants used as their residence. [ 11 ] In May 2017 the claimants completed their relocation to the Property. Discussions about the “buy-in” stalled as the parties could not agree to terms and Simone Meise did not have the funds to contribute to a three-way split. The parties agreed that as of June 1, the claimants would pay $500 per month rent for five acres of land, for which they could park their travel trailer, store their items, receive water, hydro and septic hook-ups.

The claimants lived in the 24 foot travel trailer. [ 12 ] The claimants did not pay any rent in July and August 2017. Lyle Meise says it was because he was demanding a contract from the defendants and they failed to present one. Upon being presented with a “chalkboard contract” in September, the claimants paid $1,250 rent for September and the prior months. [ 13 ] Lyle Meise says they discussed the buy-in for $40,000, but discussions ended in a heated argument. Lyle Meise asserted that he was owed credit towards the buy-in for Henry Meise’s use of Lyle Meise’s tools and labour.

Henry Meise believed his use of the tools was minimal and most of the work Lyle Meise performed was to clear his own designated parcel of acreage he was living on. [ 14 ] On September 1, 2017, Henry Meise presented the claimants with a Contract backdated to July 1, 2017 (the “Contract”). Lyle Meise refused to sign it, saying he would have to consult his lawyer, which he never did. He did not propose a counter-offer contract and at trial maintained he was never bound by that agreement. Ms.

MacAulay signed it on her sole behalf on September 27, 2017, as did Henry Meise. [ 15 ] Lyle Meise suggested the Contract was not binding on Ms. MacAulay because she had signed it out of “duress.” I find there is no validity to that claim. Ms. MacAulay admitted the “duress” she felt is the kind she always feels when she is forced to sign papers, and she felt pressured because if she did not sign it, she would have to move. The fact that another party will not provide land or service without a written agreement does not rise to “duress” in law.

[ 16 ] The Contract provided, among other things: a) “yard rent” was $500 a month and due on the 1 st of each month. This included power for a 15 amp cord and one designated parking spot;

b) A $50 late fee was payable for late rent;

c) The term was one year;

d) If 3 rent payments were missed, the contract was “null and void” and “all belongings and effects will be considered abandoned”;

e) All tenant belongings were to be kept in their workshop and roped off area, tidy and not a fire hazard;

f) If the rent was current and the tenant chose to vacate the property, a $200 storage lease “will be drawn up and signed by the parties;” and

g) The tenants were to give 3 months’ notice of any intention to move. [ 17 ] By that time the relationship between Henry and Lyle Meise was deteriorating. Ms. MacAulay was working in Prince George and the claimants began to spend more time living with Lyle Meise’s sister, Simone, in town. [ 18 ] In October 2017, the defendants had agreed to extend the time for paying the October rent to October 7, 2017, to accommodate the claimants’ trip out of town. On October 7, the claimants went to provide the rent cheque but the defendants were not home.

The defendants sent a text explaining they had to go to Vanderhoof due to an emergency and instructed the claimants to leave the rent money in a van parked on the Property. The claimants refused to leave the rent money as instructed and returned to Prince George. Lyle Meise says he refused to leave the rent because it was “not secure.” [ 19 ] The parties met at Walmart on October 9, 2017, to exchange rent. Henry Meise demanded payment of $50 for late rent, on the basis the claimants did not leave the rent money as instructed on October 7.

Lyle Meise, in turn, demanded payment of $250 for a “wasted trip” to the Property to pay rent in circumstances where the defendants were not at home to receive it. He offered to deduct the $50 late fee from his $250 “wasted trip” fee. [ 20 ] Henry and Lyle Meise got into a heated argument. Henry Meise told Lyle Meise that Ms.

MacAulay was welcome to remain on the Property, but he was not. [ 21 ] On October 12, 2017, Lyle Meise filed an application with the Residential Tenancy Board (“RTB”) for dispute resolution arising from the verbal eviction. [ 22 ] Henry Meise gave Lyle Meise a written eviction notice October 18, 2017, insisting he vacate the Property by November 1, 2017. [ 23 ] On October 19, 2017, Lyle Meise attended the Property with a police officer and served Henry Meise with the dispute notice from the RTB challenging his eviction.

I note at this time Lyle Meise had refused to enter into any form of rental agreement with the defendants. Lyle Meise believed as long as proceedings were pending at the RTB he could not be removed from the Property. [ 24 ] Lyle Meise testified that after serving the defendants with the dispute notice, the defendants retaliated by taking the claimants’ TV, beds and mattresses the defendants were storing in their residence and “threw them out in the snow.” The claimants seek the cost of replacing those items. [ 25 ] In December 2017, Henry’s nephew Caesey moved on to the Property as Henry Meise’s tenant.

There was considerable conflict between Caesey and Lyle Meise. [ 26 ] As of December 2017, the claimants had a very large quantity of items stored in various places around the Property in sheds, in the yard, under tarps, and in the travel trailer, including: A GMC Envoy; A Toyota pick-up; A travel trailer full of personal items and food; Household items (garbage bins, floodlights, heaters, framed prints, ironing board, folding table, rocking chair, small TV’s, ceiling fan, kitchen supplies, linens, etc.); Bathroom items (toiletry devices, make-up); Jewellery and jewellery boxes; Clothing and handbags; Horse tack supplies; Furnishings for an entire house, including beds, dressers, hutches, and tables;

Shelving, lumber and building materials, including cabinets, doors and windows; Hand and power tools, including a welder, air compressor and table saw; Auto parts, tires, wheels, multiple winches and chain pulleys; Three utility trailers; Garden supplies and lawn furniture; 2 riding lawnmowers, 4 weedeaters, hedge trimmers and landscape tools; Old stoves and barbeques; Logging tools; Camping equipment; Large propane tanks; BBQ’s, freezers, washing machine and household appliances; Collectible comic books, toy cars, Avon and other glassware; Rifles and crossbows; Personal photos; Various electronics including VCR’s, DVD recorders, a security system and cameras, video recorders, record players, tape decks, 2 way radios, video game consoles and games, VHS tapes and DVD’s; and Christmas decorations (collectively the “Belongings”). [ 27 ] It is clear Lyle Meise considered all of the Belongings dear and to have considerable value.

He collectively valued the items at $150,000. By contrast, Henry Meise described the items as “junk”, consisting of cheap used goods which Lyle Meise had acquired for free or at low cost with hopes of fixing up or rendering operable. In the photos many of the items captured appear older or well used. [ 28 ] On January 3, 2018, the RTB delivered its decision in connection with Lyle Meise’s dispute notice. The Board found Lyle Meise had given inconsistent evidence about the alleged tenancy and concluded there was no enforceable tenancy agreement between the parties.

The RTB accordingly declined jurisdiction. [ 29 ] Lyle Meise complains Henry Meise has taken an inconsistent position at this trial from the one he took at the RTB about whether or not there was a rental agreement. Lyle Meise says Henry Meise told the RTB it was not a landlord/tenant situation, just “family helping family,” but at this trial is attempting to assert a Contract between them. I reviewed the extensive written statements Henry Meise gave to the RTB and find they are generally consistent with the facts he has stated at this trial.

Ultimately, the RTB considered those facts and found the arrangement between the parties too ambiguous to comprise an enforceable tenancy agreement. I cannot collaterally attack that finding. [ 30 ] The claimants were late paying rent in January. On January 24, 2018, the defendants prepared an eviction notice seeking Ms. MacAulay’s vacancy by March 1, 2018. On February 3, 2018, Ms. MacAulay came out to pay rent and the defendants served her with the eviction notice, but changed the vacancy date to March 10, 2018, to give her more time to move.

The notice states “any belongings left behind after [March 10, 2018] will belong to [Henry Meise]” and that he would “dispose of them at his discretion.” [ 31 ] Ms. MacAulay told the defendants she would give the notice to Lyle Meise, as most of the Belongings were his, and provided his phone number. There was no real discussion about how the Belongings would be removed. [ 32 ] On February 1, 2018, Lyle Meise sent the defendants a “Manufactured Home Site Tenancy Agreement” with a diagram purporting to divide the Property into a trailer park and assigning the claimants a lot in this park.

The defendants did not sign the agreement. [ 33 ] On February 22, 2018, Lyle Meise commenced a new action in the RTB seeking an order forcing the Manufactured Home Site Tenancy Agreement upon the defendants. Lyle Meise testified he believed as long as he had a pending application before the RTB, the defendants could not evict him.

Lyle Meise says he stopped paying rent after the RTB’s decision of January 3, 2018, because the Board found there was no tenancy relationship and it was “family helping family.” Notwithstanding he was no longer paying any form of rent, Lyle Meise continued to seek to live on the Property and store his Belongings there. [ 34 ] On March 2, 2018, the claimants attended the Property, unannounced, with an RCMP officer.

In direct examination Lyle Meise said the attendance was to remove some his personal belongings, but admitted in cross-examination that in fact he attended to serve the defendants with the second RTB application. Lyle Meise stated he would not pay any rent for March and a heated argument ensued between Shannon Anderson and Lyle Meise. Lyle Meise proceeded to get a laptop and couple of personal items from the travel trailer. He did not discuss a plan to remove the rest of the Belongings. There was no further communication from the defendants until April 2018.

[ 35 ] On April 12, 2018, Lyle Meise applied for a Family Law Act (“ FLA ”) restraining order against the defendants, further aggravating their relationship. He sought an order the defendants could not communicate with him “except to exchange rent” and could not go near his Belongings. I find Lyle Meise made the application, in part, in hope that he would be able to continue to access the Property under the authority of the protection order without interference from the defendants. [ 36 ] On May 8, 2018, Ms.

MacAulay wrote to the defendants seeking access to the Property to collect select personal possessions like the Envoy, furniture, clothing, and jewellery. She stated Lyle Meise was not moving into her new residence with her and that “anything regarding Lyle’s stuff, contact him, not me.” She provided his phone number. The defendants wrote back stating Ms. MacAulay was at liberty to come and collect her things provided she came before May 15 as they intended to be away. Ms.

MacAulay did not attend before May 15, 2018. [ 37 ] Lyle Meise’s second RTB application to force a manufactured home tenancy agreement upon the defendants was heard May 8, 2018. The RTB again found there was no legal tenancy agreement between the parties and dismissed the application as res judicata , without leave for Lyle Meise to re-apply. [ 38 ] At the time of the RTB hearing both claimants were spending most of their time in Prince George. They had stopped paying rent by March and did not return to live on the Property.

I accept Shannon Anderson’s evidence that during the May 8, 2018 conference call with the RTB adjudicator, Henry Meise told Lyle Meise he wanted the Belongings removed. Lyle Meise responded by demanding the defendants enter into a rental agreement. [ 39 ] The claimants showed up at the Property, unannounced on June 2, 2018. They had not made any arrangements in advance to attend on that date. Lyle Meise says he intended to collect some personal items from the travel trailer and the GMC Envoy, for which he had purchased one months’ insurance.

The only other vehicle brought capable of removing the Belongings was a mini-van. [ 40 ] The claimants brought Lyle Meise’s sister, Simone, whom had a spectacular falling out with the defendants the previous summer resulting in proceedings at the Labour Relations Board. The claimants knew Lyle Meise and Simone Meise were not welcome on the Property due to the high level of acrimony, yet both attended with Ms. MacAulay insisting on access. [ 41 ] Henry Meise’s tenant, Caesey, was also home. Henry Meise said Lyle Meise and Simone could not come on his Property. A fight broke out. Punches were thrown.

Police were called. [ 42 ] Lyle Meise says Henry Meise told him he would have to pay $1,500 in storage fees before he could collect his items. Henry Meise agrees he likely said something like that, but it was only after they had already engaged in a fist fight. [ 43 ] Lyle Meise gave inconsistent evidence about whether or not Ms. MacAulay was given permission to access the Property on June 2, 2018.

Sometimes he said she was allowed to retrieve some items, other times he said Henry Meise refused everyone access. [ 44 ] Lyle Meise says he wanted to take the GMC Envoy at that time but it had a flat tire and the defendants would not let him on the Property to fix it. He says they did not intend to move the travel trailer at that time because they had “nothing to tow it with” and it was uninsured.

Lyle Meise tried to attribute fault for the lack of insurance to the defendants by complaining they would not let him access to the Property to get papers from the trailer necessary to obtain insurance, however, there is no evidence he or Ms. MacAulay had made any efforts prior to June 2, 2018 to access the travel trailer for that purpose or that they were incapable of obtaining insurance without papers. [ 45 ] I find the claimants had no intention of moving the travel trailer on June 2, which is why they did not obtain insurance for it.

Lyle Meise suggested he “could have made arrangements” to put the travel trailer somewhere, but I find at the time he attended on June 2 he had not secured any location to park that travel trailer. The claimants did not bring any of the necessary movers or moving vehicles necessary to remove all of their Belongings from the Property. [ 46 ] On June 3, 2018, Lyle Meise filed an application to re-set a court date in respect of his application for an FLA protection order.

A hearing date was set for June 21, 2018. [ 47 ] On June 4, 2018, Lyle Meise gave Henry Meise an “invoice” purporting to claim $27,680 for “labour” and $9,608 for “tool rentals” during the time Lyle Meise resided on the Property. This further aggravated the relationship between the parties. [ 48 ] On June 6, 2018, Lyle Meise attended the Property with an RCMP officer to serve Henry Meise with the FLA protection order application.

An argument broke out and Henry Meise threw the documents on the ground. [ 49 ] On June 15, 2018, Henry Meise put an ad in the Prince George Citizen giving notice to the claimants of an intention to dispose of any abandoned items on the Property in 30 days. While the evidence discloses the defendants were in regular contact with Ms. MacAulay at that time, Lyle Meise continued to identify his address, including on the FLA court pleadings and RTB applications, as being “#2-1145 Isle Pierre Rd.” There was no such civic address, and Mr.

Meise had been evicted from the premises months earlier. [ 50 ] On June 21, 2018, the parties attended court to deal with Lyle Meise’s protection order application. The Court declined jurisdiction as the relationship between the parties did not fall under the definition of “family member” as contemplated in s. 183 of the Family Law Act . [ 51 ] There is no evidence the claimants took any further steps or made any further request to remove their Belongings from the Property after the June 2 attendance.

The claimants filed their claim on July 4, 2018, seeking $9,500 for the costs of purchasing “replacement items,” replacing the TV and bedding, car rental and costs of driving to the Property. The claimants also sought an order compelling the defendants to deliver all of the claimants’ Belongings to them at the defendants’ expense. [ 52 ] After the Notice of Claim was filed and served, Henry Meise admits he disposed of the claimants’ travel trailer. He testified the trailer was left by the claimants full of food which began to rot, causing distasteful odours and attracting mice which started to infest to

their own home. He gave it away for free to Shannon Anderson’s son who intended to dismantle and use it as a flat deck trailer. [ 53 ] The parties attended a settlement conference on September 12, 2018. While in attendance at the Courthouse the defendants offered to give Ms. MacAulay to October 31, 2018, to remove the Belongings from the Property. The claimants declined with no counter-proposal. [ 54 ] In the course of these proceedings I made multiple orders, by consent, allowing the claimants to access the Property to retrieve the Belongings.

I explained to the parties that as a Provincial Court Judge I did not have jurisdiction over real property and could not force the defendants to grant access to the Property. The defendants nonetheless consented on each occasion to grant access provided Lyle Meise did not attend on the Property. I did not find their position unreasonable given the history of violent arguments between Lyle Meise and the defendants. The defendants did not object to Lyle Meise being nearby to advise Ms. MacAulay, nor to Ms.

MacAulay bringing as many third parties as she needed to help her move the Belongings. [ 55 ] Each of the access orders permitted Ms. MacAulay and any third party helpers, other than Lyle Meise, to attend the Property to remove the Belongings. The first order was made on January 4, 2019. It provided Ms. MacAulay was to give the defendants one day’s notice of her intention to access the Property, and specified that all of the Belongings had to be removed no later than May 31, 2019. [ 56 ] On April 8, 2019, the claimants brought an application for the costs of re-keying the 1998 GMC Envoy.

They alleged the keys for that vehicle were “lost” when the defendants gave away the travel trailer. At that court appearance the claimants were reminded of the Property access order and May 31 deadline to remove their Belongings. They complained it was “hard to get help” to accomplish the move. I inferred the claimants were attempting to arrange free labour and resources to move their Belongings. [ 57 ] Ms. Anderson asked that Ms. MacAulay at least call ahead before she came out. In order to short-cut the process I gave a fixed time of Friday, April 12, 2019 at noon, for Ms.

MacAulay to access the Property in order to tow the GMC Envoy. [ 58 ] On April 12, 2019, the claimants brought an emergency application for access and a financial penalty. They complained Ms. MacAulay went to the Property to get the GMC Envoy and was denied access. [ 59 ] On April 24, 2019, the parties appeared in court to address the issue of denied access on April 12, 2019. The defendants explained they were under the mistaken belief Ms. MacAulay was still to call ahead and give one days’ notice of her intention to access the Property, as contemplated in the January 4, 2019 order.

I explained that was only with respect to the removal of the Belongings, not the GMC Envoy, for which I had already made an access order for April 12. The defendants apologized about the misunderstanding and an order was made by consent for Ms. MacAulay and her assistants to access the Property on May 6, 2019, to get Belongings. [ 60 ] On May 21, 2019, I inquired about the status of collecting the Belongings. The claimants complained they had gone to get the Envoy but their access was “blocked” by the defendants’ vehicles. Photos were adduced in evidence, from which I conclude access was not blocked.

The Envoy could have been pulled around the other obstacles parked nearby. Ms. MacAulay eventually admitted access to the other Belongings was not really “blocked”, but stated due to her health she was not able to walk around and investigate the location and condition of the Belongings, let alone retrieve them.

The claimants acknowledged that as of that date, 10 days before the expiry of the access order, they had made no arrangements for movers, trailers, or other necessary resources to effect a comprehensive move of the Belongings. [ 61 ] The sole interest the claimants expressed in retrieving any Belongings from the date the access order was made on January 4, 2019 to the deadline of May 31, 2019, was collecting the GMC Envoy.

That vehicle was incapable of being driven out of the yard given its mechanical condition. [ 62 ] At that same court appearance on May 21, 2019, I made a further access order by consent stating Ms. MacAulay could attend the Property on May 22, 2019, between 3 pm and 8 pm to collect the Envoy and any other Belongings. I also ordered that access to any of the items be unobstructed. Ms. MacAulay went out with a tow truck on May 22 and was able to remove it. [ 63 ] The claimants allege the defendants “drove the Envoy over boulders” when they moved it, thereby causing damage.

No expert evidence was adduced to support that claim. The defendants say they only rolled it down a small hill to its final resting place to get it out of the way so they could better access their Property. Implicit in their evidence is they did not have the means or ability to start it. [ 64 ] The claimants did not attempt to remove the rest of the Belongings on May 22, 2019, or otherwise before the May 31, 2019 deadline.

The claimants said they did try to arrange to move some things with “tow trucks” on May 24, 2019, but when they called the defendants to give notice of their intention to access the Property the defendants did not answer the phone. I note that call would have been six days before the deadline. [ 65 ] On June 6, 2019, I made another access order by consent allowing Ms. MacAulay and her assistants to access the Property between 6 am and 10 pm on June 30, 2019, to remove all the claimants’ Belongings. The claimants came with two vans and a pickup two hours late.

The claimants complained that some of the volunteers who were supposed to help did not show up. As such, only a fraction of their Belongings were moved. Again, I find the claimants were trying to move a vast quantity of items with inadequate resources in order to save costs. It was not possible to move all of the Belongings with two vans, a pick up and a handful of volunteers. [ 66 ] On July 2, 2019, I made another access order by consent allowing Ms. MacAulay and her assistants to access the Property from 8 am to 10 pm on July 17 and 18 to remove all of the claimants’ remaining Belongings.

At that time I made it clear there would be no further access orders and anything left on the Property after that date was deemed abandoned. I explained it was their responsibility to hire movers and moving trucks as necessary to make that happen. [ 67 ] The claimants did attend on the July dates and moved a lot of their items, but not all of them. Lyle Meise complained Henry Meise was “distracting” his movers by talking to them.

I accept Henry Meise’s evidence that despite being granted access commencing at 8 am, the claimants did not show up until 10:00 am to 10:30 am, and had an insufficient number of people with them to remove the Belongings.

[ 68 ] Upon retrieving the Belongings, the claimants discovered many of the Belongings were damaged or destroyed. They value their loss at around $50,000. A lot of items were left behind on the Property. The defendants counterclaim for the costs of storage and clean- up. Issues [ 69 ] The issues I must decide are:

a) What was the legal relationship between the defendants and the claimants with respect to the Belongings?

b) What was the duty of care owed from the defendants to the claimants with respect to the belongings?

c) Did the defendants breach their duty of care owed to the claimants with respect to the Belongings? a. Did they breach their duty of care in particular with respect to: i. The beds; ii. The vehicles; iii. The travel trailer and its contents; iv. The Belongings stored in sheds and elsewhere on the Property?

d) If the defendants breached any duty of care, what is their liability for damages? a. What is the value of the Belongings? b. Did the defendants fail to mitigate their loss?

e) Are the defendants liable to the claimants for the cost of replacement items?

f) Are the defendants liable to the claimants for the cost of rental cars or gas for “wasted trips”?

g) Are the claimants liable to the defendants for: a. The costs of storage? b. The costs of trying to seize the GMC Envoy? c. The costs of proceedings in this Court and the Residential Tenancy Branch? d. The costs of clean-up? Relationship between the parties [ 70 ] The burden of proof in a civil case rests with a claimant to prove their case on the standard of a balance of probabilities. I must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

The claimants must prove the existence of the facts they rely upon to succeed in their claim against the defendants. The defendants bear the burden of proving their counterclaim. Whether or not I am satisfied that a fact has been proven must depend upon the totality of the circumstances. [ 71 ] The RTB twice found this was not a tenancy arrangement governed by the Manufactured Home Park Tenancy Act , and I cannot collaterally attack that finding.

I must look to the common law of bailment and contract to determine these issues. [ 72 ] In all of the circumstances I am satisfied the claimants did not “abandon” the Belongings. While the claimants were not paying to store the Belongings, the evidence suggests they did not intend to abandon their interest in them. Notwithstanding Lyle Meise was repeatedly unsuccessful at the RTB, his applications and filing of this lawsuit put the defendants on notice the claimants still wanted their Belongings.

As such, the defendants were not in the position of someone who comes into possession of abandoned property in which no one else has a proprietary interest. Rather, they are better characterized as someone who comes into possession of property which belongs to another. [ 73 ] A person who possesses or stores items for another is often referred to as a “bailee.” A Bailee has a duty of care towards the items they are storing for someone else, but those duties are different for bailees who are paid (“bailees for reward”), and bailees who are not.

Parties who agree to store someone’s goods but are not paid are “gratuitous bailees,” while parties who have someone else’s goods on their property against their will are “involuntary bailees.” [ 74 ] In Martin v. Stephens , [2002] B.C.J. No. 1230 (BCPC) , the claimant had asked his friend, the defendant, if he could keep some boxes in the defendant’s rental loft and park a car in his driveway as a favour. The defendant agreed. The claimant then left the country for a prolonged period and did not retrieve his boxes or car, leaving the defendant stuck with the items.

The defendant’s rental property was sold and the property owner finally disposed of the boxes and car. The claimant sued for the loss of the items. The court found that once the claimant left without making arrangements for the boxes and car, the defendant became an “involuntary bailee” and that the bailment could not be enforced against him or the property owner.

[ 75 ] I find the defendants were not bailees for reward. The $500 per month payments contemplated in the Contract were to compensate the defendants for the claimants’ active occupation of the Property, which included use of hydro, septic, and parking. The defendants and Ms. MacAulay expressly distinguished between amounts payable for occupying the Property ($500) and amounts payable for simply storing items on the Property ($200).

The defendants may have been bailees for reward had the claimants paid the $200 month storage fee, but they did not. [ 76 ] Lyle Meise testified that after the RTB decision in the January 2018 finding, there was no tenancy agreement, it was his position no rent was payable, so he did not pay any. Ms. MacAulay paid $500 rent in February and paid no more.

There was no agreement to pay storage costs if she moved out, only an “agreement to agree.” There was never any agreement between Lyle Meise and the defendants for occupation or storage, as he did not sign the Contract or any other. [ 77 ] The claimants have never paid, offered to pay, or acknowledged any obligation to pay storage fees to the defendants. Lyle Meise was asked repeatedly in cross-examination what his expectations were with respect to his Belongings once Ms. MacAulay left and no one was paying storage costs.

I found his answers to be evasive and non-responsive. [ 78 ] Further, the eviction notice provided to Ms. MacAulay in February 2018, states “your belongings must be removed off my property by [March 10, 2018]” and “any belongings that are left behind after [March 10, 2018] will belong to me and I will dispose of them at my discretion.” I find that as of February 2018, the defendants asserted they were no longer willing to be bailees of the Belongings, for reward or otherwise.

This was re-affirmed at the May 2018 RTB hearing, where Henry Meise told Lyle Meise to remove the Belongings, and again in the June 15, 2018 newspaper notice. [ 79 ] I find the defendants did not wish to have the Belongings kept on their Property after March 2018 and at that point became gratuitous involuntary bailees. Duty of Care [ 80 ] The characterization of the bailment as gratuitous or for reward is extremely important. At common law the standard of care imposed upon a bailee, as well as the location of the onus of proof, depends upon the proper characterization of the relationship.

Where the bailment is involuntary or gratuitous the bailee generally has been held liable for only reckless or intentional damage and the burden of proof rests with the bailor. Where the bailment is for reward, the bailee is liable for negligence or the failure to exercise due care and diligence. [ 81 ] In Duet Marketing Corp. v. Spetifore , [1986] B.C.J. No. 3131 (BCSC) , the plaintiff had left large tanks and brewery supplies in the defendants’ building which the defendant owners wanted removed so the building could be converted to a warehouse.

The plaintiff expressed its desire to retrieve the tanks and equipment but took no action for many months to remove it. The defendant finally cut out the tanks and sold them and the equipment. Madam Justice Southin found that the defendants had acted unreasonably in selling the plaintiff’s property. However, she confirmed it would have been reasonable for the defendant to have simply removed all the tanks equipment and left it outside on a corner of their property without doing anything more to protect or preserve it. [ 82 ] The case at bar is similar to that in Booy v. Genstar Development Co ., [1998] B.C.J.

No. 1074 (BCSC) . In that case the plaintiff tenant leased farming property from the defendant landlord. The relationship broke down and the landlord gave six months’ notice he would not renew the tenant’s lease and the tenant had to leave on the end date. The tenant contested his requirement to leave the property and obtained a couple of extra months to move, but made no efforts in nine months to find other farm lands or make arrangements for his livestock and hay. [ 83 ] The plaintiff left everything on the farm after he moved off.

The defendant landlord arranged for bailiffs to seize all the livestock and goods and remove them from the property. The spoiled hay was burned. The livestock and goods were sold and the plaintiff sued for the loss of his property. In assessing the duty of care of an involuntary bailee, the court said at par. 30: [30] The facts in this case are clear that Mr. Booy, because of his unfortunate situation in losing his lease, elected to abandon his property on the site. He had time to remove it and did not do so.

Even if the goods had not been abandoned the standard as an involuntary bailee would be a low one requiring no more than due care and diligence for the goods upon which it took possession. The duty as a gratuitous bailee is only to refrain from intentional and possibly reckless damage and this standard falls below that of gross negligence . See Landry v. Grunwald , [1986] B.C.J. No. 1889 (S.C.) , Tech-North Consulting Group Inc. v. B.C., [1997] B.C.J.

No. 1148 (S.C.) . (emphasis mine) [ 84 ] Had the claimants paid the $200 per month the defendants proposed, the defendants would have had a duty of care to protect the Belongings and been answerable to the claimants for any loss or damage. As it stood, the claimants paid nothing and the defendants were involuntary bailees. [ 85 ] I find the duty of care owed from the defendants to the claimants, as involuntary bailees, was to refrain from “intentional and reckless damage” to the items. They had no duty to take any positive steps to preserve or protect the items against theft, vandalism, weather or rodent damage.

The defendants were entitled in the circumstances to leave the Belongings as the claimants had left them and do nothing further. Breach of Duty of Care [ 86 ] I accept Shannon Anderson’s evidence that had the claimants agreed to a storage contract and paid $200 per month, the defendants would have taken more steps to secure and protect the Belongings. As they were not, she took some rudimentary measures to fix and adjust tarps originally set up by the claimants over the Belongings, but nothing more. I find this consistent with the limited duty of care owed by an involuntary bailee.

[ 87 ] As involuntary bailees the defendants were not required to identify and make an inventory of the claimants’ Belongings. They were not responsible for ensuring the claimants’ Belongings were protected from theft or vandalism by third parties or detect if such theft or vandalism occurred.

As the defendants were involuntary bailees, the burden of proof lies on the claimants to show the defendants intentionally or recklessly damaged or disposed of their Belongings. [ 88 ] Other than the travel trailer, as discussed below, there is no evidence the defendants intentionally or recklessly damaged or disposed of the Belongings. The Belongings were stored in various places around a large property and the defendants, as involuntary bailees, did not know what was there or what was happening with them. Things were unsecured in makeshift sheds and tarps.

Other people had access to the Property and the defendants were often away. Caesey, who disliked Lyle Meise, lived on the Property and his friends often came over. There is evidence drug users were using the same shed where the claimants’ computers and printers were being stored.

I accept the defendants’ evidence that they were unable to secure their own belongings against theft, let alone the claimants’. [ 89 ] As set out in Duet Marketing , as involuntary bailees it was not a breach of the defendants’ duty of care to leave the Belongings on the Property as the claimants’ left them and do nothing more, notwithstanding the Belongings may be exposed to theft, vandalism, or weather damage.

It was not their responsibility to fix broken sheds or tarp structures, adjust tarps, or install security to protect the Belongings. [ 90 ] The claimants complain the defendants moved the GMC Envoy and some trailers from the places they had left them on the Property. A bailee does not need to leave goods where they are ( Duet Marketing ). It was open to the defendants to move items like the vehicles, trailers and other large Belongings to other locations on the Property as necessary to allow the defendants to use and enjoy their Property.

The claimants failed to adduce expert evidence to prove their claim the defendants caused mechanical damage to the Envoy. Refusal of Access [ 91 ] The claimants allege the defendants breached their duty of care by refusing them access to retrieve the Belongings, thereby causing the Belongings to become damaged with the passage of time as they remained unsecured on the Property. [ 92 ] Lyle Meise often testified about how he paid rent and complained about being evicted, but by September 2017, he was not a tenant.

He rejected the tenancy agreement presented to him by the defendants, and by the fall of 2017, the relationship between Lyle Meise and the defendants was so hostile an arrangement whereby they shared and occupied the same property was unfeasible. [ 93 ] As Lyle Meise was not a tenant he had no claim of right to access or occupy any part of the Property. His presence on the Property was limited to being a guest of Ms. MacAulay’s. To access the area Ms. MacAulay occupied, Lyle Meise had to traverse the defendants’ driveway and property.

The defendants were within their rights to refuse Lyle Meise access to their parts of the Property. [ 94 ] That being said, the defendants cannot complain of being involuntary bailees forced to store the claimants’ Belongings unwillingly if, at the same time, they actively prevented the claimants from removing them. [ 95 ] The claimants say the reason they did not remove their Belongings from the Property was because the defendants were denying them access.

Conversely, the defendants say they wanted all the Belongings, which Henry Meise characterized as “mostly junk”, off of their Property. [ 96 ] The defendants complain the claimants never made arrangements with them to attend and remove all the Belongings. Rather, the claimants showed up a couple of times unannounced to collect individual items they wanted without seeking advance permission to enter the Property.

In that regard, the claimants treated the defendants’ property like a free storage facility where they could come and go as they pleased, picking items they wanted and leaving others behind as it suited them. [ 97 ] Lyle Meise was told on October 9, 2017, that he was no longer welcome on the Property. It was reaffirmed in a written notice of October 18, 2017. Despite that notice, Lyle Meise took no steps to arrange to remove his Belongings. Rather, he hoped to stall the process by commencing proceedings at the RTB.

After his application was refused January 4, 2018, he still took no steps to remove his Belongings, rather, he filed another RTB application hoping to forestall his removal. [ 98 ] Ms. MacAulay was given notice in early February of her eviction and given over one month to remove the Belongings. At that point both she and Mr. Meise were primarily living in town and not residing on the Property.

Despite having over one months’ notice, neither claimant took any steps to remove the Belongings, just the few items they wanted for their place in town. [ 99 ] In cross examination, Lyle Meise admitted he did not make any efforts to remove the claimants’ Belongings after moving off the Property in February 2018. He says that due to the snow the Belongings were inaccessible. I do not accept that explanation. Photos taken in November and December 2017, depict the claimants’ occupation area in winter conditions.

I find the area could have been ploughed or shovelled to improve access, otherwise, many of the Belongings could have been moved by hand to the driveway. [ 100 ] Lyle Meise also complains of being in ill health at that time. There is no evidence, however, that at any time the claimants attempted to hire persons to remove the Belongings who had the means and physical ability to accomplish the task. The claimants admitted that in February 2018, they did not have a place to move the Belongings to as Ms. MacAulay’s place was too small.

There is no evidence they attempted to secure a paid storage facility. [ 101 ] The claimants took no steps to move the Belongings after they were given notice to vacate the Property in February 2018, until they showed up unannounced on March 2, 2018, with an RCMP officer. The purpose of that visit was to serve Henry Meise with new RTB proceedings and collect a few things Lyle Meise wanted from the travel trailer. The next steps they took were on June 2, 2018, when they showed up unannounced demanding access.

Even then they had shown up to take a few things they wanted, like the GMC Envoy and some laptops and bags. They had no intention of or means to move the bulk of the Belongings. [ 102 ] The claimants say that because of the fight that broke out on June 2, 2018, the Court ought to characterize the defendants as

refusing access, and find that the Belongings were ultimately not removed because of the defendants’ obstructive conduct. [ 103 ] The defendants say they never outright refused the claimants’ access to the Property to remove the Belongings. They wanted the claimants to phone ahead and make arrangements to collect their things to ensure the defendants were home and the timing was convenient. They were refusing access to Lyle and Simone Meise, with whom they had an acrimonious relationship, but not Ms. MacAulay or anyone else who was attending on her behalf to remove the Belongings. Ms.

MacAulay’s May 8 letter only sought permission for herself to enter the Property, not Lyle or Simone Meise. The defendants say they refused access on June 2, 2018, because the claimants showed up unannounced when the defendants had company, and Lyle and Simone Meise were trying to force their way on, causing the fight to erupt. [ 104 ] The claimants had stopped paying any form of rent to the defendants as of February 2018. They moved out and left most of their Belongings behind with no compensation to the claimants. There was no storage agreement between the parties.

As such, the claimants had no colour of right to access the Property and treat it like a paid storage facility. To the extent the claimants wanted to access the Property to collect their Belongings, they were obliged to seek the advance permission of the defendants just like anyone wishes to go on to someone else’s land. The defendants were not unreasonably refusing access by not letting the claimants come and go as they pleased without notice. [ 105 ] In Lawes v. Bell , [2010] A.J. No. 596 (ABPC) , the plaintiff sold his property to the defendants, but failed to remove all of his farm equipment before moving.

A bunch of equipment and freezers were still in a shed by the time the property changed hands. The plaintiff paid $1,500 to the defendant purchaser to compensate them on the basis the items would be removed in a month. The plaintiff seller left the items in the shop for six months and paid nothing more. The defendant purchaser advised the plaintiff could only access the shed by appointment. The defendant purchaser also insisted the plaintiff perform come clean-up work he had agreed to complete before removing the items.

The Court concluded the defendants had not made an “unqualified refusal” of access only by insisting the plaintiff make an appointment and finish the clean-up. The Court found the defendant “did not try very hard” to make an appointment and remove his goods. [ 106 ] While Henry Meise did demand $1,500 as a condition of allowing access to remove the Belongings, it was only after he and Lyle Meise had already got in a fight. In any event, the claimants had no means or intention of removing the bulk of Belongings at that June 2, 2018 attendance.

They just wanted to access to remove the few small valuable items they desired and the GMC Envoy. [ 107 ] The defendants perceived much of the Belongings to be junk and an eyesore cluttering up their Property. I accept they wanted it removed and they would have allowed access for that purpose had the claimants made proper arrangements with them. [ 108 ] It was not unreasonable for the defendants to refuse access in circumstances where the claimants were not attending to remove all of the Belongings, but just the few they wanted, leaving the rest behind.

Inherent in the claimants’ actions was a sense of entitlement to keep returning to the Property to take Belongings away piecemeal at their leisure in circumstances where the relationship between the parties had completely broken down. As stated above, the defendants were not running a storage yard. This was their private property and residence.

The claimants had no colour of right to access it only because they had wrongfully left their Belongings on the Property long after they were evicted. [ 109 ] I find that removing all of the claimants’ Belongings from the Property was a large task requiring days of time, multiple large transport vehicles, multiple moving personnel, and clearance for access. Some of the defendants’ own vehicles and possessions had to be moved out of the way to facilitate access.

It was not the kind of undertaking that could be reasonably carried out by showing up unannounced without making appropriate arrangements with the defendant landowners. [ 110 ] Lyle Meise says he made repeated requests to access the Property to collect their Belongings and the defendants refused. However, I do not find him credible on this point. When pressed for details of this alleged notice, Lyle Meise said the “notice” was by way of filing applications in the RTB to fight his eviction, and filing of this Notice of Claim.

I find none of those applications were akin to a request to attend the Property at a specified date and time to remove the Belongings. [ 111 ] Lyle Meise also said he made requests through texts and conversations, but could not provide details of those discussions. I accept the defendants’ evidence that there was never any advance request to attend the Property to collect the Belongings after the claimants’ left, other than Ms.

MacAulay’s letter of May 8, 2017, which the defendants agreed to. [ 112 ] In my view in order to establish the claimants were precluded from removing the Belongings due to denial of access, it was incumbent on the claimants to take some formal steps, such as written requests for access, which were unreasonably refused by the defendants.

Even when bringing the court action the claimants did not seek access to the Property to collect the Belongings, rather, they sought an order that the defendants collect and deliver all the Belongings to Lyle Meise at his convenience. [ 113 ] There is no evidence the claimants had any intention to effect a large scale removal of the Belongings, or had taken steps to secure the necessary vehicles, personnel and storage facilities to make that happen. There is no evidence the claimants ever communicated verbally or in writing with the defendants for that purpose, other than Ms.

MacAulay’s note of May 8, 2017, requesting to move some of her things. I find the claimants were not prevented from removing the Belongings due to the defendants’ refusal of access. Rather, I find they did not want to remove all the Belongings because they did not wish to expend the considerable cost associated with such an endeavour. They preferred to leave the Belongings on the defendants’ land for free. To the extent the claimants wanted the Belongings back, they wanted the defendants to arrange and pay for their delivery.

Beds and TV [ 114 ] The claimants were living in a travel trailer on the Property in circumstances where they had insufficient dry secure storage for many of their belongings. It was agreed they would keep a queen sized bed and mattress and bunk beds and mattresses in the guest rooms of the defendants’ residence. This arrangement benefitted both parties as that furniture was kept in a secure place and the defendants’ grandchildren could use it when they visited. The claimants also kept a TV in the residence.

[ 115 ] The relationship between Lyle Meise and the defendants started to break down significantly in October 2017. There was an argument at the Walmart which ended with Henry Meise demanding Lyle Meise vacate the Property. [ 116 ] Henry Meise heard that Lyle Meise intended to start charging the defendants “rent” for the beds and TV being kept in the defendants’ residence.

At the same time, his nephew Caesey was going to be moving into the residence and the defendants needed the furniture moved out to create space. [ 117 ] Henry Meise testified that two weeks prior to putting the beds outside he told Lyle Meise that if he was intending to charge rent for the furniture, then to remove it from Henry Meise’s residence.

Shannon Anderson testified that during the argument at Walmart on October 9, 2017, she told the claimants a tenant was moving in and they needed to take back the bunk beds. [ 118 ] Lyle Meise says the defendants removed the furniture from the residence in retaliation for his testifying against Henry Meise in Simone Meise’s unsuccessful Labour Relations Board hearing. However, according to Lyle Meise that hearing took place in November, which I find would have been after they had been told to remove the furniture.

Lyle Meise also testified the furniture was removed in retaliation for filing a dispute notice with the RTB, which was served on the defendants October 28, 2019. Again, I find that date was after the defendants had already asked the claimants to take the beds out of the residence. [ 119 ] Henry Meise testified Lyle Meise did not remove the furniture when asked so he and his nephew took it apart and put it outside. He says the claimants saw the items outside and did nothing about it. Shannon Anderson testified she texted Ms. MacAulay as soon as the furniture was put outside.

She also confirmed the claimants saw the furniture there, but did nothing. I note at this time Ms. MacAulay was still living full time on the Property and was in a position to see the beds. While Lyle Meise had been ordered off the Property, his evidence as to his personal observations at the time suggests he still continued to reside there under the apparent authority of the dispute notice he filed with the RTB which suspended the eviction. [ 120 ] The claimants admit they did not collect the beds and mattresses right away.

They claim by the time the items came to their attention they were already “ruined” from having been “thrown out in the snow” so there was no point in securing them. As of the date they moved out in February 2018, the photos show the bunkbeds were left outside by the travel trailer. Ms. Anderson, to her credit, tried to save one of the mattresses by storing it under a truck canopy left by the defendants and put the bunk beds and other mattress under a tarp by the defendants’ travel trailer. [ 121 ] I do not find the claimants’ argument about the futility of collecting the beds to be compelling.

The bunk beds were metal and the queen bed was wood. Brief exposure to snow would not “ruin” them. Even with respect to the mattresses, being exposed to snow is not the same as being exposed to liquid water, and the claimants did nothing to try and dry and salvage them. I find the claimants’ actions in leaving the beds and mattresses outside inconsistent with an intention to act diligently to preserve them. [ 122 ] I prefer the defendants’ evidence that they asked the claimants to remove the furniture and the claimants failed to do so in a reasonable time frame. Initially the defendants were gratuitous bailees.

After the claimants failed to remove the items as requested, the defendants became involuntary bailees and were entitled to move the furniture out of their residence to another location so they could enjoy their property. [ 123 ] The claimants also complain that the TV was broken when it was returned to them. There is no evidence the defendants or someone at their behest or with their consent recklessly or intentionally damaged the TV.

As gratuitous bailees of the TV their duty of care was low. [ 124 ] I find the defendants did not breach their duty of care with respect to the beds and TV stored in their residence. [ 125 ] Even if I found the defendants breached their duty of care, I would award no damages for the loss due to the claimants’ failure to mitigate. They took no steps to secure and preserve the furniture upon discovering it had been placed outside the residence. I am not satisfied it was already ruined. Further, I accept Ms.

Anderson’s evidence that the queen bed used two queen sized mattresses stacked on top of each other and they were ripped, soiled and stained. These were of little value and were taken to the dump. Vehicles and Trailers [ 126 ] The claimants allege the defendants drove the GMC Envoy over boulders or handled it in such a way as to cause it structural damage. The defendants deny this, saying they only rolled it down a small hill to get it out of their way. There is no evidence it collided with anything during that endeavour.

As set out in Duet Marketing , a gratuitous bailee may move stored items as necessary to use and enjoy their property. [ 127 ] The onus is on the claimants to prove their claim. No mechanical expert evidence was adduced to show the cause of the damage was rough driving or handling, and when the driving or handling may have occurred. The Envoy sat on the Property for over a year before it was collected by the claimants. [ 128 ] The claimants also seek compensation for one months’ vehicle insurance purchased for the June 2, 2018 attendance they say was wasted due to the defendants’ denial of access to the Property.

I find they have not proven that claim. The claimants failed to seek permission to attend the Property on June 2, 2018, which they should have secured in advance before purchasing the insurance. Further, there is no evidence the vehicle was even roadworthy or operable. When it was retrieved in 2019, a tow truck was needed to remove it. The claimants did not arrange for a tow truck when attending on June 2, 2018. Travel Trailer and Contents [ 129 ] The Notice of Claim was filed July 4, 2018, and served on the defendants July 17, 2018.

As of that date the defendants knew the claimants were seeking orders and relief relating to the return of their Belongings. Photos of the interior of the travel trailer were taken

by Ms. Anderson in September 2018, after these proceedings had commenced. [130] Notwithstanding the matter was before the Court, the defendants disposed of the travel trailer without notice to the claimants.The defendants did not make an application to the Court nor did they prepare any records, such as a bill of sale or transfer, documentingthe transaction. I found Henry Meise to be evasive when answering questions about the disposal of the travel trailer.

Shannon Andersonadmitted it was given away for free to her son. [131] The defendants claim the travel trailer was a dilapidated health hazard, which is why they disposed of it. However, I draw anadverse inference from the fact they disposed of it without notice in the face of court proceeding, to a non-arm’s length third party (Ms.Anderson’s son). The defendants had the claimants’ contact information and address for service from the court pleadings. They couldhave sent a letter asking them to remove it. Alternatively, they could have sought a court order for permission to remove it.

I find thedefendants breached their duty of care as bailees by intentionally disposing of the trailer in these circumstances. [132] Disposal of the travel trailer also involved the potential removal of items from a dry storage environment to a more exposedenvironment. Many of the claimants’ Belongings were stored in the travel trailer, such as food, papers, personal items and someelectronics. The contents of the trailer had to be emptied for it to be disposed of. I find Ms. Anderson exercised reasonable care inmoving the electronics and TV to an old locked truck.

Other items, however, were put outside under a tarp the defendants had erected tostore a number of other items adjacent to the travel trailer. [133] The defendants did not provide the claimants notice their items would be removed from the travel trailer, despite the matterbeing before the courts. While the defendants were entitled to move around the travel trailer as necessary to better use and enjoy theirProperty, it was not necessary to empty the contents of the travel trailer for that purpose. I find the defendants breached their duty of carewith respect to those items.

Other Belongings [134] As stated above, the defendants’ only duty as involuntary bailees was to avoid recklessly or intentionally damaging or disposingof the claimants’ Belongings. They had no duty to actively preserve or protect the Belongings. [135] I accept the defendants’ evidence that for the most part they left all the Belongings in the same place, location and state as theclaimants had left them. They otherwise ignored them.

Shannon Anderson did take some steps to try and preserve things from time totime by adjusting tarps or putting thing in vehicles or under the truck canopy, but otherwise the defendants took a hands-off approach. [136] As stated above the defendants had no duty to guard the Belongings against theft or vandalism. The claimants knew when theyleft the Property that Caesey and his friends could access it. The defendants told the claimants they were often not at home. There werethefts from the Property, including of the defendants’ things.

Other than the travel trailer there is no evidence the defendantsintentionally damaged or disposed of the claimants’ Belongings or permitted other parties to do so. [137] Given the defendants were involuntary bailees and there is no evidence they recklessly or intentionally damaged or disposed ofthe Belongings, with the exception of the travel trailer, I find they did not breach their duty of care in respect of the Belongings.

Defendants Liability for Damages [138] Even if I am wrong and the defendants did breach their duty of care with respect to the Belongings, I find their liability fordamages would be negligible in light of the claimants’ failure to prove the value of their loss and their failure to mitigate that loss. Value of the Belongings [139] The value of the Belongings is very much in dispute. The claimants have adduced a binder of materials purporting to value theirlost or damaged items based on printouts of what those or similar items would cost as new.

By contrast, the defendants allege most of theBelongings were “junk” Lyle Meise picked up cheap or for free in hopes of reclaiming it. Lyle Meise says all of the Belongings totalled$150,000 in value, and around $55,000, if not more, were lost or destroyed when they finally retrieved the Belongings. [140] There was glaring incongruity between the alleged superlative value of the Belongings and the lack of care and effort theclaimants put into storing, securing, preserving, and collecting them. They left the beds and mattresses out in the snow.

They stackedthings outside under tarps and in make-shift sheds, or fully exposed, then left them in those conditions over the course of two winters.They left small transportable valuables like jewellery, firearms and collectible comics in insecure structures rather than moving them totheir new residence in Prince George. [141] Where a bailee is in breach of the duty of care and the bailor suffers a loss, the measure of damages is determined according tothe rule that the bailor is entitled to be placed in the position he would have been in had his property not been lost or damaged.

Damagesare assessed as of the time of loss. In determining the quantum of damages the court looks for the "actual value" of the property to theowner. Actual value is determined by considering such factors as estimated market value, replacement cost, the uniqueness of the items,appreciation and depreciation, the amount paid for the items, the fact some items may have been used, and the value of the items at thetime of purchase: Bendera v. C.E.& V. Holdings, (1983), (BC CA), 43 B.C.L.R. 96 (B.C.C.A.).

The onus is on theclaimants to prove that value. [142] The Belongings the claimants say were lost or damaged include:

a) A car tent worth $783 new. They claim the defendants intentionally tore down the tent based on the bent appearance of somesupporting poles. The defendants allege the car tent collapsed due to winter snow loads. No expert evidence was adduced to prove the

tent was deliberately torn down;

b) Propane tanks were missing. No evidence was adduced that these tanks were still viable (not expired). In the photos the propane tanks were left outside in the snow by the claimants. The claimants seek $718 for two 100 pound tanks and $122 for a 20 pound tank based on the cost of new items;

c) Outdoor lawn furniture was missing;

d) Lyle Meise states he had 27 collectible comic books worth $300 each which went missing from the 12X16 shed he had built. He also claims collectible glassware and cologne bottles were broken or missing. He values all his collectibles to be $11,528.66. He submitted some online ads for some similar items in support of this claim;

e) A hope chest the claimants allege was worth $117 previously in the travel trailer had been left in the elements and destroyed;

f) A utility trailer was missing. Photos adduced in evidence show a couple of utility trailers in very poor condition of questionable roadworthiness;

g) Lyle Meise says a number of electronics stored in the 12x16 shed were missing, broken or did not work. He adduced listings for some used items and many new items and collectively claims $4,390.11 for their loss. He identifies these items as including a security system with 4 cameras, an outdoor camera worth $179, a new printer worth $299, phones worth $74, and a DVD player, turntable, cassette deck and disc player;

h) The claimants allege they owned a TV worth $479 which was new when they first put it in the defendants’ residence. When they got it back the picture did not work;

i) Memory cards which had been stored in the travel trailer were missing;

j) Lyle Meise says he had 5 rebuilt laptops which he could have sold for $500 each. He says four had been moved from a vinyl shed to the car tent and were destroyed in the process;

k) A brand new home theatre system still in the box did not work when the claimants recovered it. It had been stored in the 12x16 shed. There was evidence of rodent infestation;

l) A WiiU console, controller and games stored in the 12x16 shed were all missing;

m) Miscellaneous housewares and kitchen items were missing;

n) A futon, dresser and table were missing;

o) A rocking chair worth $300 was left outside and damaged;

p) The bunkbeds, queen bed and mattresses previously stored in the defendants’ residence were ruined and collectively worth $7,000;

q) A vacuum cleaner no longer worked;

r) Suitcases, jewellery cases and make-up kits previously in the travel trailer were left outside and destroyed by the elements. The claimants did furnish a receipt for $29.99 for a jewellery case, but I note it was purchased in 2019 and not part of the Belongings. They claim the destroyed jewellery case was worth $24;

s) Used make-up and toiletries previously in the travel trailer were ruined. I note these items already would have had minimal value, even if left in the trailer, given they were exposed to two freezing winters;

t) Half of the clothing as well as a chainsaw, lawnmower and auto parts previously stored in the car tent were missing;

u) Horse tack previously stored in the 12x16 shed was missing or damaged. A saddle, chaps and hat were damaged, while spurs and snowshoes were missing. The claimants adduced listings for new saddlebags at $150 and a new saddle at $2,222. Listings for a used saddle suggested a price of $300, used spurs at $40 and chaps for $100. The claimants adduced a listing for snowshoes priced at $150 and hat priced new at $72.They adduced a “quote” from 2008 pricing a saddle at $899. There is no evidence they bought that saddle or paid that amount for it in 2008;

v) The claimants allege camping supplies from the 12x16 were “left out in the rain”. The claimants value those supplies, including firearms, to be around $7,000 based on printouts of items sold as new;

w) Car batteries were missing or destroyed. I note the photos show the car batteries had been left outside in the snow while the claimants lived there in December 2017; and

x) Christmas decorations were damaged or missing which the claimants value at $534. Photos show some Christmas items being stored outside. [ 143 ] The claimants adduced some receipts for the purchase of some tools and various building supplies prior to 2017, but these receipts did not relate to the items the claimants say were lost or damaged.

I note the claimants allege their possessions were very valuable (for example, $8,100 of collectible comics, $7,000 beds, a $6,000 travel trailer, $2,000 worth of laptops; $3,900 horse tack, $600 compound bow, $550 solar panels, $918 firearm; $551 rifle, $969 security system, $300 printer, $500 stereo system and computer items). One would have expected the claimants to be able to source some receipts, bank or credit card statements showing the amounts

they paid for those items to support their valuation. [ 144 ] The claimants seek $5,537 in damages for the cost of the queen sized bed they allege the defendants “threw out in the snow.” Ms. Anderson says this was just an old double sized waterbed frame converted into a bed. The claimants did not adduce any receipts or photos to prove the value of that bed frame, despite having allegedly purchased it from the Brick shortly before they moved to Prince George in 2017. Lyle Meise adduced a printout alleged to be a price listing of that same bed from the Brick, however, the printout is for a sleigh bed. Mr.

Meise called the bed he owned a “four poster bed.” The claimants were also not forthcoming about their loss associated to these beds. When confronted about their ability to pay $7,000 for the beds, Ms.

MacAulay admitted they got them “half price,” and that $7,000 represented the full cost of the bed without the discount, not what the claimants actually paid. [ 145 ] The claimants also furnished no documentary evidence of what they paid for the travel trailer, even though that price would have been documented and readily accessible through transfer records registered with ICBC. [ 146 ] Similar to the case in Buzaglo v. Iuliano , [2015] O.J. No. 6083 (ONSC) , the claimants have adduced little to no documentary evidence of the value of the Belongings.

They have went online and printed out listings for new items without furnishing any proof of what they actually paid, and how old or new their items were. [ 147 ] Further, in considering the value of the items I must have regard to how much they were worth at the time the claimants would have actually collected them, not when they purchased or left them.

I have found the claimants made no bona fide effort to remove the Belongings until July 2019, a period of over two years from when the claimants first moved on to the Property. [ 148 ] In Duet Marketing , Madam Justice Southin, restated the axiom that “the law aids those who are vigilant, not those who sleep upon their rights.” The Court held that even though the defendant had acted unreasonably in selling the plaintiff’s equipment, the plaintiff’s failure to act “timeously” to remove the equipment weighed against it in assessing damages.

Madam Justice Southin confirmed as an involuntary bailee it would have been reasonable for the defendant to have simply removed all the equipment and put it outside on a corner of their property without doing anything more to protect or preserve it. In that condition the possessions would have been exposed to theft and vandalism.

She concluded the plaintiff was only entitled to recovery of the diminished value of the removed equipment as if it had been left outside for six months, as the plaintiff took no steps to recover it in that time frame. [ 149 ] The Belongings were left in various areas around the Property spread over a ½ acre of land.

Some items were in the homemade 12x16 shed Lyle Meise built, some were in a large tarp car tent, some were under a tarp by the travel trailer, some were in a storage shed of Henry Meise’s, and some were out exposed in the yard. [ 150 ] Photos of the travel trailer taken in November and December 2017, prior to the claimants’ departure show it situated under a ramshackle tarp structure. The tarp structure loosely covers a large pile of items underneath alongside deep layers of snow.

There are garbage bags in the snow as well as a freezer, lawnmower, propane tanks, a washing machine, boxes, a hand-made patchwork utility trailer, garden tools, pet supplies, building supplies, bicycles, a bed frame, a dolly, pick up tool box, work bench, and small appliances. Other photos demonstrate large sections of area or items being protected only by tarps. [ 151 ] The claimants allege the Belongings stored in the 12x16 shed were ransacked and had previously been stored neatly inside. However, photos taken December 15, 2017, when Ms.

MacAulay was still living on the Property show items in a shed piled randomly. Cabinet doors the claimants complain were damaged are stacked outside the shed beside encroaching snow. [ 152 ] Photos from April 2018 show, in addition to the aforementioned items, tires and car batteries sitting out in the snow.

Most of the items captured in the December 2017 and April 2018 photos, appeared to be well used or weathered. [ 153 ] Photos taken in May 2019, show a pile of items stored under a tarp in a field, items stored under a truck canopy, and items such as the lawnmower, freezer, tires, building supplies and car batteries in the same position as they were in the previous years’ photos. The area in the photos has the appearance of a junkyard. [ 154 ] The evidence discloses that when the claimants moved on the Property they had no structure to house any of their belongings in.

Lyle Meise built a homemade shop to store many of the items he now complains were broken. The items were moved up by the claimants themselves. There is no evidence the claimants confirmed the operability and integrity of any of the boxed items upon putting them into the shed. It is difficult to ascertain when the items were lost or broken: during the move, while being stored on the Property when the claimants were living there, or afterwards. These items were being stored in an unheated shop and therefore also would have been subjected to very cold temperatures in the winter. [ 155 ] Ms.

MacAulay testified that when she went to get the Envoy in May or June 2019, it appeared to her the car tent was still standing. She noticed the door to the 12x16 shed was down and the contents inside looked cluttered and ransacked, not stacked neatly as the claimants had left them. She said the roof was not leaking but admits it was not raining that day. Ms. MacAulay states that when she attended the Property in January 2020, she saw the car tent was bent in a little but still intact. By May is was dipping “deeper than it should have”, but was still standing.

Despite observing the progressing failure of the car tent, the claimants did not take steps to secure the items inside the car tent. [ 156 ] In my view, none of the items left outside or merely secured under tarps were sufficiently secured against the damaging effects of Prince George weather. [ 157 ] Photos taken of the travel trailer in July 2018, show the ramshackle tarp structure has collapsed and a large pile of items and boxes which had been stacked under that tarp were sitting outside exposed to the elements.

These include piles of boxes, Tupperware, garbage bags of items, luggage, cooler bags, electronics, furniture, and what appears to be small appliances. [ 158 ] The defendants adduced more photographs of the claimants’ belongings taken May 11, 2018, when the snow had disappeared. They show piles of old building supplies sitting out, uncovered, in a field. There are dilapidated old utility trailers that do not appear roadworthy, piles of rusty tin roofing, and miscellaneous items such as Christmas decorations, hoses, and other items spread on the

ground over a large area. The tarp had completely come off the travel trailer and some windows appear broken. [ 159 ] Photos taken of the car tent in 2018, shows that tarped structure was still intact, however, numerous items were set on the bare ground underneath among the foliage and dirt, including an air compressor, welder, toolboxes, and power tools. Clothes were hung on bars in this outdoor structure. [ 160 ] Photos show that many items appear to have been exposed to the elements, and some items stored in cardboard boxes appear to have been subjected to water or rodent damage.

The defendants say that the 12x16 shed was neither waterproof nor impenetrable to rodents. Items stored in the car tent had no protection against humidity, weather changes, seeping water, or animals. Items stored outside had been exposed to two years of rain and snow. [ 161 ] Despite several access orders, the claimants did not act diligently to recover the Belongings until July 2019, more than two years from when the goods were first deposited on th

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