Alex Monaghan - v. -, 2017 SKPC 100

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2017 SKPC 100 Date: December 20, 2017 File: SC#662 of 2016 Location: Saskatoon _____________________________________________________________________________ Between: Alex Monaghan - and - Trevor Jones Self-represented For the Plaintiff Self-represented For the Defendant _____________________________________________________________________________ JUDGMENT L. A.

MATSALLA , J _____________________________________________________________________________ [ 1 ] The plaintiff’s claim is in the amount of $11,228.03 - an amount that he says constitutes the value of certain of his goods that the defendant took into his possession and that he could not recover from him. As part of his claim, Mr. Monaghan seeks the sum of $3,850.00 as compensation for rent. The defendant takes the position that the plaintiff abandoned the goods. The Facts

[ 2 ] Much of the evidence is not in dispute. [ 3 ] Mr. Monaghan became acquainted with the defendant in 2012 and the two became friends. In fact, on June 12, 2014 they and another person signed what appears to be an “Offer To Purchase” whereby they purchased inventory from another person, the cost of which was to be paid monthly. The buyers used the inventory to operate a convenience store at 1524 Rayner Avenue in the city. According to the plaintiff, the defendant was to be responsible for making the payments and the plaintiff was to work in the store without compensation.

The agreement, was to be a “joint venture” and Mr. Jones was of the view that he had entered into the agreement to, at least in part, help Mr. Monaghan to “better himself”. At the time Mr. Jones operated a care home at 1208 - 14 th Street East for persons with intellectual disabilities. In August, the defendant permitted the plaintiff to move into his house on 14 th Street because Mr. Monaghan did not have any money and he did not have any place to live. After November 20, the defendant helped the plaintiff to move more items from his mother’s residence. Mr. Jones considered Mr. Monaghan a guest.

The plaintiff brought his belongings to the house including, he says, a backpack full of Magic cards, a carrying case full of models for a tabletop game and a Nintendo Wii unit. He worked long hours on everyday of the week. Unfortunately the business was not making a profit. [ 4 ] By the fall of 2015, Mr. Jones concluded that he could no longer have Mr. Monaghan live in the house because the space was necessary for a paying customer and so he helped him move to a basement in his townhouse condominium at 315 Avenue N South where the plaintiff lived until the latter part of May of the next year.

During that time it appears that the two were close in that they even spent Christmas together. Mr. Jones does not question Mr. Monaghan’s testimony that he (the plaintiff) possessed the goods referred to by him. I am satisfied that Mr. Jones was aware of the goods that Mr. Monaghan had brought with him because Mr. Monaghan talked to him about them, he helped them move and he told Mr. Monaghan to store items under the stairs at the residence. [ 5 ] By the late spring of 2015 a rift had developed between the two. Mr. Jones told the Court that a dispute had developed because Mr.

Monaghan did not remit $1,500.00 to a lottery organization, a shortfall that Mr. Jones covered. By way of social media messages on Facebook, on May 26 at 11:02 a.m. the defendant asked the plaintiff to leave the residence by sending him the following message: This severs [sic] as an immediately eviction notice for Unit 4 - 315 Ave N south for not comply with our terms. You just stole from the lotto thief. Shortly thereafter, the parties undertook the following exchange: Defendant: You are done!!! Get your stuff.

Plaintiff: i have 30 day if you have no paper proof Defendant: Get your shit off my deck in the back! !! Plaintiff: im currently working, even though you’re braking [sic] the law i will be there when i can be there.

Defendant: You are a guest that is not welcome no laws apply to you. Do not trespass on my property or you will be removed legally. You are not a tenant get your life together you where not an employee of that store so you can’t invoice me for the money. [ 6 ] Mr. Jones testified that he was occupied at his business and so he had contacted another person to change the locks and to leave the plaintiff’s goods on the deck. [ 7 ] The plaintiff did not have a vehicle but on that same day, at about 1:00 p.m., he attended at the townhouse in the company of another person who was prepared to assist.

He picked up items that had been left on the deck but he could not take his bed. He then went downstairs intending to take more of his belongings but the goods he had stored under the stairs were gone and a closet was empty. According to the plaintiff the goods included: 1) a box full of books about Dungeons and Dragons; 2) a bag of Pathfinder books; 3) two Nintendo Wii units with two controllers; 4) a carrying case of models; and 5) a backpack containing Magic cards. He returned to the store with his belongings and contacted Mr. Jones requesting his goods. Mr.

Jones denied having them. [ 8 ] The defendant told the Court that he had tenants at the residence and that he had instructed them to check to see if any of Mr. Monaghan’s property was missing. On May 27 at 2:14 p.m. the plaintiff sent the defendant this message: I want my property back. Mr. Monaghan made a complaint to the Saskatoon Police Service about his missing goods and on May 27 or 28 the authorities spoke to Mr. Jones who said that that was when he first discovered that the goods were missing. On June 2, Mr. Jones sent the plaintiff a message saying: Remove your beds from the pleasant hill condo board.

Our board will have no choice but to remove due to the fire hazard they present. Mr. Jones told the Court that he did not steal the goods and he does not know what happened to them. [ 9 ] The plaintiff submits that the items that are missing consist of the items referred to above and more specifically set out in detail in Exhibit P-2. The value of the items as he sets them out in the exhibit total the sum of $7,378.03 and include a mattress and box spring valued at $2,679.94. Most, if not all of the items, are valued at retail prices.

I do not know how the plaintiff arrived at the individual prices and I cannot determine what the market value of the items might have been in the late spring of 2016. The Position of the Parties [ 10 ] The plaintiff claims the value of the missing items from the defendant and the defendant claims that the goods were abandoned. As far as I can tell there are two categories of property that are the subject of this claim and they are:

a) the books, models, cards and video apparatus described above (also referred to as “the items”) that were under the stairs; and

b) the mattress and box spring (also referred to as “the bed”).

The Law [11] I am satisfied that, on the facts, the plaintiff was not, at any time, a tenant. [12] In the Saskatchewan case of Stewart v Gustafson, (SK KB), [1998] SJ No 614 (QL), Sask QB [Stewart],Mr. Justice Klebuc (as he then was) heard a case in which a person had left scrap vehicles, old farm equipment, tools, parts andequipment in a farmyard that had been sold to another person. The buyer disposed of the property and the owner of the itemscommenced proceedings claiming the value of the goods saying that the buyer converted the property to his own use.

At paragraph 10the Court said this: Circumstances akin to those before the Court often arise, for owners frequently give up possession of their chattels without specificallypassing title thereto to another party. For example, older motor vehicles are often left on parking lots, road allowances or land adjacent tohighways and personal items are left by departing tenants or vendors of land, all without any expressed intention of “giving up legal title”thereto. Frequently, such owners are said to have “abandoned” their property. . .

Klebuc J. went on, in paragraphs 13 to 15, to refer to learned authors and a text that set out what constitutes “abandonment” where hereferred to the following: [13] R.A. Brown in The Law of Personal Property, 2nd ed. (Chicago: Callaghan, 1955) defined "abandonment" as follows: Abandonment occurs when there is "a giving up, a total desertion, and absolute relinquishment" of private goods by the formerowner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property . .. . [14] Black's Law Dictionary, 5th ed. (St.

Paul Minn.: West Publishing Co., 1979) provides the following definition: The surrender, relinquishment, disclaimer, or cession of property or of rights.

Voluntary relinquishment of all right, title, claim andpossession, with the intention of not reclaiming it. . . . “Abandonment” includes both the intention to abandon and the external act by which the intention is carried into effect. [15] Professor Ziff, in Principles of Property Law, 2nd ed. (Toronto: Carswell, 1996) at p. 127 noted that abandonment involves theconverse of possession- taking in the sense that there must be an intention to relinquish title, "that is, an indifference as to the fate of the chattel, coupled with sufficient acts of divestment. . . ." [13] The Court pointed out that the party relying on the principle of abandonment must prove an intention to give up ownership ofthe chattels.

Intent can be inferred from the facts of the case. The following factors can support such an inference:

a) passage of time b)nature of the transaction

c) the owner’s conduct, and

d) nature of the property. [14] It can be an answer to the allegation that a person converts another’s goods that the goods on the owner’s property constitute anuisance. However certain conditions must exist. (See paragraph 22 of Stewart). Analysis

[ 15 ] Dealing firstly with the bed, it is clear that the defendant demanded that the goods be removed as soon as possible and while it would not have been reasonable for the defendant to expect that the bed be moved forthwith given that Mr. Monaghan did not have a vehicle and that Mr. Jones must have been aware of that fact, it is not unreasonable for the defendant to expect that the plaintiff would have made some arrangement to do so in the days thereafter. The plaintiff did not return to the residence nor did he make any effort to contact the defendant to propose to move the bed.

Even with the defendant’s initial threat to consider the plaintiff’s attendance upon the property as a trespass, it was possible for the plaintiff to do so after June 2 however, he did not make any effort to try to recover the bed. Taking all of the facts into account I must conclude that the plaintiff abandoned his interest in the bed and that the defendant is not responsible to the plaintiff for the value thereof. [ 16 ] With respect to the items, I am satisfied that Mr. Jones was aware that Mr. Monaghan possessed the goods since he helped move the goods and he told Mr.

Monaghan where to put them in the townhouse. Mr. Jones took it upon himself to contact an agent and to instruct that agent to remove the plaintiff’s goods from the house and to put them on the deck. He then instructed an agent to change the locks at the residence. The items were gone by the time the plaintiff promptly attended to recover them. There was never any intention on his part to abandon the items - quite the contrary. Mr.

Jones makes reference to the goods constituting a fire hazard however, the items were not on the deck when the plaintiff attempted to recover them and so the items could not constitute a nuisance. Therefore, I must conclude that Mr. Monaghan did not abandon his goods and that Mr. Jones was responsible for those goods. He is liable to the plaintiff for the value of the items. Damages [ 17 ] The plaintiff has valued the items (including the bed) at $7,378.03 and the individual values that he places on most of the items appears to be a retail price.

The values are his own and there is no evidence from him or any other independent source as to the value of the goods. Mr. Jones did not challenge the values attributed to the goods by the plaintiff. However, I am not satisfied on balance that the plaintiff has established the extent of his loss. I do find it curious that the plaintiff, who was in impecunious circumstances throughout, would apparently collect items that he now says are of significant value. Even though Mr. Jones did not question Mr. Monaghan’s evidence that he (Mr.

Monaghan) owned all of the items claimed, there is no other evidence to confirm his ownership. [ 18 ] Having so concluded that Mr. Jones is responsible for the value of Mr. Monaghan’s goods, even if I cannot, with precision, determine the extent and precise value of those goods I am required to do the best that I can to set damages. Having reviewing the evidence, I have concluded that Mr. Jones is liable to the plaintiff for goods of a value of at least $2,500.00.

Therefore the plaintiff shall have judgment against the defendant for the following: claim $2,500.00, pre-judgment interest calculated from May 26, 2016 to the date of judgment; and costs of $100.00. _____________________ L.A. Matsalla, J