Sharon Thorvaldson-Hoffert v. Franklin Hoffert, 2015 SKPC 135

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 135 Date: September 25, 2015 File: 06/15 Location: Moose Jaw _____________________________________________________________________________ Between: Sharon Thorvaldson-Hoffert and Franklin Hoffert - and - Marilyn Torgerson Self-Represented For the Plaintiffs Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT M.

GORDON , J _____________________________________________________________________________ [ 1 ] The plaintiffs bring an action against the defendant requesting general damages in the amount of $20,000.00. The plaintiffs say this represents the value of the items missing from their home when the defendant was looking after their home. The defendant filed a dispute note denying the claim and stating she did not remove or take any items from the Hoffert residence. I find the plaintiffs’ action is based on the common law tort of theft by conversion.

THE EVIDENCE [ 2 ] Franklin Hoffert testified that the defendant was a good family friend. She came over and the plaintiffs reviewed what they wanted her to do when they were away on a two week vacation to Mexico. The night before the plaintiffs departed, the defendant came over and they talked about what needed to be done. The defendant had the plaintiffs’ puppy at her own home and came to the plaintiffs’ home daily to feed the two cats. After the plaintiffs return, they started to notice that many items were missing from their home.

They talked to the defendant and she said she had no idea these things were gone. Mr. Hoffert said upon their return, his wife noticed that only about 20 percent of her jewelry was left and such things as 200 cassettes were missing from a bag in the basement, and other items had gone missing. The plaintiffs also had lock up boxes where they stored valuable papers. Over the next one and a half to two months after returning, the plaintiffs noticed many more items missing from their home. The plaintiffs had told the defendant where the key was to the lock up box.

If something happened to them, she could tell the plaintiffs’ daughter how to access the box. He noted a number of contents missing from the lock up boxes including money and jewelry. [ 3 ] Bev Vankoughnett was the next witness. She testified she works at Valley View Centre in Moose Jaw and either works the 7:00 to 3:00 shift or 3:00 to 11:00 shift. The plaintiff Sharon is a friend and she had been given a key to the house in case she needed a place to stay due to stormy weather. Bev lives outside of Moose Jaw at Mortlach.

Bev testified that one day when the plaintiffs were away, she went to Sharon’s house to freshen up and change her clothes as she had worked the 7:00 to 3:00 shift and was going to a retirement party that started at 5:00. She was watching TV and the defendant came in and rushed around. The defendant fed the cats but was not very communicative with Bev. Bev had put her cell phone on the kitchen table and when Marilyn left, she took the phone. Bev noticed this right away and noted that her phone was red and Marilyn’s was white.

She finally found the defendant’s number on a list of contacts that the plaintiffs had left and contacted Marilyn who returned the phone right away. Bev said this is the only time that she was at the house during the plaintiffs absence. [ 4 ] The next witness was Theresa Prochinsky. She lives in Regina and is Sharon’s daughter. She confirmed that all the items that Sharon had in her house in Willow Bunch, she brought to Moose Jaw.

She also stated she does not have a key to Sharon’s house and she never came to the plaintiffs’ home when they were away. [ 5 ] On cross-examination she said that Sharon had been an Avon representative and that Sharon had moved into Moose Jaw in approximately 1991. [ 6 ] The next witness was Terry Multon. He met the plaintiff in the early 1990s. They dated for awhile, played music together and then went their separate ways although they remained friends. He is aware that Sharon had a lot of music, Avon items, jewelry and cooking items. On cross-examination he said that they split up in 1997.

He said that Sharon looked after all her belongings very carefully and she was very organized about this. [ 7 ] Finally, Sharon Thorvaldson-Hoffert testified that she and Franklin were on a two week honeymoon/holiday in Mexico and they asked two different friends to house sit. Bev Vankoughnett had said she would take the puppy but given her

schedule at Valley View, the weather and the fact that she lived in Mortlach, she could not commit to feeding the cats daily and checking on the house. Therefore the plaintiffs asked the defendant to look after the house, cats and puppy. The plaintiff told the defendant there were five litter boxes in the basement so she did not need to go down to the basement at all. When Sharon was packing the night before leaving, she called Franklin and Marilyn into her bedroom and pointed out to them how many earrings she had on a board in her bedroom.

They gave the defendant the house key after the arrangements had been made. [ 8 ] When the plaintiffs returned home, they called the defendant and said they would pick up the dog in the morning. The defendant said she would drop the dog off after supper as she was busy the next day. The plaintiff was very tired but started unpacking and as she was putting her earrings on the board on the wall, she noticed many were missing. Sharon contacted the defendant who came over to the plaintiffs’ home. The defendant said maybe a cat knocked them down.

During the next several weeks, the plaintiff would go to get various items such as a mop, her waffle maker or a baking pan and these items were all missing. Sharon states she is very organized and every time she went to find something, it was not there. She and her husband also have a band and they go through their cassettes regularly. She said she had a large bag of 500 cassettes and she noticed that the bottom had been ripped open and 30 to 40 cassettes were missing. She also noticed many home videos missing.

Sharon went into her closet and she noted clothing items were missing and also other items missing from downstairs. At one point, she called the Moose Jaw City Police and reported these losses. She was advised by the police officer to take her time and go through the house and take a careful inventory and write down all the missing items. Sharon also spoke of the two lock up boxes that had two keys. She told the defendant where the keys were with

instructions to let her daughter know if there was a tragedy and give the keys, including house keys, to her daughter. Sharon spoke of collectible jewelry and money that was also missing. Exhibit P-1 is a six page list with items missing and what she paid for them. Exhibit P-2 is 21 pages of miscellaneous receipts and other missing items and Exhibit P-3 is three pages listing missing money.

It should be noted that the defendant had only been provided with copies of Exhibit P-1 but consented to Exhibit P-2 and Exhibit P-3 going in as exhibits. [ 9 ] Sharon said she kept careful records and bills of everything she purchased over the years. She even recorded a list of the movies that she had recorded. She was adamant she writes everything down when she purchases it, when she lends it, etc. Sharon said that she and the defendant had communicated by e-mail, the defendant saying she was having trouble with the outer porch door key. It was very sticky and she asked if she could leave that unlocked.

The plaintiff did not like this idea as Marilyn had the original key and she did not understand why there was a problem. The plaintiff says she just wants some general damages and compensation for what Marilyn took. [ 10 ] On cross-examination Sharon admitted she had asked her friend in Mortlach, Bev, to look after the house initially and Bev had said it would not work.

The plaintiff admitted she had also asked another friend/relative and he declined as he was taking an EMS course. [ 11 ] The defendant cross-examined Sharon about her good memory and then suggested that in January 2014, she was not living one and a half blocks away as the plaintiff suggested. The plaintiff Sharon agreed that that was the case. Marilyn also asked the plaintiff about her daughter Ms. Prochinsky.

The plaintiff agreed that her daughter had not been diagnosed with cancer at that time and therefore was not in chemotherapy. [ 12 ] The plaintiffs closed their case. [ 13 ] The defendant Marilyn Torgerson testified the plaintiffs asked her to look after their house when they went to Mexico. She reluctantly agreed. She was aware the plaintiffs had asked two other people and these arrangements fell through. She denies ever being told where the keys were to the lock up boxes. The plaintiffs wanted to tell her about these keys, but she said she did not want to know at all.

The defendant also says that she was shown where the garbage bags were and how to dispose of the cat litter in the basement. She denies that she was told not to go down to the basement. She said one of the reasons she was checking on the house was to make sure everything was okay including the furnace in the basement. Marilyn adamantly denies taking any of the items listed in Exhibits 1, 2 and 3. Marilyn explained that she picked up Bev’s phone by mistake and when contacted, she brought it right back.

She would come in and put her phone on the table and when she left she just picked up the phone that was there without even looking. Marilyn said that she lived on Hochelaga Street West in January 2014, not just down the block from the plaintiffs which is where she lives now. She had been good friends with the plaintiffs up to this point and when they offered her $160.00 for looking after the house, she took $20.00 for gas and gave the rest back with the comment that “you have no more money than I do”. That is all she wanted. [ 14 ] The defendant also called one other witness, Sherry Thorvaldson.

Sherry stated that she is the defendant’s daughter and when her mother said she was going to house sit, she was very upset and advised her not to do it. Sherry states the plaintiff is known to accuse others falsely. Sherry said that she does not have the same digital camcorder as the plaintiff. The defendant closed her case. [ 15 ] In

summary, the plaintiffs stated all these items were in the home when they left for Mexico for two weeks in January 2014 and they were missing when they returned. The defendant was the only one that had access to the home and the plaintiffs ask the Court to assign some responsibility and award general damages. [ 16 ] The defendant’s position is clear. She denies taking any of these items. She says there was more than one person who had a key. She says the plaintiff misstated several matters such as where the defendant lived, the daughter having cancer at the time and bringing all the items from Willow Bunch.

In her opinion it would be foolish of her to remove earrings from the board in the plaintiff’s bedroom when the plaintiff had drawn her attention to the items the night before she left. The defendant asks that I dismiss the claim. DISCUSSION

[ 17 ] Theft by conversion has the following elements; the plaintiff has clear legal ownership or right to possession of the property at the time of the conversion, secondly, the defendant’s conversion by a wrongful act or disposition of the plaintiff’s property rights and thirdly, there are damages resulting from the conversion. [ 18 ] The remedy for conversion is usually in the form of damages equal to the fair market value of the item at the time of the conversion. The defendant can offer to return the property but the plaintiff is not obliged to accept it.

The burden is on the plaintiff to establish their case on the balance of probabilities. The plaintiff must establish their interest in the property, identify the property and value of the property. In addition, the plaintiff must identify the defendant who had control of the property and intentionally converted the items to her own use. DECISION [ 19 ] I find that the plaintiff’s case fails for many reasons. First of all, I am not satisfied that she can say with the necessary degree of certainty that the items she lists in Exhibits 1, 2 and 3 were in her home during the two weeks the plaintiffs were on vacation.

The plaintiff Sharon, as well as other witnesses, say Sharon is a very organized person. The plaintiff’s daughter said all items that her mother had in their former house in Willow Bunch were brought to Moose Jaw in 1991 when the plaintiff relocated. However, this is a general statement and of really no evidentiary value. The plaintiff Sharon made over generalized comments as well as contradictory statements. At one point she said the defendant lived down the street from her at the time of the incident but actually the defendant lived on Hochelaga Street some distance from South Hill.

The plaintiff also said she did not give her daughter certain information about the keys for the lock up boxes because she was undergoing chemotherapy. However, on cross-examination by the defendant, the plaintiff admitted that her daughter had not been diagnosed with cancer at that time. I do not accept that the plaintiff can accurately recall that she had in her possession, in January 2013, all the items listed in the exhibits. The plaintiff points to certain actions of the defendant and asks the Court to draw an adverse inference, in other words, to find the defendant responsible for the theft.

In making a determination that someone stole significant contents in someone else’s house is a serious matter. These facts are not sufficient for me to accept that all the items were in the house at the relevant time nor is it sufficient for me to infer that the defendant stole anything.

These are as follows: ● the plaintiff pointed out to the defendant certain items of jewelry on the jewelry board in her bedroom the night before they left, ● the defendant cleaned the cat litter boxes in the basement when she was specifically told not to do that, ● the defendant picked up her friend’s cell phone by mistake, and ● the defendant did not lock the outside porch door as she had trouble with the key. [ 20 ] The defendant denies taking any items from the plaintiffs’ house. She described what she was requested to do and that she checked the house and fed the cats daily.

She cared for the plaintiffs’ puppy at her own home. I accept the defendant’s evidence. [ 21 ] In addition there is a problem with the plaintiff’s claim for damages. There is no evidentiary basis for the values assigned to the items missing even if I found them to be missing. While the plaintiff may have paid a certain price for a pair of earrings from Avon several years ago, that is clearly not the value today. In addition, the plaintiff has added on sentimental memento value in the amount of $3,000.00 plus $9,000.00 on another page with no evidentiary basis to support this.

Therefore, the plaintiffs’ claim in its entirety is dismissed. M. Gordon, J