Balsor v. Wentzell, 2023 NSSM 57

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Balsor v. Wentzell , 2023 NSSM 57 Date: 202308 03 Docket: 514705 Registry: Halifax Between: Sharon Anne Balsor Claimant - and - Rebecca Wentzell Defendant DECISION Adjudicator : Eric K. Slone Heard : Via teleconference on June 19, 2023, in Halifax, Nova Scotia Appearances : For the Claimant, self- represented For the Defendant,

Tess Panzarasa, counsel By the Court: Introduction [ 1 ] This is a retrial of a matter that was first tried by another adjudicator of this Court in August 2022. That order dismissed the claim, with written reasons. On appeal, on April 24, 2023, a Justice of the Supreme Court allowed the appeal and directed that it be retried before a different adjudicator. That order did not elaborate upon what error(

s) were made by the original adjudicator, but I understand from Defendant’s counsel that there were several factual errors that must have convinced the Justice that the order was unreliable. [ 2 ] The situation has improved somewhat, in that the Defendant was represented by capable counsel this time, and further witnesses were called that shed greater light on what is a fairly confusing set of facts. [ 3 ] The people involved in this case are mostly related to each other, by blood or marriage. It is helpful to set out a bit of a family tree. a. Florence Balsor (who died earlier this year) had three children: (

a) Rebecca Wentzell (the Defendant) and Kenneth Wentzell both by a first marriage, and (

b) Edward (Ed) Balsor (who died in January 2021) by a second marriage. b. Ed Balsor was married to the Claimant, Sharon Anne Balsor, though they were not living together for the last few years of Ed Balsor’s life. [ 4 ] In other words, Florence Balsor was the Claimant’s mother-in-law, and the mother of the other three named people.

The Claimant and Defendant are thus sisters-in-law. [ 5 ] Two other people testified, family friend Dale Slawter, who testified for the Claimant, and family friend Doralynne Brown who testified for the Defendant. [ 6 ] For ease of understanding, and meaning no disrespect, I will sometimes refer to the Claimant as “Sharon,” the Defendant as “Rebecca,” Ed Balsor as “Ed” and Florence Balsor as “Florence.” Facts

[ 7 ] Florence owned a home for many years at 81 Gaston Road in Dartmouth, where she resided until February 2022 when she was placed in long term care. She died in May 2023. [ 8 ] There are a few facts which are not particularly controversial. In or about 2008 or 2009, Sharon and Ed set up a legal medical marijuana grow operation in the basement of Florence's house. This operation needed regular tending, which was mostly provided by Ed until his untimely death in 2021. [ 9 ] In or about 2015, Sharon acquired various items of personal property after the death of her aunt.

Because she and Ed did not have the room to store these items in their own home, they received permission to store them in Florence's house. Some of the furniture was kept downstairs so it could be used by Florence. Other items, including many heavy boxes of dishes and allegedly valuable mementos, were stored in the attic. Other items were stored in the basement. [ 10 ] It does not appear that any of these items were photographed before they were moved into Florence’s home, which in retrospect would have been useful for the purposes of this proceeding. Nor does it appear that they were inventoried at the time.

The inventories that exist are recent, based upon Sharon’s memory. [ 11 ] In or about May 2017, Florence had a stroke and after a short hospital stay returned home requiring around-the-clock care. She was still able to make her own decisions. It was at this time that Doralynne Brown, a family friend, was moved into Florence’s home to provide this care. Ms. Brown testified that she lived in Florence's home between 2017 and 2021. She stated that Ed was typically present every day, often attending to his grow op. [ 12 ] During these years, Florence got around in a wheelchair and according to Ms.

Brown, she often collided with furniture causing damage. [ 13 ] Significantly, Ms. Brown gave evidence about having helped Sharon and Ed move their boxes into Florence's home. She described some of the boxes as heavy enough to require two people to lift them up to the attic. She also testified that at other times she observed, and sometimes assisted Ed, in moving boxes out of the attic. She said that she was told by Ed that they were being moved to his cousin Terry's home so that they would be protected.

It is these boxes that appear to be part of what Sharon is accusing Rebecca of having denied to her. [ 14 ] There is no question that some other items were still in the home by the time that Florence got moved out into a nursing home, and there is a significant difference between the parties as to whether or not she was given a proper opportunity to collect them. Sharon says that she was told she would be given advance notice so that she could make arrangements to transport her remaining items. According to Rebecca and Ms.

Brown, Sharon failed to show up at times when she had indicated that she would attend. [ 15 ] These items consisted of remnants of the grow op, a couple of portable generators and various tools that had been kept in the basement. [ 16 ] Rebecca testified that she learned from Ed that he had taken most of the valuable items for safekeeping to his cousin Terry's house. According to Rebecca, she understood that Sharon had collected these items from Terry. Sharon does not agree with that. [ 17 ] After Florence was placed in long-term care in early 2022, Rebecca undertook to clean out the house to prepare it for sale.

She testified that there was nothing of value in the attic, and in fact everything in the attic was bagged up and placed in the garbage because it was full of rodent mess. Rebecca admits that there were some items in the house which she sold for relatively small amounts of money. The items that she now concedes belonged to Sharon were a brass horse which she sold for $100.00, a Tea trolley sold for $40.00, a fireplace for $400.00, some fur stoles sold for $50.00, three generators sold for a total of $450.00 and miscellaneous other items sold for $150.00. (These total $1,190.00).

[ 18 ] Rebecca did not seem to be entirely certain at the time that these were Sharon's property, as her mother, Florence, had maintained that everything in the house was her own. [ 19 ] This account by Rebecca is significantly at odds with what Sharon claims. Sharon produced an inventory of items which have an estimated value ranging from a low of $34,858 to a high of $244,215.

She says that these values came from Dale Slawter’s effort researching online sale prices of similar items through sites like eBay. [ 20 ] I have no hesitation in saying that I give almost no weight to this inventory, or to the values contained in it. It is my finding that Sharon lost touch with much of what she had been storing in Florence's home, and she has an unrealistic view of their quality or value.

But more to the point, the evidence is convincing that almost everything of value, especially from the attic, was moved by her husband (later ex-husband) Ed, and very likely was disposed of by someone other than Rebecca. [ 21 ] Whatever heavy boxes that had required two people to carry into the attic were no longer there when the house became unoccupied.

I accept Rebecca and her brother Kenneth’s evidence on this point. [ 22 ] The evidence was also overwhelming to the effect that the home and all of its remaining contents were in a dismal and degraded state by the time that Rebecca and Kenneth took on the unenviable task of cleaning out the house after Florence was moved into care. The home was infested with rodents who ruined whatever was left in the attic, and many items stored elsewhere in the home. Kenneth and Rebecca both testified about this unpleasant task of throwing out large amounts of what was, in effect, garbage.

Might some of this have originally belonged to Sharon? Possibly. But I find that it had so deteriorated as to have no value. Legal claims [ 23 ] In order to make out any case against Rebecca, Sharon must show that Rebecca breached some legal duty owned to her. That duty would most logically be based on the law of contract, bailment or the tort of conversion. [ 24 ] If there was any agreement concerning the storage and safekeeping of these items, such an agreement would have been with Florence. There is no evidence to suggest that Rebecca ever assumed any responsibility to safeguard Sharon's possessions.

Moreover, this was a loose familial arrangement. [ 25 ] The fact that Rebecca at one time had her mother's power of attorney, and later was her mother’s executor, does not render her personally liable for anything that was done or neglected to be done by Florence.

As such, if items were allowed to be taken out of the house with or without Florence's knowledge, this does not translate into any type of responsibility for Rebecca. [ 26 ] Even at the end, when the house was being cleaned out, I accept Rebecca's evidence that most of what remained of Sharon's property was of little or no value. [ 27 ] To the extent that Rebecca may have knowingly denied Sharon her property, even without any contractual arrangements the law recognizes responsibility through the tort of conversion.

I am prepared to accept that Rebecca may have been presumptuous in selling the few items of value belonging to Sharon, without accounting for them. This can be recognized through a monetary order. [ 28 ] As to the claims by Sharon, her claims for recovery of personal property must fail. There is no evidence that Rebecca continues to possess any property belonging to Sharon. [ 29 ] Rebecca should be held responsible for retaining the proceeds of sale of those items mentioned earlier.

Had she sold them for less than their actual value, she could be responsible for a greater amount, but I find Sharon’s evidence of value to be fanciful and

unrealistic. [ 30 ] As such, I would order Rebecca to pay Sharon the sum of $1,190.00 that she collected from sales of the property. [ 31 ] In light of the very limited success achieved by Sharon and the considerable expense she has put Rebecca to, both in this court and on the appeal of the original order, I decline to award any costs. Order [ 32 ] In the result, the Defendant is ordered to pay to the Claimant the sum of $1,190.00. Eric K. Slone, Small Claims Court Adjudicator