Brett Roy - v. -, 2019 SKPC 45

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2019 SKPC 45 Date: August 8, 2019 File: 491 of 2018 Location: Regina _____________________________________________________________________________ Between: Brett Roy - and - Donald Roy Brett Roy For the Plaintiff Donald Roy For the Defendant _____________________________________________________________________________ JUDGMENT DEMONG , J _____________________________________________________________________________ Introduction

[ 1 ] The parties to this action are self-represented. Brett Roy is Donald Roy’s adult son. Brett transferred ownership of a 2004 Toyota Solara to Donald (hereafter “Don”) on or about March 26, 2016. He now seeks return of that vehicle or alternatively payment of the sum of $5,000.00, together with prejudgment interest and costs. [ 2 ] Don maintains that Brett gifted the vehicle to him and asks that Brett’s claim be dismissed with costs in his favour. He also seeks, by way of counterclaim, the sum of $2,000.00 in damages to reflect the sadness, anxiety, and distress that these court proceedings have caused him.

He seeks further damages in the sum of $1,000.00 for the time and expense that he has had to put forth in defending Brett’s claim. [ 3 ] The pleadings, as drafted, are not ideal. The Court is called upon to decide whether or not the transfer of this vehicle by Brett to Donald was an outright sale, a conditional sale, a loan, or a gift. [ 4 ] Brett’s statement of claim takes a bit of a scatter gun approach. It reads: My father Don Roy called me randomly out of the blue asking me if I had a car I could let him drive because he was laid off of work and could no longer drive a company car.

I said yes and wanted to help my father out so I agreed to let him use my 2004 Toyota Solara. When we met up we discussed the terms of the vehicle title transfer and set the value on the bill of sale at $5,000.00 on this date: See Bill of Sale. My father stated that he was on a very limited income and could give me $100 per month to buy the vehicle or I could have the vehicle back at any time if I asked for it back. I told him that I didn’t want to take the few dollars that he had to spend each month and that he could have it for as long as he needed it or until I wanted it back.

I demanded payment or return of the vehicle on this date: November 10, 2018. But my father Don Roy has refused to pay me or return the vehicle. Therefore I claim the sum of $5000 or the immediate return of the vehicle plus any interest and cost associated with the proceedings. The cost of these proceedings being $100 and such further cost as this court may deem just. [Sic] [ 5 ] Don’s reply was filed with the Court in an affidavit format. He asserts that every statement in the plaintiff’s claim is false. He proceeds to explain what really happened, and that

summary is consistent with the evidence that he tendered at trial which I will discuss shortly. The gist of his defence is that Brett unconditionally gifted the vehicle to him. He asserts that Brett did not adjust very well to Don’s divorce from Brett’s mother when Brett was only six years old, which causes anger issues. Over time and through the combination of drug use, trouble with the police, the recent death of his premature baby, and his subsequent break-up with his girlfriend - he has been having difficulty maintaining any meaningful relationship with his father.

Over the years this has caused the parties to become estranged. Don says that from time to time Brett attempts familial reconciliation by gifting goods and monies to Don in the hope and expectation that this will endear him to his family. He asserts that Brett becomes frustrated when the affection that he seeks is not reciprocated. Don asserts that this is precisely what has happened in relation to this dispute: that because his father has not been nicer to him, Brett seeks the return of a vehicle that was originally intended as a gift.

Evidence [ 6 ] Brett operates a deck cleaning company and also buys and sells vehicles as a side endeavour, presumably for profit. On or about December 5, 2015, Brett purchased a 2004 Toyota Solara, at auction, for the sum of $2,850.00. Inclusive of a buyer’s premium, PST, and GST, he paid a total of $3,355.00. [ 7 ] Brett says that he had not talked to his father for two or three years previous to this, but out of the blue, he received a call from his father in March of 2016 when his father was in the hospital recovering from back surgery.

He says that his father told him at that time that he had hurt his back, lost his job, could not use his work vehicle, had limited funds, and needed a car for a month or two. Brett stated that he had three or four vehicles and that he asked Don what kind of vehicle would be best for him. [ 8 ] Brett says that shortly afterwards he met with his father at his father’s home, brought the Solara with him, and offered it to his father for his use. Brett stated that originally he was simply going to give it to his father, but that his father insisted that he wanted to pay

him $100.00 per month for its use, or alternatively that he would agree to use it until Brett asked for it back. At this point Brett says he executed the SGI Transfer of Ownership document attached to the car’s registration, evidencing that the purchaser was Don Roy. He inserted the amount paid as $5,000.00. He did not say why he chose that value but maintains that this was done with Don’s agreement so that Don could register the vehicle under his own name.

Brett stated that he was aware, at the time of this transaction, that his dad had little or no money because he had recently lost his job. [ 9 ] Brett stated that a couple of months later he told his father that he would like to make certain improvements on the vehicle and, with Don’s consent, he took possession of it and paid approximately $4,000.00 for upgrades and repair. The exact type of work that was done to the vehicle has not been provided to the Court, nor have any invoices been provided identifying the type of work or the cost of that work. Brett returned the car back to Don a couple of weeks later.

He did not ask for any compensation from Don for these upgrades. [ 10 ] In reply to this evidence, Don asserts that Brett’s recollection is faulty and wrong, and arises from Don’s presumed long term use of cannabis. In cross-examination, he had Brett confirm that Brett’s recollection of these events was faulty. By example, by Brett’s recollection, the phone call was alleged to have occurred in March of 2016. Don’s back surgery was in March of 2014. Brett concedes that his recollection of the date may be wrong. [ 11 ] Don denies that he ever called Brett enquiring about obtaining a vehicle.

Rather, he says that Brett had somehow found out that Don was looking for a vehicle because he had left his job and the company car that came with it. He indicated that Brett contacted him and advised that he had just bought the Toyota and that Brett had brought it to Don’s home on or about March 26, 2016. At that time Don says that Brett offered to gift him the vehicle.

To allow the vehicle to be registered with SGI under Don’s name, Don says Brett indicated that he would put down a purchase price of $5,000.00 because Brett said that he “needed receipts for his business”. [ 12 ] Don asserts that he was overtaken with appreciation for this gift because, all things considered, it was a very nice car. Don also indicated that he was even more appreciative of the additional work that Brett had done on the vehicle. He says that Brett did this out the goodness of his heart and never asked for any money for having this additional work done.

Brett concedes that he never asked for any money for having made these additional upgrades. [ 13 ] While it may seem unusual for an estranged son to simply gift a vehicle to his father out of the blue, Don says that this form of behavior is not unusual for Brett. He says that Brett has often left envelopes of money for his father or handed him money as gifts over the years. He says that this is Brett’s way of ingratiating himself with Don and the family, but unfortunately, Brett becomes upset and aggravated because his gifts do not operate to continuously endear him to his family.

Brett’s brother, Marc, led evidence to the same effect. He says that in the past Brett has gifted money to Marc’s daughter and others, “as a means of attempting to gain power over that individual”. The clear inference I am invited to draw is that Brett’s relationship with Marc and Don waxes and wanes dependent on Brett’s often difficult personality and that Brett feels that if he gives something to someone, they become beholden to him and they must treat him more respectfully or more affectionately.

Marc gave additional evidence to the effect that Brett has often chided him, using words to this effect: “I gave Dad a car, what have you ever done for him?” [ 14 ] Don has also taken issue with Brett’s assertion that he requested that Brett give him a vehicle because he was short of funds, and he takes issue with the suggestion that he ever told Brett he was short of funds. In support of this he says that he has never shared his financial information with Brett.

He has tendered evidence showing that his chequing account at the requisite time held more than sufficient funds to accommodate the outright purchase of the vehicle if he had wanted to pay $5,000.00 for it. [ 15 ] All of that stated, Don says that he felt a little uncomfortable for not being asked to contribute money for the additional repairs and upgrades made to the vehicle. He says that in July of 2016, he asked Brett if he wanted some money for this work. Don says that Brett flatly declined this offer and, in support of his defence, Don has filed two screen shots of texts that Brett had sent to him.

The first one is a reply that Brett had sent when Don offered to pay him for some of that work. It reads: Nooo! Give me a break I don’t want any money from you. Don’t need it that’s ridiculous. Honestly, I just want you to drive something nice and was even thinking about swapping you cars… haha you can have the Benz if you love it. Haha I’d love to see you in the benz. Cars are a dime a dozen and I have a Lexus too and likely more piling up every week I find cars. The second text reads as follows: I love you dad and your insults don’t hurt my feelings. I feel bad for you. And Marc.

I thought after giving you a car I’d be welcome at your place like a father should be.

[16] I would point out that at trial Brett stated that if his father had been nice to him, Don could have had the car for as long as hewanted it. He also conceded that he has, from time to time, simply gifted his father cash with no expectation of getting it back - in theamount of perhaps $2,500.00. [17] Brett says that about one year after the transfer of this vehicle he had asked for the car to be returned to him and that his fatherhad refused. He says that he made the same request on perhaps as many as ten occasions in the years 2017 and 2018, by telephone andby text.

He cannot remember the precise dates, and he has no evidence of those texts as it is not his practice to retain texts. He furtherasserts that he asked for payment of the $5,000.00 some time in either July or August or perhaps the fall of 2018. His claim, as filed,indicate that he asked for either payment or return of the vehicle on November 10, 2018. [18] Don denies that he was ever asked for money.

He says that the first time he was ever made aware of the suggestion that he wasto pay $100.00 per month for the use of the car, or in partial payment of the ostensible $5,000.00 sale price, was when he received noticeof this claim in November of 2018. [19] Don maintains that Brett’s claim is simply unfounded. He says that there was no discussion regarding payment, and Brett, as hehas done so often in the past, gifted the vehicle to him in the hope that this would endear Brett to him.

He says that the fact that Brett hasmade generous gifts in the past, the fact that Brett effectively gifted the additional repairs, together with the fact that he has done thesame with Marc and his family, are all consistent with Brett’s behavioural patterns.

He argues that the texts sent to him should constitutecompelling evidence of Brett’s intention to gift, particularly when he uses phrases like: “give me a break, I don’t want any money fromyou”, “[I] was even thinking about swapping cars … haha you can have the Benz if you love it”, and “I thought that after giving you acar I’d be welcome at your place like a father should be” [Emphasis added]. [20] Don argues that Brett’s version of what transpired when the car was transferred is obviously made up because Brett’srecollection of a phone call from the hospital is off by two years.

He says that Brett could not possibly have known of his Dad’s financesbecause this was never shared with him, and he says that it is obviously wrong because Don had more than enough money to purchasethe car outright, if he so chose. [21] Don invites the court to conclude that no reasonable person would agree to pay $5,000.00 to purchase a vehicle that had beenbought for only $3,355.00 three months earlier. [22] Don properly notes that no money whatsoever has ever changed hands.

If the agreement was to pay $100.00 per month, he asks,why did Brett forego attempting to collect these monies earlier? [23] Finally, Don notes that he has put almost $1,000.00 of repair work into the car, something he says that he would not have done ifthe vehicle was not his. The Law and Analysis [24] The law in relation to inter vivos gifts is rather straightforward.

A gift is a gratuitous transfer of property from the owner of thatproperty to another, with the full intention on the part of both the donor and the donee that the property transferred need not be returnedbut should be retained as the donee’s own [See, Generally: McIntyre v Royal Trust Co., (MB KB), [1945] 2 WWR 364,affirmed (MB CA), [1946] 1 WWR 210 (Man CA). [25] When property is transferred to another person, other than in a situation where property is transferred from a parent to a childwho is a minor, there is a presumption of a resulting trust.

This simply means that where property is transferred from one person toanother, and the person who receives it has paid nothing for that transfer, then the law presumes that the transferee holds that propertyfor the benefit of the transferor. However, that presumption can be rebutted. The onus, in law, is on the person who received the propertyto convince the court, more likely than not, that the transfer was intended to operate as a gift.

Authority for this proposition can be foundin Pecore v Pecore, 2007 SCC 17, [2007] 1 SCR 795, a decision of the Supreme Court of Canada. [26] In addition, the law is clear that if a transfer of property is intended to operate as a gift, then the gifting party cannot, at a later

date, attempt to attach conditions to that gift, effectively making the gift subject to certain conditions. [See, Generally: Chase v Chase, (SKDC)]. [27] With due respect to Brett, where his evidence conflicts with the evidence of each of Marc and Roy, I prefer the evidence of thelatter two witnesses. Brett commenced his evidence by referring to a telephone conversation from Roy while Roy was in the hospital,something which could not have occurred in March of 2016, because Roy was in the hospital for his back injury two years earlier.

Hadthe conversation occurred at that earlier time - in 2014 - no explanation has been given as to why the transfer of the vehicle would havetaken place two full years later. If the foundation for his evidence is so clearly wrong, I find it difficult to believe that the remainder ofwhat he says occurred around that time is true. By comparison, Roy’s evidence as to what transpired is consistent with Brett’s habit ofperiodically gifting things to his dad in the hope of a more intimate family relationship.

It is completely consistent with Marc’s evidencethat Brett had taunted him about giving his dad a vehicle, and it is entirely consistent with the two texts that were offered into evidenceshowing that Brett not only did not want any money from his dad, not only suggested that his dad could have a Mercedes Benz insteadof the Toyota, but also that after giving his dad a car he should be more welcoming in his father’s home. Those turns of phrase,highlighted by me, convince me, more likely than not, that Brett sought, and clearly intended, to gift the vehicle to his father. Wordshave meaning.

These phrases cannot, in my view, be reasonably interpreted as suggesting that what Brett really intended was to effect aconditional sale of the vehicle with his father on the understanding that his dad would pay an inflated price for the car over a period ofmany months at the stated rate of $100.00 per month. [28] For these reasons, I am satisfied that Don has rebutted the legal presumption of resulting trust, and I conclude that the transfer ofthe vehicle to Don was a gift.

In so doing, I recognize that the transfer of ownership document made mention of a purchase price of$5,000.00 but I take little notice of that. It may be that Brett wanted to impress his father as to the value of the gift that was being made,or it may have been for the reasons that Don says Brett gave. Regardless of the reason, there is no compelling evidence before me toconclude that this was an outright sales transaction whereby the vehicle was sold for $5,000.00.

No money changed hands and, as Donhas properly pled, if it was an outright sale, then, in any event, more than two years has transpired since the transfer of possession andBrett’s claim would be barred by reason of the two year limitation period set forth in

section 5 of The Limitations Act, SS 2004, c L-16.1. [29] Don has counterclaimed, seeking damages in the sum of $3,000.00 for the anxiety, stress, and sadness, together with the time andthe expense that he has incurred by reason of his son’s lawsuit. In my respectful view, Brett’s claim does not meet the standard of whatmight be described as a malicious civil claim, nor can I conclude that Brett’s fundamental motivation in bringing this action was donewith the intention of causing his father mental distress.

It is obviously hard for a father to have to deal with a son who seeks to resolvebitter feelings by legal action, but Brett’s decision to sue may well have been based on what he perceived to be his strict legal rights. Noone enjoys the tribulations of proceeding to trial, but that alone does not give rise to a claim for mental distress. [30] Because Don has been successful, he is entitled to his costs, and costs are intended, in part, to offset the time and expense ofhaving to proceed to trial.

Earlier in these proceedings, when Brett had failed to show up on time for the first scheduled trial, he had beenordered, among other things, to deposit the sum of $500.00 with the Court in order to secure his subsequent attendance. These monieswere intended to act as security for costs in the event that Don was successful at trial. Don has been successful and I award Don the fullamount of costs which he can receive under The Small Claims Act, 2016, SS 2016, c S-50.12, which is, coincidentally, the sum of$500.00.

The Court Clerk is directed to pay this sum to Don Roy in satisfaction of his costs upon presentation by Don at the CourtClerk’s office. _______________________P. Demong, J