Marvin John Olson - v. -, 2012 SKPC 190

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 190 Date: December 21, 2012 File: 12-0503 Location: Prince Albert _____________________________________________________________________________ Between: Marvin John Olson - and - Sandra Mayer & Colleen Edith Anderson M. Simonot, Q.C. For the Plaintiff Sandra Mayer For the Defendant _____________________________________________________________________________ JUDGMENT R. J.

LANE , J _____________________________________________________________________________ [ 1 ] The Plaintiff, Marvin John Olson, hereinafter referred to as “Olson”, claims against the Defendants, Sandra Mayer, hereinafter referred to as “Mayer”, and Colleen Edith Anderson, hereinafter referred to as “Anderson”, for the loss of his 2001 GMC pickup truck and subsequent damages.

While the pleadings don’t specifically refer to the tort of “Conversion”, it is clear that the allegation of the Plaintiff against the Defendants is that they, or either of them, or each of them, converted his truck to the extent that he no longer had possession of it, and that he sustained damages as a result of that. [ 2 ] The Plaintiff was unable to successfully serve the Summons and Claim upon the Defendant Anderson, and chose, at the trial, to proceed against the Defendant Mayer only.

[ 3 ] The trial of this matter was held in Prince Albert, Saskatchewan on December 6, 2012. The Plaintiff Olson was represented by Marcel Simonot, Q.C., and the Defendant Mayer chose to represent herself. I shall review the evidence as it relates to the issue of what liability, if any, does the Defendant Mayer bear. If I find there is liability, I will then review the evidence as it relates to alleged losses sustained by the Plaintiff Olson. I. THE ISSUE OF LIABILITY [ 4 ] The Plaintiff Olson called as his first witness, Mr.

Mark Doell, Sales Manager at Mann Northway Chevrolet, a car dealership in Prince Albert, Saskatchewan. Mr. Doell testified that he had 10 years of experience in used vehicle sales, and two years experience as a sales manager relating to motor vehicles. He testified that he does appraisals of used vehicles in order to ascertain a price that his dealership would pay for a used vehicle, and then determine a price the dealership would sell the used vehicle for. I am satisfied that Mr. Doell is qualified, at a minimum, to offer an opinion on the fair market value on the 2001 GMC pickup in question. Mr.

Doell reviewed a document entitled “Wyatt Auto Wrecking Appraisal Sheet”, which was entered as P1 on this trial, and based on that sheet, Mr. Doell indicated that the said 2001 GMC pickup would have a minimum value of $2,500.00. [ 5 ] He also reviewed the SGI Accident History Sheet relating to the said pickup, which was entered as P2 on the trial, and he felt that this vehicle history was typical for an 11 year old pickup truck. He was cross-examined by the Defendant Mayer, and he indicated that $2,500.00 is what he would want to receive as a sale price for the truck.

I am satisfied that by this, he means, the fair market value of the 2001 pickup truck is $2,500.00. [ 6 ] The second witness for the Plaintiff Olson was Mr. Olson himself. He testified that the Defendant Anderson was an acquaintance who visited him from time to time. He said that in March of 2011, he was the registered owner of the said 2001 GMC pickup in question and that it was properly license plated in Saskatchewan and he tendered his then valid SGI registration as P3.

The vehicle was registered in his name. [ 7 ] He testified that he used the vehicle for personal use, such as: attending medical appointments, driving to pharmacies to purchase medications; driving to grocery stores, etc. He said he cannot use a public bus due to medical problems with his back and testified that he walks with two crutches when outdoors and uses a walker when he is in his own home. [ 8 ] He testified that Anderson came to his house in March of 2011, to visit him. He said his truck keys were hung in the kitchen on the wall.

He indicated that at one point during the visit he went to the washroom and upon his return, Anderson, his pickup truck keys, and his pickup truck were all gone. He testified that she did not have possession of his truck with his consent and that she did not have his consent to sell the truck. He obtained, through his solicitor, a bill of sale from Colleen Anderson to Wyatt’s Auto Wrecking which was tendered as P4 for identification. [ 9 ] He testified that Anderson never came to visit him again and it was unclear to the Court whether he actually ever saw her again.

However, he was clear that he never received any portion of the sale proceeds that were paid by the Defendant Mayer to the Defendant Anderson. He testified that he had heard that his truck was out at Wyatt’s Auto Wrecking but did not go there as he did not want to cause any problems. I don’t think that anything really turns on whether he attended Wyatt’s Auto Wrecking or not. [ 10 ] In cross-examination he was asked if his truck had ever been ordered off the road due to lack of road worthiness and he indicated, “Not to my knowledge”.

He was asked by the Defendant Mayer if he called Wyatt’s Auto Wrecking to ask for his truck back and he stated that he thought he had, and was told that he could have it back if he paid Wyatt’s Auto Wrecking $1,000.00 (I take that to mean the $900.00 purchase price cheque made payable to the Defendant Anderson plus the $100.00 cash paid to the Defendant Anderson). He was also asked if he reported the vehicle stolen to the police and he testified that indeed he had. [ 11 ] The Defendant Mayer testified on her own behalf and in her own defence.

She testified that she operates a business under the trade name Wyatt’s Auto Wrecking. She testified that she usually asks prospective sellers of motor vehicles for the vehicle bill of sale that is typically attached to the SGI registration form, but that many times, people will sell vehicles to her that are not currently registered and as a result of that, she on behalf of Wyatt’s Auto Wrecking, created her own bill of sale form that she could use.

She then reviewed documents related to her purchase of four different vehicles from Saskatchewan Government Insurance, and these documents were entered as D1, D2, D3 and D4. Most of these vehicles were newer than the GMC pickup in question and most of them cost less. However, unfortunately, she was not able to describe the mechanical or otherwise physical condition of the vehicles referred to in D1 to D4, leaving the Court no ability to compare values of D1 to D4 to the GMC pickup in question.

As such, this evidence did not help qualify the value of the said GMC pickup. [ 12 ] She acknowledged that the bill of sale marked as P4 was a copy of the bill of sale issued to the Defendant Anderson and at that point P4 was made a full exhibit in the trial. She testified that she did not think the pickup was road worthy and testified in her view it was only worth $500.00. [ 13 ] The second witness for the Defendant Mayer was her son, Brandon Mayer, who worked with his mom at Wyatt’s Auto Wrecking.

He testified he was working March 19, 2011, at Wyatt’s Auto Wrecking when the Defendant Anderson phoned to try and sell

the said 2001 pickup truck. She wanted $2,000.00 which he said he would not pay. She phoned a second time and was told to come out with the truck. When she arrived, Brandon test drove the vehicle and determined that the transmission worked fine; the truck started well; and while it had some damage, it was a decent truck. He said that the Defendant Anderson told him she had been evicted from her lodging and she needed to sell her truck in order to get a new damage deposit and rent money for a different place to live. They agreed on a price of $1,000.00.

He testified that he had no idea the truck was not her truck and that she had no right to sell it. The evidence would indicate that the Defendant Mayer issued a cheque payable to the Defendant Anderson in the amount of $900.00, plus gave the Defendant Anderson $100.00 cash (for a total of $1,000.00) so Anderson could hire a taxi for the trip back in to the City of Prince Albert. [ 14 ] He felt it would cost between $2,000.00 and $3,000.00 to repair the 2001 pickup truck (presumably for resale purposes). In cross-examination he testified that he was satisfied that the truck ran and drove well.

He testified that Anderson said she would come back with the registration which she had left at home. She told him she was the registered owner. Anderson never returned to Wyatt’s Auto Wrecking and never delivered the registration. [ 15 ] Brandon testified that its always best to have the seller’s registration, but its not always possible, especially when a vehicle has been sitting in a farmyard, for example, unregistered, for many years. II. LIABILITY:

a) Legislation [ 16 ] The Sale of Goods Act , R.S.S. 1978 and amendments thereto, is the Provincial statute that initially applies in this case. Section 2(1)(

h) defines “goods” as follows: Includes all chattels personal other than things in action or money and includes emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. [ 17 ] Thus it is clear that the said 2001 pickup truck falls within the definition of “ goods ” as above. [ 18 ]

Section 23 reads as follows: 23(1) Subject to this Act where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner the buyer acquires no better title to the goods than the seller had unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.

(2) Provided also that nothing in this Act affects: (

a) the provisions of The Factors Act or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof; (

b) the validity of any contract or sale under any special common law or statutory power of sale or under the order of a Court of competent jurisdiction. [ 19 ] I find on the evidence that the Plaintiff Olson was the owner of the 2001 pickup truck. I find on the evidence that the Defendant Anderson sold the pickup truck to the Defendant Mayer, and when she did so, she was not the owner, nor did she sell it under the authority of, or with the consent of, the owner.

In that circumstance, Anderson could not pass any better title to the truck to the Defendant Mayer than she, Anderson, had, and that was no title at all. I find the Plaintiff Olson did nothing that precluded him from denying Anderson ’ s authority to sell. Section 23(2) then says The Factors Act might, in the right circumstances, cloak the Defendant Anderson with authority to pass title to the truck to the purchaser Mayer. [ 20 ] Section 2(1)(

c) of The Factors Act , R.S.S. 1978 and amendments thereto, defines a “mercantile agent” as: Means a mercantile agent having, in the customary course of his business as such agent, authority either to sell goods or to consign goods for the purpose of sale, or to buy goods or to raise money on the security of goods;

[ 21 ] I find on the evidence that the Defendant Anderson was not a mercantile agent as defined in The Factors Act (i.e. a car salesman). [ 22 ] In the event I am wrong in my conclusion that Anderson was not a mercantile agent, as defined in The Factors Act , I then must examine whether s. 3 of The Factors Act , would allow the Defendant Anderson to pass the title to the truck to the Defendant Mayer. [ 23 ]

Section 3 of The Factors Act , sets out the following: 3(1) Where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods, a sale, pledge or other disposition of the goods made by him, when acting in the ordinary course of business of a mercantile agent, shall, subject to the provisions of this Act , be as valid as if he were expressly authorized by the owner of the goods to make the sale, pledge or other disposition: Provided that the person taking under the disposition acts in good faith and has not, at the time of the disposition, notice that the person making the disposition has not authority to make it.

(2) Where a mercantile agent has, with the consent of the owner, been in possession of goods or of the documents of title to goods, a sale, pledge or other disposition that would have been valid if the consent had continued, shall be valid notwithstanding the determination of the consent: Provided that the person taking under the disposition has not at the time thereof notice that the consent has been determined.

(3) Where a mercantile agent has obtained possession of any documents of title to goods by reason of his being or having been, with the consent of the owner, in possession of the goods represented thereby or of any other documents of title to the goods, his possession of the first mentioned documents shall, for the purposes of this Act, be deemed to be with the consent of the owner.

(4) For the purposes of this Act the consent of the owner shall be presumed in the absence of evidence to the contrary. [ 24 ] In each instance later described in s. 3 of The Factors Act the mercantile agent must be in possession of the goods with the consent of the owner. I find that Anderson was never in possession of the 2001 pickup with the consent of the Plaintiff Olson. [ 25 ] Thus, even though the Defendant Mayer acted in good faith throughout, she did not obtain ownership or title to the 2001 pickup and is therefore liable to the Plaintiff Olson in damages. III.

DAMAGE QUANTIFICATION: [ 26 ] I am satisfied on the evidence that the said 2001 pickup truck had a fair market value at the time the Defendant Anderson “ sold ” it to the Defendant Mayer of $2,500.00. That is based on my accepting the evidence of the first witness called by the Plaintiff, Mr. Mark Doell.

Thus, the Defendant Mayer is liable to the Plaintiff Olson for that sum of money. [ 27 ] The next question is whether or not any other damages as claimed by Olson can be found against the Defendant Mayer. [ 28 ] The Plaintiff Olson testified that it took him four months before he was able to save enough money to buy another vehicle. He testified that in the meanwhile, because the condition of his back would not allow him to ride on busses, that he had to hire taxis. He testified that at the time that he was without a vehicle, he had been ordered by the Court to attend anger management classes.

He indicated that he had to take five round trips per week for a period of five weeks. He indicated that the round trips were $28.00 and therefore claimed $560.00 for that. [ 29 ] He also indicated that he had to purchase groceries, and by that he had to travel to Superstore, which I take judicial notice, is located on the corner of 15 th Street East and 6 th Avenue East in the City of Prince Albert. He testified that he would go to buy groceries

two to three times a month for the four month period, so I place that at eight total trips for groceries at between $35.00 and $40.00 perround trip. Thus, I say it is $37.50 per round trip, the total damage claimed there is $300.00. [30] He further testified that he had to purchase medications once per month at $26.00 to $28.00 per round trip, so I will make that$27.00 per round trip for four such trips for a total loss of $108.00. [31] Finally, he testified that he had to do his banking once per week over a period of four months, for a total of 16 trips and anaverage of $40.00 per round trip.

He claimed he did his banking at the Toronto Dominion Bank at Carlton Court, which is in the southeast part of the City of Prince Albert. If I were to award damages in full for this claim it would come to $640.00. [32] On the issue of financial loss consequent to the tort of Conversion, the New Brunswick Court of Appeal had occasion tocomment in the case of Ford Credit Canada Ltd. v. Russell, (NB CA), [1980] N.B.J. No. 292, 32 N.B.R. (2d) 612.

Inthat case the Court essentially held that the value of the goods converted are one portion of the damages, but there may be circumstanceswhere other damages flowing from the loss of use of the goods converted, may well be awarded. [33] In that decision, the Plaintiff’s motor vehicle was damaged by the negligence of the Defendant. The Plaintiff delivered hismotor vehicle for repair and when he could not afford to pay for the repairs, the auto repair company retained possession of thePlaintiff’s vehicle until he could pay.

During that time, the Plaintiff had to hire transportation until he raised enough money to pay forthe repairs and could re-take possession of his vehicle. In that case, the Court held that notwithstanding the Plaintiff’s impecuniousitythe Plaintiff simply had no other alternative but to hire another vehicle.

Dredger Liesbosch v. the “Edison”, [1933] A.C. 449, had heldthat where an impecunious Plaintiff spends money in order to continue enjoying the use of the product that was converted, the Defendantis not liable if the only reason was that the Plaintiff did not have money to replace the item converted. [34] That decision has been subsequently qualified and distinguished until we arrive at the decision of Mattocks v. Mann, [1993]R.T.R. 13, that is a decision of the Court of Appeal of England.

Quite clearly, the law now is that if an impecunious person had two ormore choices of replacing the converted goods, and chose the more expensive route, then the Plaintiff may be barred from making claimfor that. However, in the case at bar, Mr. Olson simply didn’t have any money to replace his vehicle for a period of four months. Furthermore, he testified, and I accept it as true, that he was not able to use public transportation such a city busses, due to his backproblems. [35] Accordingly, I am prepared to award the Plaintiff Olson damages for loss of the use of his vehicle.

The question however, ishow much? [36] The Court ordered anger management classes at the McIntosh Mall are something that I am prepared to award the fulldamages for. There is no evidence that any other banks or grocery stores were anywhere near the McIntosh Mall, and accordingly Iwould award damages in the amount of $560.00. [37] Insofar as groceries and pharmaceuticals are concerned, I am satisfied that he could have accomplished both of those tasks inone trip, and accordingly I am only willing to award eight trips by taxi to Superstore for total damages of $300.00.

Thus I am notallowing any claim for trips to pick up medications. [38] With respect to trips to do his banking, I am not satisfied that he would need to travel to his bank at Carlton Court Plaza onceper week over a period of four months. Once he realized the cost of travelling from his home to his bank, I am satisfied that he wouldminimize those numbers of trips. There is no evidence before the Court, other than his testimony, that he made 16 trips during thatperiod of time.

Accordingly, I will award him compensation for half the number of trips he claims, which is eight trips times $40.00 pertrip for a total of $320.00. IV. DAMAGE

SUMMARY: 1. Loss of Motor Vehicle - fair market value - this isthe damage award for the loss of the motorvehicle. $2,500.00 2. Special damages for loss of use of motor vehicle. $1,180.00 Total $3,680.00 [39] Therefore the Plaintiff shall have judgment against the Defendant Mayer in the sum of $3,680.00. In addition, the Plaintiffshall have costs of issuing the summons of $60.00 and Prejudgment interest on the loss of the motor vehicle of $2,500.00, from March

19, 2011, to the date of judgment. [ 40 ] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 21 st day of December, A.D. 2012. ___________________________________ R. J. Lane, J