WILLIAM THOMAS ZINCK Claimant - v. -, 2014 NSSM 31

Claim No: 426013 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Zinck v. Day, 2014 NSSM 31 BETWEEN: WILLIAM THOMAS ZINCK Claimant - and - KEVIN DAY and WRECKS R US AUTO SALVAGE INCORPORATED Defendants REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Dartmouth, Nova Scotia on May 20, 2014 Decision rendered on May 21, 2014 APPEARANCES For the Claimant David Grant

Counsel For the Defendant self-represented BY THE COURT: 1 The Claimant seeks alternatively $3,000.00 or the delivery of three large fibreglass tanks that he purchased from the Defendant. 2 The Defendant seeks by way of counterclaim the sum of $2,700.00 as storage fees for having held onto these tanks for six or more years. 3 The Court heard from the two individuals involved. There are some discrepancies in their versions of the events.

The Claimant ’ s evidence 4 The Claimant testified that it was in the spring of 2007 that he became aware that the Defendant, who operates a salvage yard and auto mechanics business, had available three large fibreglass tanks that had originally been used as underground gasoline storage tanks. His plan was to use them in the construction of a dock.

He says that he told the Defendant that he was not quite ready to take them, and that the Defendant said that this did not present a problem because they were not in the way. 5 The Claimant says that the agreed upon price was $3,000.00, but that this was modified to $2,800.00 plus some $200.00 worth of lobsters. (The Claimant was at that time a lobster fisherman.) 6 The Claimant says that he and the Defendant saw one another from time to time over the ensuing years, and that nothing was said about the tanks until late 2012 when he told the Defendant that he was no longer in need of the tanks and that he would be trying to sell them.

About a year later, in December 2013, the Claimant had a potential buyer and he sent him down to the Defendant ’ s yard to see them, first alerting the Defendant. The Defendant said that there was no way to remove them right then because they were all snowed in and blocked by cars. Still the Claimant wanted to allow his buyer to look at them. 7 In a follow up conversation, the Defendant confessed to the Claimant that he had sold the tanks and was holding a $1,000.00 deposit on them. He told the Claimant that he figured that he had abandoned them.

In a later conversation, the Defendant told the Claimant that he was entitled to charge for storage and that the storage fees had grown to the point where they equalled or exceeded the original price, and that he owed nothing to the Claimant. The Defendant ’ s version 8 The Defendant ’ s version of events differs in a few key respects. He testified that it was spring 2006, not 2007. He also says that the price was $1,800.00 plus “ a feed of lobsters ” as opposed to $2,800.00. 9 None of this can be confirmed as there is no documentation.

He said that the tanks actually belonged to his mother - who inherited them from his recently deceased father - and that he money went straight to her.

10 The Defendant did not have a recollection of having met the Claimant as many times over the years as the Claimant stated. Hesaid that he learned that the Claimant had sold his boat and lobster licence and moved away from the area, so he assumed that he wasjust no longer interested in the tanks. 11 The Defendant admits that he took a $1,000.00 deposit from another customer, which he says he has returned pending the court’sdecision. 12 The Defendant says that he was advised by his lawyer that he could charge storage fees, and he calculates them at $150.00 pertank, per year, for six years, which equals $2,700.00.

He counterclaims for this amount. 13 The Defendant testified that his salvage yard takes up part of a 7 acre property, and that he has approximately 300 vehicles storedthere. He says that the tanks took up space that could have been used to store vehicles. He also conceded that he had never tried tocontact the Claimant to insist that he remove his tanks, or to advise him that storage fees might be charged. Decision 14 There is no question that the Claimant was the lawful owner of the tanks in question, having bought and paid for them. Propertyrights are not easily lost.

At some point one could consider property abandoned, if the evidence points that way. The law ofabandonment is well summarized in the Saskatchewan case of Stewart v. Gustafson (SK KB), 1998 CarswellSask581, [1998] S.J. No. 614, [1999] 4 W.W.R. 695, 171 Sask. R. 27: 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 former owner.

Itmay 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 thechattel, coupled with sufficient acts of divestment...." 16 The act of abandonment is essentially a question of fact to be proven by the party relying on the principle of abandonment: Simpsonv.

Gowers (1981), (ON CA), 121 D.L.R. (3d) 709 (Ont. C.A.); Property Law Cases, Text and Materials by Mendes DaCosta and Richard J. Balfour (Toronto: Emond-Montgomery Limited, 1982) p. 114, c. 3. The burden of proof is an onerous one wherethe owner's actions do not clearly manifest an intention to surrender ownership of the chattel in issue. In the result, intention often mustbe inferred by using the approach commonly employed in criminal law where intention is of paramount importance.

17 The authorities reviewed suggest that the following factors in the appropriate factual context support an inference of intention to abandon: (1) passage of time; (2) nature of the transaction; and (3) the owner's conduct. I am of the view the nature and value of the property also may be an indicator of intent. 15 I do not find sufficient proof here of an intention to abandon the tanks.

There is nothing pointing to "a giving up, a total desertion, and absolute relinquishment." One might find a degree of apparent “ indifference ” but nothing to support any “ acts of divestment. ” The onus of proof of abandonment is on the Defendant, and he has not satisfied this onus on a balance of probabilities, let alone a more stringent standard that might apply. So the tanks remain the property of the Claimant. 16 The next question is whether the Defendant has any right to claim storage fees.

This would have to arise either by way of an express agreement, or an implied agreement, that the Defendant should be compensated for allowing the tanks to sit on his property. 17 There was no express agreement. Neither party says there was. 18 I am also unable to find that there was any implied agreement. The Claimant knew that the Defendant had a large property and he had no reason to believe that storing the tanks was a hardship or that it cost the Defendant anything.

One of the tests to see if there might have been an implied agreement is to ask whether a casual onlooker listening in to the negotiation would conclude that the parties must have had an unspoken agreement to that effect. On the evidence, such a finding is not possible. 19 Neither party likely expected the tanks to sit there for six to seven years, and I doubt that either of them even had the question of storage fees cross their minds. 20 The only other basis for compensating the Defendant would be on a quantum meruit basis.

This is where the court finds that there was an agreement that the service was not being provided gratuitously, but no amount was ever agreed to. 21 This principle does not help the Defendant because there is no basis to find that there was any agreement that the service was to be compensated. So one never gets to the question of compensation. 22 I am also not convinced that the storing of the tanks cost the Defendant anything, or even inconvenienced him in anything more than a trivial way. These are not the kind of goods that could suffer damage or theft, and therefore needed to be protected.

I am not convinced that the space they took up deprived the Defendant of any opportunities. Obviously, nothing else could be stored on precisely the same spot, but it is a large yard. 23 This all would have been different had the Defendant given the Claimant notice, at some point, that he had to remove the tanks or else pay storage. This did not happen. 24 I accordingly find that there was no basis for the Defendant to claim storage fees.

It is accordingly unnecessary to consider the provisions of the Warehousemen's Lien Act , since the procedures set out in that statute only apply to provide a lien where there is a “ warehouseman ” to whom goods are “ deposited with him for storage. ” People placing goods for storage with a warehouseman would be deemed to expect that this is not a gratuitous service. 25 The question of whether the transaction happened in 2006 or 2007 need not be answered.

Nor does the issue of whether it was $2,800.00 or $1,800.00, since it is my finding that the appropriate remedy is that the Claimant be entitled to regain possession of the tanks. The order will provide that the Defendant is to deliver up the tanks to the Claimant. If the tanks are not delivered up on demand, the Claimant may return to the court to ask for a monetary remedy.

26 It makes sense that there should be a time limit on the Claimant removing the tanks. The order will provide that he must do so within 90 days of the date of the order. Should this not occur, the tanks will be deemed to have been abandoned. 27 Nothing in this order should prevent the parties from making any other arrangement, such as allowing them to be taken by a third party purchaser, with proceeds going to the Claimant. 28 The order shall further provide that the Claimant is entitled to his costs of $96.80. Eric K. Slone, Adjudicator