Roschuk v. Relf et al., 2011 MBCA 37

Citation: Roschuk v. Relf et al., 2011 MBCA 37 Date: 20110420 Docket: AI 11-30-07541 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : LORI ROSCHUK and GERALD ROSCHUK ) R. W. Schwartz ) for the Applicants (Claimants) (Respondents) Respondents ) ) L. Roschuk and G.

Roschuk - and - ) on their own behalf ) KEITH RELF and EXTREME ) Chambers motion heard: PERFORMANCE EXHAUST LTD. ) April 7, 2011 ) (Defendants) (Appellants) Applicants ) Decision pronounced: ) April 20, 2011 FREEDMAN J.A. 1 The applicants seek leave to appeal a decision of a judge of the Court of Queen’s Bench sitting as a small claims appeal judge under The Court of Queen’s Bench Small Claims Practices Act , C.C.S.M., c. C285 (the Act ).

In a trial de novo under the Act , the judge had given judgment for the respondents for the value of certain equipment that was stolen from their vehicle while it was in the possession of the applicants. 2

Section 15 of the Act permits an appeal, with leave of a judge of this court, on a question of law only. While neither party to this application filed a motion brief or any authorities, I am nevertheless satisfied as to the criteria applicable to this application. Among a number of cases that could be cited that discuss the criteria, see the comments of Twaddle J.A. in Penta Protective Coatings Ltd. v. Scott , 2006 MBCA 50 (at para. 2 ):

Section 15 of The Court of Queen’s Bench Small Claims Practices Act , R.S.M. 1987, c. C285, permits an appeal to this court, but only where the issue to be argued on appeal is one of law alone and, even then, only when a judge of this court has granted leave to appeal. Generally speaking, leave will only be granted where (

a) the legal question is one of importance which merits the attention of the court: see, e.g., 1379025 Ontario Ltd. v. Winnipeg (City) Assessor , [2005] M.J. No. 99 at para. 2 (QL), 2005 MBCA 46 , and (

b) the applicant demonstrates the proposed appeal to have arguable merit: see Pelisek v. Pelisek (2003), 173 Man.R. (2d) 192 , 2003 MBCA 55 . 3 Thus, the applicants must show that: 1) the question raised is a question of law alone; 2) the issue is one of sufficient importance to engage the attention of the court; and 3) they have an arguable case, that is, one which has a reasonable prospect of success.

4 The relevant facts, drawn from the judge’s reasons, are as follows. The respondents (wife and husband) owned a vehiclein which they wanted to have installed a specialized “lift system.” The applicants carry on a motor vehicle repair business in acommercial mall. The respondents purchased the necessary parts and arranged with the applicants to install them. 5 On March 31, 2010, the respondents brought the vehicle to the applicants’ shop. They had been told by the applicants thatthe vehicle would have to be left there overnight. The parts were in the vehicle’s rear storage area under a cover.

The respondents knewthat the vehicle would have to remain at least one night at the shop before the work could be completed. The vehicle had three differentalarm systems, operable through a fob on the key set. A fob/key set was given to the applicants when the vehicle was delivered to them. 6 The next morning the applicants advised the respondents that the vehicle had been broken into overnight and all the partshad been stolen. The judge said (at para. 6): ….

The position maintained throughout by the defendants was that although the vehicle had been moved from where it had originallybeen parked and left by the [claimants], it had been locked by them when the decision was made to leave it in the parking lot overnight. The [claimants] immediately attended the defendants’ shop, observed the damage in question, and upon inspection of the entire vehicle,noted that there was no signs of any forced entry to the vehicle or any apparent damage on any part of the exterior of the vehicle. 7 The respondents sued the applicants for the value of the stolen parts.

The judge agreed with the respondents that theapplicants were responsible for the loss, stating (at paras. 10-12): …. I have no hesitation, with particular reference to the other authority referred to by the defendants [Sabean v. Moran (1991), (NB KB), 117 N.B.R. (2d) 329 (N.B. Q.B.)], in concluding that the defendants were, in fact, “bailees for reward” in theclassic sense.

When the [claimants] decided to leave their vehicle that day it was done so with the knowledge of everyone that the workon the vehicle could not be completed in that one day, even if the defendants were able to start work later that day (as was discussed). Iam satisfied that the [claimants] were told that the defendants would make an effort to start the work later that day, if possible. Anyresponsibility for the scheduling error originally made by Samantha, lies with the defendants. I appreciate that there was a difference inthe recollections of Mr. Roschuk and Mr.

Relf as to their conversations about this issue on March 31, when the [claimants] brought thevehicle into the shop and first learned that there was a problem with the scheduling. On this point, I prefer and accept the evidence ofMr. Roschuk to the effect that they were told that the defendants would start, or at least do their best to start, work on the vehicle laterthat day, recognizing that it would not be completed until at least the next day. I adopt the legal principles articulated by Jones J. in Sabean, supra, as follows: [9] Mr. Moran in this instance was a bailee for value or reward.

His obligation was to take care of the bailed goods as a prudent ownerwould in similar circumstances. Longley v. Mitchell Fur Co. (1983), (NB CA), 45 N.B.R. (2d) 78; 118 A.P.R. 78,at p. 80, per Stratton, J.A., (as he then was): There can I think be no doubt that the Mitchell Fur Co. Ltd. was a bailee for reward and as such owed a duty to the bailor to take suchdue and proper care of the bailed goods as a prudent owner, in similar circumstances, might reasonably be expected to take of his or herown goods.

In other words, a bailee must, in safeguarding the property of a bailor, do what a reasonably prudent person would do tosafeguard his or her own property. And the onus is upon the bailee to show that any loss which occurs did not result from his neglect touse the required degree of care and diligence. However, a bailee is not an insurer. Therefore, if bailed goods are stolen and the baileecan establish that he took reasonable care of the goods, and that he was not guilty of any negligence which was the proximate cause oftheir loss, the bailee will not normally be held liable. In

summary, once a property owner (the bailor) establishes that loss or damage to bailed goods occurred while they were in thepossession of a “bailee”, the onus shifts to the bailee to prove, on a balance of probabilities, that it was not negligent; that is, that thebailee took reasonable care of the goods or any failure to take reasonable care did not contribute to any loss. 8 The judge noted that it had not been explained why the alarm systems had not worked, especially since one system wasdesigned to lock the doors automatically if they were left unlocked.

The judge concluded that the vehicle was probably either entered bysomeone who had access to the keys, or that the vehicle was moved by the applicants to another nearby lot (undisputed) andinadvertently left unlocked and the alarm systems failed. The applicants’ employee who moved the vehicle could not say that he actuallylocked the vehicle before putting the keys back in the office, although he said it was his usual practice to do that when he movedvehicles.

9 The judge then said (at paras. 16-17): Once the [claimants] established that the theft of their property occurred while the property was in the defendants’ possession (as a baileefor reward), the onus of proof shifts to the defendants to negate negligence. To do so, the defendants must establish, on balance, thatthey either took reasonable care of the property or that their failure to take reasonable care did not contribute to the loss.

As difficult as it may be to satisfy, the onus lies on the defendants to disprove negligence. …. 10 He concluded that the evidence fell short of discharging the burden of proof and gave judgment for the respondents. 11 In their notice of motion seeking leave to appeal, the applicants assert that the judge erred in finding them to be bailees forreward, and that he erred in failing to conclude that the respondents were estopped from claiming against the applicants because therespondents had voluntarily left the vehicle in a public parking lot overnight.

In oral argument, the applicants reiterated those as the legalissues on which leave was sought. While acknowledging that they could not appeal the judge’s factual conclusions, they argued that theessential facts were not in issue. 12 In my view, the questions on which leave is sought are not questions of law only. An oft-cited explanation of the nature ofquestions that arise in legal proceedings was given by Iacobucci J. in Canada (Director of Investigation and Research) v.

Southam Inc., (SCC), [1997] 1 S.C.R. 748 (at para. 35): …. … [Q]uestions of law are questions about what the correct legal test is; questions of fact are questions about what actually took placebetween the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. …. 13 Iacobucci J. explained further (ibid.): …. A simple example will illustrate these concepts. In the law of tort, the question what “negligence” means is a question of law. Thequestion whether the defendant did this or that is a question of fact.

And, once it has been decided that the applicable standard is one ofnegligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. …. 14 The applicants did not argue before me that the judge misunderstood or incorrectly stated the elements required to existbefore a person can be said to be a bailee for reward. They did not argue that he incorrectly assigned to them the burden of disprovingnegligence. Either of those arguments would raise a question of law only. Rather, they argued that they were not bailees for reward.

Such a determination could only be made by this court by deciding whether, on the facts of the situation, the legal test was satisfied. That is a clear illustration of the classic explanation given in Southam of a question of mixed law and fact. Leave cannot be granted onsuch a question. 15 Similarly, the second question would also necessarily involve an examination of the facts, even if not in dispute, and adetermination of whether those facts warranted a finding of estoppel.

Again, this raises, in my view, a question of mixed law and fact. 16 I must add that, while the first question arguably could be important to persons in the same line of work as the applicantsand, thus, that question might meet the “sufficient importance” part of the test, the second question, in my view, could have nosignificance (beyond its importance to these parties) that could justify consideration by the full court. I need not consider whether eitherissue raises an arguable case. 17 The questions proposed are not questions of law only, and leave is denied, with costs. J.A.