IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120221

Docket: 15453

Registry:
Smithers

Between:

Rexford Bangle

Plaintiff

And

Michel Lafreniere
and Blackhawk Diamond Drilling Limited

Defendants

Before:
The Honourable Mr. Justice Sewell

Reasons for Judgment

[1]            
In this case I am asked to resolve a number of disputes between parties
who were for many years friends and business associates. Unfortunately in 2008
their association came to an acrimonious end. This litigation was commenced in
2009.

[2]            
The plaintiff Rexford Bangle is seeking damages against the defendant Michel
Lafreniere for trespass and breach of privacy. Mr. Bangle also claims that
Mr. Lafreniere owes him $40,000 pursuant to an oral contract for the
purchase and sale of chattels (the Chattels) located on an acreage and house
purchased from him by Mr. Lafreniere. In the alternative, Mr. Bangle
seeks damages against Mr. Lafreniere for conversion of the Chattels. Mr.
Bangle also claims that the defendant Blackhawk Diamond Drilling Limited (Blackhawk)
is indebted to him for services he rendered to Blackhawk in 2008.

[3]            
The defendants have filed a counterclaim. At the outset of the trial I
asked counsel to provide a Scott Schedule particularizing the amounts sought in
the counterclaim. Counsel provided the following summary of claims advanced by
way of counterclaim:

[4]            
Mr. Bangle and Mr. Lafreniere have known each other for many
years. For over 30 years both have been employed in the mineral drilling
industry. Mr. Bangle is a mechanic who fabricates and assembles drills. Mr. Lafreniere
is a drilling contractor. In 2007 he operated his business through Blackhawk.

[5]            
The events that have given rise to this litigation began in 2006. In
that year Mr. Bangle provided contracted services to a company called
Suisse Drilling on a job it had in a remote part of Mexico. The shares of
Suisse were owned partly by Mr. Lafreniere and partly by his son. Mr. Bangle
acknowledged that while he was in Mexico he frequently consumed beer on the job.
He had an accident while driving a truck back from the closest nearby town to
the drill site. The truck left the road and was seriously damaged. Mr. Bangle
denies that he was at fault for the accident. He attributed the accident to the
poor state of the roads in the area.

[6]            
As the result of this accident and complaints about his consuming beer
on the drilling job Mr. Bangle was asked to leave the Mexican job. He
returned to Canada and worked as a contractor in Manitoba and in Mongolia. He
returned to Smithers, B.C. in early 2007 and began working on a contract basis for
Blackhawk at its fabrication shop there.

[7]            
Mr. Bangle and his spouse, Linda Cole, owned a house, shop and
acreage located at 400 Upper Viewmount Road (the Viewmount Property) in
Smithers in joint tenancy. According to Mr. Bangle, he and Ms. Cole
separated in 2005. Ms. Cole commenced family law proceedings against Mr. Bangle.
In January 2007, Mr. Justice Burnyeat made a consent order
restraining Mr. Bangle and Ms. Cole from selling or alienating any
assets until the trial of the family law proceedings. Mr. Bangle resided
in the Viewmount Property from early 2007 to the beginning of May 2007.

[8]            
Mr. Lafreniere sold his own home in early 2007 and had to give up
possession to the purchaser by May 2007. For some time, Mr. Bangle and Mr. Lafreniere
had discussions about Mr. Lafreniere buying the Viewmount Property. Of
course Ms. Cole had to agree to any such acquisition as she was the
registered owner of a one half interest in the property. No firm agreement was
reached about the Viewmount Property prior to May 2007.

[9]            
In early May Mr. Bangle set out to drive to attend his brother’s
wedding on Vancouver Island. Unfortunately he lost control of his vehicle and
it left the road near Kamloops. Mr. Bangle suffered serious injuries in
the accident and was transported by ambulance to Royal Inland Hospital in
Kamloops. Initially, his principal injuries were a fractured spine and broken
ribs.

[10]        
Mr. Bangle was examined and evaluated shortly after admission by Dr. Chevalier
on May 3, 2007. Dr. Chevalier described him as alert and oriented to time
and place. The progress notes from the hospital for May 5 indicate that the
plan was to ambulate him with physiotherapy and discharge him when he was able
to walk. There is no indication of confusion or disorientation in the notes for
that day. Subsequently however, Mr. Bangle developed respiratory problems
and according to him, was put into an induced coma. Mr. Bangle was not
discharged from hospital until June 4. During his hospitalization he
experienced significant cognitive impairment that did not resolve itself until
sometime in June.

[11]        
This medical evidence relates to Mr. Bangle’s claim for trespass
and breach of privacy. Mr. Lafreniere moved into the house on the Viewmount
Property sometime in May 2007 but did not complete the purchase of the property
until December. Mr. Lafreniere’s evidence is that he visited Mr. Bangle
in the hospital in Kamloops on the Friday after he had been admitted, and Mr. Bangle
agreed that he could move into the property as it was unlikely that Mr. Bangle
would be able to return to Smithers for some time. Mr. Lafreniere
testified that Mr. Bangle was coherent and able to carry on a conversation
similar to that being conducted in the trial. He did however acknowledge that Mr. Bangle
was “in bad shape”.

[12]        
Mr. Lafreniere testified that he moved into the house on the
Viewmount Property in the third week of May. He stated that the house was in
some disarray when he moved in. He acknowledges that he moved Mr. Bangle’s
personal papers and effects into one room but denies that he read any of Mr. Bangle’s
papers. He says he moved in in accordance with the agreement he made with
Mr. Bangle. He also stated that he had informed Mr. Bangle that Ms. Cole
had appeared on the property and attempted to remove numerous items from it. Mr. Lafreniere
testified that this was one reason why Mr. Bangle was willing to allow him
to take up residence in the house.

[13]        
 Mr. Bangle has no recollection of any such agreement. His position
is that Mr. Lafreniere had no permission to move into the house or to move
Mr. Bangle’s papers and records into one room. His submission is that by
moving into the house and disturbing Mr. Bangle’s papers, Mr. Lafreniere
committed the torts of trespass and breach of privacy. His counsel submitted that
any consent that Mr. Bangle gave to Mr. Lafreniere to move into the
house was invalid because Mr. Bangle did not have the capacity to grant
any such consent due to the injuries he suffered in the car accident.

[14]        
There was some confusion in the evidence as to when Mr. Lafreniere
went to Kamloops to visit Mr. Bangle in the hospital. I find that Mr. Lafreniere
visited Mr. Bangle shortly after Mr. Bangle was admitted to Royal
Inland Hospital, that is, at about the same time that Mr. Bangle was
assessed by Dr. Chevalier. As noted above, Dr. Chevalier described Mr. Bangle
as being alert and oriented to time and place.

[15]        
I accept Mr. Lafreniere’s evidence that Mr. Bangle agreed to
allow him to move into the house before he did so in May 2007. I am unable to
find an adequate basis in the evidence to support any conclusion that Mr. Bangle
lacked the capacity to grant such consent. I am aware that Mr. Bangle’s
condition deteriorated subsequently in May 2007, but I find that he gave his
consent prior to that deterioration.

[16]        
My conclusion that I should accept Mr. Lafreniere’s evidence on
this issue is reinforced by the subsequent conduct of the parties. There is no
evidence that Mr. Bangle complained about Mr. Lafreniere moving into
the house when he did at any time before the parties fell out in late 2008. The
claims for trespass and for breach of privacy were added in an amendment made
to the statement of claim in December 2009. I note this is more than two years
after the alleged trespass.

[17]        
In addition, at the request of Mr. Bangle’s lawyer in the family
law case between Mr. Bangle and Ms. Cole, Mr. Lafreniere swore
an affidavit. This affidavit was filed and relied on by Mr. Bangle in that
case. In the affidavit Mr. Lafreniere deposed as follows at paras. 2
and 8.

2. I was to become caretaker for the property, as per an
agreement between Dick and myself, as I knew I would be selling the house I
lived in. Dick and I came to the agreement prior to Dick’s accident in early
May. We agreed once my house was sold, I would move into Dick’s property. As
Dick is out of town for long periods of time for his work it was agreed I could
live at the property rent free, and Dick, when he was in town, would also stay
at his property.

8. During the week of May 25,
2007 I moved into the property as per the agreement with Dick.

[18]        
Mr. Bangle’s reliance on the above evidence in the family law case
is inconsistent with his assertion that he did not agree that Mr. Lafreniere
could move into the house in May 2007. I also find that Mr. Bangle was aware
that Mr. Lafreniere had moved his papers into one room, and made no
complaint about that matter at the time. There was no evidence before me that
any actions of Mr. Lafreniere violated Mr. Bangle’s privacy rights. Accordingly
those claims must be dismissed.

[19]        
Mr. Bangle stayed with his sister Johanna Irwin in Kamloops for
some weeks after he was discharged from hospital. In June 2007 Mr. Bangle
and Ms. Irwin visited Mr. Lafreniere at the Viewmount Property.
According to Ms. Irwin and Mr. Bangle, during this visit Mr. Bangle
and Mr. Lafreniere reached an oral agreement whereby Mr. Lafreniere
agreed to purchase the Chattels for $50,000. Mr. Bangle says that the
price was reduced to $40,000, again orally, in December 2007 when Mr. Lafreniere
expressed dissatisfaction about an exploration camp that he had earlier purchased
from Mr. Bangle for $10,000. Mr. Bangle says that complaint was
resolved by a reduction of the purchase price of the Chattels from $50,000 to
$40,000.

[20]        
In June Ms. Irwin also obtained an appraisal of the Viewmount
Property. The appraised value was $390,000. In December 2007, Mr. Lafreniere,
Mr. Bangle and Ms. Cole executed an agreement for the purchase and
sale of the Viewmount Property for $390,000. That sale was completed later that
month.

[21]        
I am unable to conclude that Mr. Bangle and Mr. Lafreniere
entered into a binding contract for the purchase and sale of the Chattels as
alleged in the amended statement of claim. In this regard Mr. Bangle
confirmed in his evidence that he at no time disclosed any such agreement to Ms. Cole.
It is probable that no agreement with respect to the chattels could have been
made in 2007 without her consent, given the terms of Mr. Justice Burnyeat’s
January 22, 2007 order. There undoubtedly were negotiations between Mr. Bangle
and Mr. Lafreniere about the Chattels but I cannot find that those
negotiations led to a binding agreement. I accept Mr. Lafreniere’s
evidence that he was not interested in purchasing all of the Chattels and that
he did not agree to purchase them, or agree to pay $50,000 for them. I also
accept Mr. Lafreniere’s evidence that the asset he was principally
interested in obtaining was a backhoe owned by Mr. Bangle but
Mr. Bangle was not prepared to sell it to him.

[22]        
However I agree with counsel for Mr. Bangle that the chattels were
not included in the price that Mr. Lafreniere paid for the Viewmount Property,
that is, $390,000, as alleged in the amended Statement of Defence. The terms of
the agreement for the purchase of the Viewmount Property are clear in defining
what is included in the purchase. None of the Chattels in this case is listed in
the included items provision of the Agreement of Purchase and Sale.

[23]        
Mr. Bangle’s alternative position is that Mr. Lafreniere converted
the Chattels to his own use and thereby committed the tort of conversion. To
assess this claim it is necessary to resume the narrative of events from May
2007 onwards.

[24]        
Mr. Bangle was discharged from hospital in early June 2007 and
stayed with his sister in Kamloops until approximately the third week in June,
when he returned to Smithers. Sometime after Mr. Bangle returned to
Smithers he resumed working for Blackhawk as an independent contractor. He
split his time between working at the shop on the Viewmount Property and
Blackhawk’s shop in Smithers. He continued in that capacity until November 2008.
There is no dispute that in this period some of the Chattels were moved to
Blackhawk’s Smithers shop and others were used by Mr. Bangle in the shop
on the Viewmount Property. There is no evidence that Mr. Bangle objected
to the Chattels remaining on the Viewmount Property or being moved to the
Smithers shop as long as he continued to work as a contractor for Blackhawk.

[25]        
I conclude that Mr. Bangle was content with this arrangement as
long as he contracted with Blackhawk. I find that throughout this period
sporadic negotiations took place over the Chattels. Mr. Bangle wanted Mr. Lafreniere
to purchase the Chattels in bulk but Mr. Lafreniere was interested only in
some of them. No agreement was reached during this period.

[26]        
The evidence as to what happened after Mr. Bangle ceased to provide
services to Blackhawk is incomplete. It is apparent that disputes arose over
the amounts properly payable to Mr. Bangle for his services. It is also
admitted that at some point in 2009, Mr. Lafreniere refused to allow Mr. Bangle
to remove any chattels from the Viewmount Property. It is however unclear
whether this refusal extended to the household furniture or was limited to the
equipment and parts related to Mr. Bangle’s business. 

[27]        
In this case I found Mr. Lafreniere to be a credible witness. Where
his evidence conflicts with that of Mr. Bangle I prefer it. However Mr. Lafreniere
did not testify that he and Mr. Bangle actually agreed that the $390,000
he paid for the Viewmount Property was intended to be payment for the Chattels
as well as the real property. He did testify that he thought the price included
the Chattels but did not testify that Mr. Bangle had ever agreed to such
inclusion. Mr. Lafreniere’s subjective understanding of the subject matter
of the Viewmount Property purchase is of course not admissible to vary or
contradict the terms of the contract signed by the parties. As I have already
stated, the agreement did not include the Chattels.

[28]        
Given my finding that no agreement was reached for a sale of the Chattels,
there are three possible explanations why Mr. Bangle left all of them on
the Viewmount Property after it was sold to Mr. Lafreniere. The first is
that Mr. Bangle simply abandoned the chattels because the cost of moving
and storing them exceeded their value. The second is that he was content to
leave them in Mr. Lafreniere’s possession because he hoped to be able to
reach agreement on a sale and because he was utilizing some of them in his
contract work for Blackhawk. The third is a combination of the first two, that
is, he was hoping to sell some and had abandoned others.

[29]        
I have concluded that Mr. Bangle did continue to hope that he would
be able to reach agreement with Mr. Lafreniere for a sale of substantially
all of the Chattels. Both Mr. Bangle and his sister acknowledged in their
evidence that Mr. Bangle had no other place to store the Chattels. I
accept Mr. Lafreniere’s evidence that some of the Chattels were of no
value. This conclusion is supported by the fact that many of the items in Mr. Bangle’s
possession had been abandoned by his former employer when it shut down its
Smithers’ operations. In addition, there were some items that Mr. Bangle
did remove from the property in 2007. This indicates to me that Mr. Lafreniere
did not initially prevent the removal of the disputed Chattels and did not take
the position that the Chattels could not be removed until 2009, after he and Mr. Bangle
had fallen out.

[30]        
Notwithstanding the conclusions I have reached in the preceding
paragraph, I find that some of the Chattels did have a value. It is also
admitted that Mr. Lafreniere refused to allow Mr. Bangle to remove
any items in 2009. It is therefore apparent that Mr. Lafreniere did commit
the tort of conversion in 2009. However, I think that any such conversion would
extend only to those chattels that Mr. Bangle cannot reasonably be said to
have abandoned.

[31]        
Mr. Lafreniere’s continued possession of chattels abandoned by Mr. Bangle
is not conversion because in so doing, he was not interfering with Mr. Bangle’s
right of possession. I think the law in this regard is clearly set out in Arrow
Transfer Co. v. Royal Bank of Canada (1971), 19 D.L.R. (3d) 420, [1971]
B.C.J. No. 668,(BCCA) as follows;

30     In
order to explain the theory of conversion, I shall quote several passages that
were cited by Mr. McLoughlin. The first is from Bright’s Banking Law
and Practice in New Zealand, 2nd ed., p. 180:

The Action of Conversion

This form of action is applied
primarily to the case of goods found, and converted to his own use by the
finder of them, without the consent of the true owner.

A conversion is a wrongful interference with goods, such as
by taking, using or destroying them in a manner inconsistent with the owner’s
right of possession. To constitute the injury there must be some act of the
defendant repudiating the owner’s right, or some exercise of dominion
inconsistent with it. The wrongful act may be done in all innocence, but this
is no defence.

[32]        
As I have already indicated I found Mr. Lafreniere to be a credible
witness. I found that he gave his evidence in a straightforward manner. He
fairly acknowledged that many of the chattels that he retained did have
monetary value. In his evidence he did not attempt to convince me that he and Mr. Bangle
had agreed to include the Chattels in the $390,000 purchase of the Viewmount
Property. He did say that that was his understanding, but did not testify that
he had actually made an agreement with Mr. Bangle to that effect.

[33]        
On the other hand I have serious reservations about Mr. Bangle’s
reliability as a witness. I have no doubt that Mr. Bangle’s alcohol
abuse problems grew steadily worse from 2007 to 2009. This clearly impaired his
ability to recall events. His own sister described him as being in bad shape in
2008.

[34]        
I found his version of what occurred in May to June 2007 to be
disingenuous. If in fact he was of the view that Mr. Lafreniere had no
right to occupy the Viewmount Property in May 2007, he was being less than
candid with the court in filing, and relying on Mr. Lafreniere’s affidavit
evidence in the family law proceeding. In filing Mr. Lafreniere’s
affidavit, he was representing to the court that it was credible and reliable,
yet he would now have me believe that the agreement deposed to by
Mr. Lafreniere in the affidavit did not exist and that Mr. Lafreniere was
a trespasser in May 2007.

[35]        
I also have some reservations about the reliability of Ms. Irwin’s
evidence when it conflicts with that of Mr. Lafreniere. She was obviously attempting
to give her evidence in the most favourable light to assist her brother. I do
not think that Ms. Irwin was deliberately attempting to mislead me in her
evidence. However I do think that she has reconstructed her memories of the
events of 2007 in a manner favourable to her brother’s claims. I also take into
account that she failed to document the alleged agreement to sell the Chattels in
2007. In fact, in 2009, she prepared a list (exhibit 6) of disputed items with
value attached. Such a list would have been unnecessary if she was of the view
that Mr. Lafreniere had to buy them for $40,000. I think it far more
likely that this list was prepared to assist in negotiations over a possible sale
in 2009.

[36]        
It seems to me therefore, that the only valid claim that Mr. Bangle
has in this litigation with respect to the Chattels is for damages for conversion
of some of the Chattels described in exhibit 6.

[37]        
The evidence of the value of the Chattels in this case was
unsatisfactory. Mr. Bangle led no independent evidence to support the
values ascribed to the Chattels in exhibit 6. In my view the burden of proof
with respect to the value of the Chattels converted was on Mr. Bangle. It
is true that the Chattels were in the possession of Mr. Lafreniere or
Blackhawk. However most of the Chattels were available for inspection and
appraisal by Mr. Bangle in this proceeding.

[38]        
I do not think that this is a case in which the legal maxim that
everything is presumed against a wrongdoer applies. As indicated in the
preceding paragraph, Mr. Bangle had the ability to obtain an appraisal of
the Chattels. With a few minor exceptions, they remained in Smithers, in the
same condition they were in when they came into Mr. Lafreniere’s
possession. In Fill-More Seeds Inc. v. Victoria Seeds Inc. 2009 BCSC
1732, Voith J sets out the limits of the presumption at paras. 54 and 55
as follows:

[54]
Similarly, Fill-More relies on the maxim omnia praesumuntur contra
spoliatorem – everything is presumed against the spoiler or wrongdoer. In Ticketnet
Corporation v. Air Canada (1997), 105 O.A.C. 87, 154 D.L.R. (4th) 271 (C.A.), Laskin J.A., writing for the
Court, said in paras. 85 and 86:

[85] In my view, the maxim should only apply where the
wrongdoer’s acts make it difficult or impossible for the innocent party to
prove its loss or where the facts needed to prove the loss are known solely by
the wrongdoer and the wrongdoer does not disclose these facts to the innocent
party. As Professor Waddams writes supra, at para. 13.250:

However, the examples collected in the preceding paragraphs
and elsewhere in this work, indicate that in cases where the nature of the
wrong itself makes it difficult for the plaintiff to establish a loss, or where
the critical facts are peculiarly within the defendant’s knowledge, the
maximum, or its equivalent, will be invoked for the plaintiff’s benefit.

[86] See also Coldman v. Hill, [1919] 1 K.B. 443
(C.A.) at 457, per Scrutton L.J. and Kohler v. Thorold Natural Gas
Co. (1916), 52 S.C.R. 514 at 530-31, 27 D.L.R. 319, per Duff J.

[55]
The principle was also recently applied in Encorp Pacific Canada v.
Rocky Mountain Return Center Ltd., 2008 BCSC 779, where Madam Justice Griffin said at paras. 128
to 130:

128. The plaintiff cites the maxim that in assessing damages
"everything is presumed against the spoiler or wrongdoer", or omnia
praesumuntur contra spoliatorem. The authorities indicate that where the
nature of the wrong itself makes it difficult for the plaintiff to establish a
loss or where the critical facts are peculiarly within the defendant’s
knowledge, this maxim will be invoked for the plaintiff’s benefit: Ticketnet
Corp v. Air Canada (1997), 154 D.L.R. (4th) 271 at para. 85, 105 O.A.C. 87 (Ont. C.A.), leave to appeal to S.C.C.
refused, 161 D.L.R. (4th) viii.

129. Although the general burden of proof lies upon a
plaintiff to prove the loss for which compensation is claimed, courts have
consistently held that if a plaintiff establishes that a loss has been
suffered, the difficulty of determining the amount of it does not excuse the
wrongdoer from paying damages: S.M. Waddams, Law of Damages, loose-leaf
(Aurora, Ont.: Canada Law Book, 2007) at 13-2; Webster v. Ernst & Young,
2000 BCCA 229, 75 B.C.L.R. (3d) 169 at para. 22 leave to appeal to
S.C.C. refused, 2000 S.C.C.A. No. 263

[39]        
The above quoted passage makes it clear that the presumption applies
only in situations in which the wrongful conduct of the defendant makes it
impracticable for the plaintiff to value the loss. In this case the loss is the
value of the goods converted. With a few minor exceptions, the goods were
available for valuation.

[40]        
Mr. Bangle’s counsel did elicit Mr. Lafreniere’s opinion of
the value of the equipment from him in cross examination. In my view this
evidence should form the basis of a damage award for conversion. Mr. Lafreniere
cannot complain if these values are used. The following table summarizes the
values he ascribed to the chattels in his evidence:

[41]        
I therefore assess damages for conversion against Mr. Lafreniere in
the amount of $19,750.00. In assessing these damages, I have accepted Mr. Lafreniere’s
evidence with respect to the two horses for which Mr. Bangle claimed
damages. I find that Mr. Lafreniere agreed to keep the horses on the
Viewmount Property as a favour to Mr. Bangle. Mr. Lafreniere has
incurred substantial expense in caring for the animals, which in my view would
have had to have been taken into account on any assessment of damages with respect
to their alleged conversion.

[42]        
Similarly I accept that certain firearms left by Mr. Bangle on the
property had no value. They were admittedly old and had not been used for some
time. I do not think that Mr. Bangle had any intention of removing the
firearms and I find that he abandoned them when he sold the Viewmount Property
to Mr. Lafreniere.

[43]        
The second claim made by Mr. Bangle that requires consideration is
the claim for unpaid services rendered to Blackhawk in 2008. The evidence with
respect to this issue was somewhat difficult to follow. The claim is based on
an analysis Ms. Irwin prepared of the amounts Mr. Bangle invoiced to
and was paid by Blackhawk for services provided and expenses in 2008.

[44]        
Ms. Irwin prepared a revised spreadsheet setting out what she had
determined Mr. Bangle was short paid in 2008. The spreadsheet is somewhat
confusing but Ms. Irwin clarified her conclusions in her oral evidence.

[45]        
There
were two components to the claim as presented. The first was for non payment of
invoices for services. The second was for failure to reimburse Mr. Bangle
for expenses. The claims in issue are as follows;

[46]        
Ms. Irwin confirmed that Mr. Bangle had received an advance of
$5,512.50 on his March 30^th invoice, and was then mistakenly paid
this amount again at the end of the month and that that amount was a proper
deduction from this claim. In the course of the trial it became apparent that
Blackhawk had in fact paid the April 30^th invoice for $7,560.00 as
well as the claim for expenses of $1,219.18. The total of these two payments
was $8,779.18. It thus appears that Mr. Bangle was overpaid $5,512.50 and
short paid $4,690.25 resulting in a net overpayment to him of $822.25.

[47]        
This leaves only the Counterclaim for consideration. Except for the two
items dealt with below, the defendants led no admissible evidence to establish
any of the claims made in the counterclaim. The defendants claimed $10,000 for
a truck that was destroyed in Mexico while Mr. Bangle was driving it there.
However there was no evidence that either defendant owned the truck, what the
value of the truck was, or that Mr. Bangle was responsible for the
accident in which it was destroyed. The same comments apply to claims for
damage allegedly caused by Mr. Bangle to a car and the shop door at the
Viewmount Property. There was no admissible evidence that Mr. Bangle
removed fittings from a truck or of the value of such fittings. The defendants
failed to prove that Mr. Bangle made unauthorized charges of fuel to
Blackhawk. Finally, the evidence does not establish that Mr. Bangle ever
agreed to pay or was responsible for worker’s compensation assessments paid by
Blackhawk in respect of his contracted services.

[48]        
I have already taken into account in the overpayment of $5,512.50 to Mr. Bangle
in assessing the claim for 2008 services.

[49]        
This leaves only the claim that Mr. Bangle agreed to refund $5,000
of the purchase price paid to him by Mr. Lafreniere for the prospecting
camp. Mr. Lafreniere testified that Mr. Bangle sold him the camp for
$10,000. However it became apparent that there were deficiencies in the camp. According
to Mr. Lafreniere, he raised these deficiencies with Mr. Bangle, who
in turn agreed to refund one half of the purchase price but never did. Mr. Bangle’s
evidence was that Mr. Lafreniere’s complaints about the camp were dealt
with by an agreement to reduce the purchase price of the chattels from $50,000
to $40,000. He says this agreement was made sometime in December 2008.

[50]        
I accept Mr. Lafreniere’s evidence on this point. I have already
found that there was no agreement made to purchase the chattels for $50,000 or
at all. I think it far more likely that the parties agreed to a price reduction
for the camp, as testified to by Mr. Lafreniere. Accordingly I take this
$5,000 into account in determining the final entitlements of the parties.

Summary

[51]        
In the result I find that Mr. Bangle is entitled to judgment in the
amount of $13,927.75, being damages for conversion of $19,750 less the overpayment
for contract services of $822.25 and the unpaid refund of the camp purchase
price of $5,000.

[52]        
As the amount recovered is within the jurisdiction of the Provincial
Court under the Small Claims Act, R.S.B.C. 1996, c. 430, and the Small
Claims Court Monetary Regulation, it would appear that pursuant to Rule
14-1 (10) of the Supreme Court Civil Rules, Mr. Bangle is entitled
only to recover disbursements. However, the parties are granted leave to make
further submissions as to why costs should be dealt with on some other basis.

“Sewell J.”