IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Pettipas v. Pettipas, |
| 2010 BCSC 1669 |
Date: 20101126
Docket: S112294
Registry:
New Westminster
Between:
Michael Patterson
Pettipas
Plaintiff
And
Harry Frances
Pettipas
Defendant
And
Blake Pettipas
Defendant
by Counterclaim
Before:
The Honourable Madam Justice Bruce
Reasons for Judgment
The Plaintiff: | Appearing in Person |
Counsel for the Defendant, Harry Francis Pettipas: | I. MacKinnon |
Place and Date of Trial: | New Westminster, B.C. |
Place and Date of Judgment: | New Westminster, B.C. November 26, 2010 |
INTRODUCTION
[1]
The defendant, Harry Pettipas, has four sons: Gregory, Blake, Trevor and
Michael. Three of Harrys four sons commenced separate actions against him to
recover a share of the profits realized upon the sale of property located at 56th
Avenue, in Langley, B.C. Gregory and Blakes actions were dismissed and no
appeals were filed. The remaining action before me involves a claim by Michael
that he is entitled to a share in the sale proceeds from the 56th
Avenue property due to work he performed on the property. Michael also claims
that he is entitled to an interest in a company operated by Harry entitled
Tripett Enterprises Inc. (Tripett), which manufactures dog food made from
tripe. Lastly, Michael claims restitution for the work done in respect of a
company called GLT Gemstar Limousine Technologies International Inc. (GLT).
Michael developed a prototype racing vehicle and he alleges that Harry agreed
to become a joint venture partner in the marketing and sale of the prototype.
As a result of Harrys failure to honour the terms of their joint venture
agreement, Michael claims GLT lost substantial profits and he was never paid
the wages promised by his father.
[2]
Harry opposes the relief claimed by Michael. Harry maintains that
Michael at no time had an interest in Tripett. Harry agrees that he holds his
shares in GLT in trust for Michael, but denies that there was any contract for
services between himself and Michael regarding this company. Harry also denies
that anything is owing to Michael due to contributions made by Michael to GLT.
Lastly, Harry says that Michael made minimal contributions to the improvement
of the 56th Avenue property and what work was done was for Michaels
own benefit. Harry maintains that Michael did not pay him any monies for the
purchase or upkeep of the 56th Avenue property apart from $400 for
rent in October 2007.
[3]
Harrys counterclaim against Michael is for rent from September 2007 to
July 1, 2008 due to his use of the shop and occupation of the residence, both
of which are located on the 56th Avenue property. The agreement was
that Michael would pay $400 per month for the shop and $200 per month for a
portion of the residence. Harry also claims damages against Michael for
wrongful confinement, assault and battery arising out of the events of April
22, 2008. Lastly, Harry claims damages against Michael for fraudulently
transferring ownership of his 2003 Cadillac into Blakes name and subsequently
selling the Cadillac to a third party. The claim against Blake by counterclaim
has been abandoned due to his passing prior to the trial.
[4]
Michael opposes the relief claimed by Harry in the counterclaim. Michael
maintains that Harry assaulted him on April 22, 2008 and that he only
restrained Harry to prevent any further assaults. Michael denies that Harry
was detained against his will and claims that the Cadillac was seized under the
Repairers Lien Act, R.S.B.C. 1996, c. 404 [Repairers Lien Act].
ISSUES
[5]
Michaels claim raises the following issues:
1. Did
Harry agree to hold a portion of his shares in Tripett in trust for Michael?
Alternatively, does Harry hold any of his shares in Tripett in trust for
Michael either because of Michaels role in Tri-Pex or because of a subsequent
contribution to the business in the form of management advice given to Harry in
respect of Tripett?
2. Did
Harry enter into a joint venture agreement with Michael whereby Harry agreed to
provide administrative and management services to GLT and, in particular, to
secure financing for the marketing and sale of the prototype race car developed
by Michael? If so, what were the terms of the joint venture agreement?
3. Has Harry been unjustly
enriched in respect of the 56th Avenue property as a result of
Michaels contribution of labour and monies to the upkeep and improvement of
the property? Is Michael entitled to the remedy of constructive trust due to
his contribution to the property? Alternatively, is Michael entitled to be
reimbursed for the work performed based on quantum meruit?
[6]
Harrys counterclaim raises the following issues:
1. Did
Michael unlawfully confine and assault Harry on April 22, 2008? If so, what
damages should be awarded?
2. Did
Michael fraudulently convert Harrys Cadillac to his own use? If so, what
damages flow from the fraudulent conversion?
3. What,
if any, rent monies are owed to Harry from Michael?
4. What, if any, damages flow
from the certificate of pending litigation?
TRIPETT ENTERPRISES INC.
A. Summary of the Evidence
[7]
In the late 1980s, Judith Pettipas, who was Michaels mother, began a
dog food manufacturing business with a friend from university named Jane Judd.
They incorporated a company called Tri-Pex Dog Food Inc. in 1998 (Tri-Pex).
The sole shareholders and officers of the company were Jane and Judith.
[8]
Michael became involved in this business in two ways. First, he had been
using tripe to feed his dog and Jane had asked him to obtain a supply for her
dogs. Second, Michael was able to arrange a cheap supply of tripe from
Koehlers Meats. When Jane discovered that her friends were interested in
obtaining tripe for their dogs, she suggested that Michael and Judith go into
the dog food business together. Michael was busy with a limousine business and
did not become a partner with Jane and Judith. However, he continued to supply
them with tripe for about 18 months, at which time Judith and Jane secured a
different supplier. Thereafter Michael appears to have had no other role in the
business apart from what he referred to as a silent partner.
[9]
Michael did not invest any money in the dog food business; nor did he
contribute his labour to the business apart from obtaining the initial supply
from Koehlers Meats. Tripe is a well known ingredient of many brands of dog
food and Michael did not register a patent with respect to the formula for the
dog food sold by Tri-Pex. Jane was also familiar with the use of tripe as dog
food before she discovered that Michael was feeding it to his dog. Lastly,
Michael acknowledged that it was Jane who developed the dog food formula used
by Tri-Pex, which consisted of tripe, garlic and carrots.
[10]
Tri-Pex did not earn profits from 1988 until in or about 1993, when the
business was dissolved due to a conflict between Jane and Judith. Jane moved
away in 1993 and thereafter Judith continued to sell the dog food from her home
with Harrys occasional assistance. Judith passed away in 1997 and Harry
continued to sell the dog food to three local retail pet food stores. The
retail sales were very modest and the business made virtually no profits.
Michael had no involvement with the dog food business after his mother passed
away. Judith left her estate to Harry in a will signed in February 1993. She
did not leave her interest in the dog food business to Michael and, from the
terms of her will, it is apparent that Judith had been estranged from Michael
for several years before her death.
[11]
Harry carried on the dog food business from his home until 2001 when he
met Alida Wasmuth. Alida is a dog breeder who had been purchasing the Tri-Pex
dog food for her dogs from local retail outlets. When the retail supply of the
dog food ran out, Alida contacted Harry and began buying the dog food directly
from him. Eventually Alida and Harry decided to form a new company to operate
the dog food business. They called the company, Tripett Enterprises Inc.
Alida and Harry were the sole shareholders and officers of Tripett, which was
incorporated in June 2001. Harry held 51% of the shares and Alida held 49% of
the shares.
[12]
Alida injected some capital into the business and, through her husbands
distribution business, Alida expanded the markets serviced by Tripett. At
present, Harry estimates that their dog food is carried in about 700 retails
stores in Canada and the US. Both Ms. Wasmuth and Harry each draw $500 per
month as a salary and Harry drives a vehicle that is leased by Tripett.
[13]
Although Michael has discussed the dog food business with his father
frequently, there is no evidence that he contributed any labour or funds to
Tripetts operations. Ms. Wasmuth testified that she has met Michael on two
occasions. These were brief encounters that did not involve any discussion of
Tripetts business operations. At no time was she ever advised by Harry that he
held any of his shares in Tripett in trust for Michael.
[14]
There is no written agreement between Harry and Michael recording a
trust arrangement with respect to Harrys shares in Tripett. There is also no
evidence that Harry and Michael orally agreed to a trust arrangement with
respect to the shares in Tripett. Nor is there evidence that Harry and Michael
agreed upon the terms which Harry may have held his shares in trust for
Michael.
B. Summary of the Arguments
[15]
Michael argues that he is entitled to a share in Tripetts business
because the original idea to use tripe for dog food was his. In addition, he
argues that Tripett was another joint family venture that Harry embarked upon
for the betterment of the family as a whole. In this regard, Michael argues
that his father had a practice of creating family ventures for the benefit of
all family members and Tripett was no exception. In addition to his share,
Michael argues that all of his brothers are entitled to a share in the business
of Tripett because of their membership in the family. Michael argues that a
right to a share in this family business does not depend upon any contribution
to the operations of Tripett. As an example of the family ventures developed by
Harry, Michael points to the tree farm business that was operated as a family
business from 1989 until 1994 when Harry sold the farm and purchased the 56th
Avenue property. Michaels claims are based upon express, resulting or
constructive trust and, in the alternative, quantum meruit.
[16]
Harry argues that Michael has failed to establish any form of trust
passing from Judith to him that could result in his acquiring an interest in
Tripett. Further, Harry argues there is no evidence of an express or an implied
trust between himself and Michael in respect of shares in Tripett. The claim of
constructive trust must fail, argues Harry, because there is no evidence of a
substantial contribution to Tripett and no evidence that, if there was a
contribution, a damage award is an inadequate remedy. Harry also argues that to
warrant an equitable remedy, Michael must have clean hands. Having assaulted
Harry and unlawfully confined him and converted his Cadillac, Harry argues
Michael is not entitled to an equitable remedy. In regard to the claim for quantum
meruit, Harry maintains there is no evidence of any work or services
performed by Michael that benefited Tripett. Nor is there any evidence that
Harry sought out any services from Michael or understood that he would be
charged for any such services.
[17]
Michaels claim to a share in Tripett may be divided into two parts.
First, Michael claims that his interest in Tri-Pex was being held in trust for
him by Judith. As a consequence, Harry must hold Michaels equitable interest
in this business on the same trust. Second, Harry expressly or implicitly
agreed that he was a trustee for Michaels share of Tripett.
C. Discussion and Conclusions
[18]
Turning to the first part of the argument, I find that Michael has
failed to establish that he had an interest in Tri-Pex or that Judith was a
trustee of any interest he may have had in Tri-Pex. Michaels contribution to
the establishment of the dog food business does not give rise to a reasonable
inference that he would have been entitled to an interest in Tri-Pex. Jane was
well aware that people used tripe for dog food. Michael simply provided her
with a supply of tripe first for her dogs and then for her friends dogs. Jane
later came up with the formula that was used for the dog food; it was not a
formula that Michael created as a contribution to the business. Moreover,
Michaels evidence that he was offered a role in the business and decided
against taking up this opportunity due to his other pursuits is entirely
inconsistent with his argument that he was nonetheless entitled to an interest
in the company formed by Jane and Judith. The preponderance of the evidence
also supports a conclusion that Judith did not hold Michaels interest in the
company in trust. First, there is no documentary evidence of the trust
relationship. Second, Michael did not testify about specific conversations with
his mother during which she agreed to hold his share of the business in trust.
His evidence consisted of generalized statements about his understanding of
what he and Judith had discussed. Lastly, Judiths will does not expressly
leave a portion of the business to Michael and, indeed, indicates that there is
to be only a nominal bequest to him because of their estranged relationship.
[19]
Addressing Michaels claim that Harry expressly or by necessary
implication holds a portion of his shares in Tripett in trust for Michael, I
find the evidence also falls short of establishing a trust. First, there is no
documentary evidence of the trust relationship. Second, Harry denied that he
agreed to any trust relationship and Michaels evidence was essentially that an
implied trust had been created due to his fathers actions in regard to
previous family businesses such as the tree farm. Third, Michael provided no
clear and consistent evidence of the terms upon which the alleged trust was
created, either expressly or by implication. At first he testified that the
trust was based on him owning 50% of Harrys share in the business. Later he
testified that his brothers would also be entitled to a share in the business.
Lastly, there is no evidence that Michael contributed either his labour or his
funds to the company to justify a conclusion that he is entitled to an
equitable share in the business. In my view, Michaels evidence of his
discussions with Harry concerning Tripett amount to no more than social
conversations about how the business is going, as between father and son. There
is no evidence that Michael could provide Harry with valuable marketing or
business advice. Indeed, it was Michaels evidence that he lacked any knowledge
of such matters and relied on his fathers expertise in these areas in regard
to the limousine business. For these reasons, I find there is no evidence to
support an express or implied trust in respect of Harrys shares in Tripett.
[20]
Lastly, the claim for quantum meruit must fail based on the lack
of any contribution to the Tripett business. As discussed above, Michael
provided neither labour nor capital to Tripett. His discussions with Harry
amount to no more than casual conversations about the business and cannot be
characterized as valuable marketing or business advice. In addition, these
conversations did not occur in circumstances that would give rise to an
expectation of remuneration.
GLT GEM STAR LIMOUSINE TECHNOLOGIES INTERNATIONAL INC.
A. Summary of the Evidence
[21]
Michael developed and built a Formula-1 Indy limousine, which is a race
car, during the 1990s. To carry on his body shop business and to construct the
prototype limousine, Michael rented a shop until in or about 2001. In that year
Michael was forced to move out of his rental premises and Harry agreed that he
could use the shop located on the 56th Avenue property.
[22]
After moving his shop to the 56th Avenue property, Michael
began discussing the promotion of his limousine with Harry. Because Michael was
having some serious financial problems in 2001, Harry agreed that he would
incorporate a company that Michael could use to promote his prototype
limousine. To this end, Harry incorporated GLT in January 2002. Harry was the
sole shareholder and officer of the company. Michael paid the incorporation
fees.
[23]
Michael testified that he and Harry became joint venture partners with
respect to the limousine business. Harry agreed to handle all the
administrative aspects of the business and to arrange for the financing
necessary to promote the prototype limousine. Because Harry was an experienced
businessman, Michael believed he knew what was necessary to obtain financing.
Michael also believed that Harry had contacts in the banking industry through
Leona Nickerson, his common law spouse, who had worked as a bank manager for
many years. Michael testified that once financing was obtained, Harry agreed
that Michael would receive wages of $20 or $25 per hour for his work on the
limousine.
[24]
Michael claimed that Harry made no efforts to obtain any financing for
GLT apart from a single inquiry at a bank in 2007. He also alleged that Harry
failed to carry out any of the administrative work required to make GLT
successful. Lastly, Michael testified that due to Harrys failure to honour the
joint venture agreement, GLT suffered a loss of potential profits of over $115
million. As a further consequence, Michael claimed that he lost over $500,000
in labour and material costs in the construction of the prototype limousine.
[25]
Harry testified that he did not agree to become a joint venture partner
with Michael in the limousine business. Harry testified that his only
involvement was to incorporate GLT in his name because of Michaels financial
difficulties. While he did not charge rent for the shop on the 56th
Avenue property between 2001 and 2007, Harry denied that at any time he agreed
to become Michaels partner in the limousine business. Harry acknowledged that
at some point he promised Michael that he would make inquires at his bank about
obtaining financing to promote the prototype limousine; however, without a
proper prospectus and a business plan, Harry believed that no financial
institution would lend money due to the risk involved. Harry made some general
inquiries with a bank in 2007 but he believed Michaels plans to make millions
with the Indy car were farfetched and unrealistic.
[26]
Harry also testified that he would not go into business with Michael for
a number of reasons. First, Michael had not been financially successful in the
past and in 2001 he had two properties subject to foreclosure proceedings.
Second, Harry was retired and busy with Tripett and his own inventions. In
particular, Harry testified that during this period he was developing a new
type of wheelbarrow. Third, Michael had sued Harry in the 1990s with respect to
the sale of the tree farm purchased as a family business and Harry had not had
any contact with Michael for several years prior to 2001. Fourth, Michael had
assaulted Harry and Judith in the past and Michael had agreed to a peace bond
that prohibited contact with his parents. Lastly, Harry testified that he had
no knowledge of race cars or the racing industry.
[27]
Although Harry agreed that he was willing to help Michael with the
limousine business, and hoped that he would be successful, he did not regard
these efforts as creating a business relationship. It was simply a father
helping out his son wherever he could. Leona testified that she was a customer
service manager and did not have anything to do with loan approvals while
working at the bank.
B. Summary of the Arguments
[28]
Michael argues that the court should accept his version of the events
that Harry agreed to become a joint venture partner. Further, Michael argues
that it is apparent Harry failed to comply with his obligations under this oral
joint venture agreement. Michael argues the damages flowing from Harrys breach
of the joint venture agreement include $500,000 in lost wages and $115 million
in lost profits. Michael argues that Harry had a history of informal joint
business ventures with his sons and he trusted his father to fulfill his
obligations under the agreement.
[29]
Harry argues that the pleadings filed by Michael claim that Harry agreed
to construct a specialty limousine and develop and manage an automotive
company. In contrast, Michaels evidence was that Harry agreed to obtain
financing for the venture. There was no evidence of how much financing was to
be obtained and there was never an agreement that Harry would mortgage his
property to obtain financing for the limousine. Harry argues that Michaels
evidence is not credible; he provided two different figures for the agreed upon
wages, two different time periods for when wages would commence, and his
estimate of the hours worked after the limousine joint venture began are wildly
exaggerated given the race car was 90% complete in 2001 and Michael had other
ventures and projects on the go. In addition, the shareholdings and percentages
were never discussed as between Harry and Michael. Further, Harry points to the
lack of any written contract between the parties and says that the evidence as
a whole does not support a conclusion that the parties intended to create legal
relations. Michael confirmed that when he brought up the subject of the
limousine business Harry would say that he was retired and not interested. It
is submitted that this evidence supports Harrys argument.
[30]
Harry argues the uncertainties surrounding the alleged contract render
it unenforceable. Moreover, if there was a contract, Michael failed to take any
steps to mitigate his loss by seeking financing through other sources.
[31]
A claim for restitution is not made out, argues Harry, because he has
not received any benefit from GLT. Harry simply incorporated the company for
Michael. Michael is also claiming a loss of profits for the company and yet he
did not sue in the companys name. It is argued that Michaels estimate of loss
is farfetched and not supported by the evidence. The prospectus prepared by
Michael is not supported by any proven facts and Michael acknowledged that he
did not have the expertise to prepare this type of report. Harry also argues
that Michael has never received any contractual offer for the supply of his
limousine. Nor has Michael received an offer to provide funding to attend an
event designed to promote his limousine. Even after he was featured in the
London Metro newspaper and the Discovery Channel, Michael received no contract
offers.
C. Discussion and Conclusions
[32]
Based on the evidence as a whole, I find there is no evidence that the
discussions between Harry and Michael with respect to GLT and the prototype
limousine were intended to create legal relations, which is a prerequisite to
finding a binding contract between the parties. I have no doubt that Harry told
Michael he would do what he could to help him get GLT off the ground. He agreed
to incorporate the company because Michael had financial problems. He agreed
that Michael could occupy the shop on the 56th Avenue property and
did not demand any rent for over seven years. They also likely discussed how
the business was going and Michael sought advice from his father, which Harry
willingly provided. This scenario, however, does not suggest that either party
intended that by these discussions an enforceable contractual relationship was
created.
[33]
There were clearly cogent reasons why Harry would not wish to go into
business with Michael. In 2001, Michael was in deep financial difficulties and
Harry was retired and could not afford to jeopardize his modest assets by
getting involved in a joint venture. Harry had gone into business with Michael
in the past, and this venture had ended in disaster; litigation was commenced
and costs were incurred to settle the dispute. Michael had also been violent
with him in the past and Harry was wary of his sons volatile temperament.
Moreover, Harry had no knowledge of race cars or the racing industry. There is
also little evidence to support Michaels bare assertion that Harry was
associated with wealthy people who could afford to finance his limousine. In
particular, and contrary to Michaels testimony, Leona was not a loans manager;
she worked in customer relations.
[34]
I am also satisfied that Michaels claim that there was a contractual
relationship with his father must fail due to the lack of certainty with
respect to the terms of the alleged joint venture. Significantly, Michael
agreed that he and Harry never discussed shareholdings in the company or what
Harry would receive from GLT if he succeeded in obtaining financing. There was
also no certainty as to how much financing Harry was obliged to secure, the
wages that would be paid to Michael and for what services; the nature of
Harrys administrative duties were described by Michael only in vague terms and
there was a clear inconsistency in Michaels evidence in regard to when he
would start to receive a salary.
[35]
Even if one were to conclude that Harry entered into a contract with
Michael for the performance of services, and that he violated the terms of this
contract, the evidence concerning damages flowing from the breach is also very
uncertain. Michael has not proven on the balance of probabilities what work he
did on the limousine or to promote the limousine after the bargain was struck
with Harry in 2001. Moreover, Michael has failed to prove to the required
standard how he was to be remunerated for any such work. Lastly, there is no
cogent evidence that GLT suffered a loss of profits due to Harrys failure to
comply with the terms of the alleged joint venture agreement. I find the
prospectus document prepared by Michael is entirely based on speculation and
has no grounding in reality. There is no concrete evidence to support the bare
statements in this prospectus that GLT could expect to earn millions each year
in net profits. Michael did not provide the court with any evidence that a
contract offer for the supply of the prototype limousine was ever received by
GLT. Even though he received media attention, no contract offers were
forthcoming. This finding is quite apart from the fact that it is GLT who could
claim a loss of profits and not Michael in his personal capacity.
[36]
I also agree that Michaels claim for restitution and unjust enrichment
in regard to GLT must fail. There is no evidence that Harry ever received a
benefit from GLT. Instead, all the benefit of the work done and the monies
spent have remained with Michael. He retained the prototype limousine; he
received rent free use of the shop for over seven years; and he made use of the
company incorporated by Harry on his behalf.
[37]
For these reasons, I must dismiss Michaels claims in regard to GLT and
the limousine business.
THE WORK PERFORMED ON THE 56TH AVENUE PROPERTY
A. Summary of the Evidence
[38]
Michael testified that when he and Harry reconciled in 2001, and it
became apparent that he was going to be on the 56th Avenue property
on a daily basis to work on the prototype limousine, Harry agreed to a standing
arrangement for work Michael did on the property. In this regard, Michael
testified that Harry agreed to pay for all the work Michael performed on the
property at fair market value and that he would receive these monies when the
property was sold. Further, Harry agreed that Michael could carry out any work
that was required without any specific request from his father.
[39]
Michael testified that after 2004 his father no longer resided in the
residence on the 56th Avenue property. Harry and Leona moved to an
apartment in Abbotsford. While Harry continued to attend the property on a
daily basis, each year he spent the winter months in Arizona and was gone from
the late fall to the early spring.
[40]
Michael testified that between 2001 and 2008 he carried out the
following work pursuant to the standing agreement with his father:
1. In
2001 Michael cleaned up the shop and the yard around the shop. Michael
estimated a price of $7,000 for this work, which took two months.
2. In
2003 Michael painted the inside and the outside of the shop and installed
electrical connections. He estimated the fair market value of this work to be
$1,900.
3. In
2004 Michael installed a cedar fence around a portion of the yard and tore down
the old fence. Michael estimated the cost of this work at $3,830. Michael also
constructed and installed a steel framed wooden bridge over the creek that runs
through the 56th Avenue property. Michael estimated the fair market
value of this work at $2,200. Lastly, in 2004 Michael installed steel gate
posts and constructed a carport at a total cost estimated at $9,800.
4. In
2008 Michael installed rolled roofing on half of the residence on 56th
Avenue and estimated the fair market value of this work to be $4,200. He also
removed yard waste and estimated the fair market value of this work to be $3,750.
Lastly, Michael transplanted a line of trees on the 56th Avenue
property and he estimated the fair market value of this work to be $1,400.
5. Sometime between 2001 and
2008, Michael obtained a discount rate for a tree topping job and testified
that Harry agreed to pay him for the difference between the cost of the job at
fair market value and the price paid to the contractor. Michael quantified his
discount credit at $1,500. In addition, Michael assisted with this project by
throwing branches into the chipper after the trees were topped. Also during
this period Michael repaired the well and the well pump on a regular basis. He
estimated the fair market value of this work at $1,700. Michael assisted his
father with the tear down, transportation and reassembly of the rear deck at
the 56th Avenue property. He estimated the value of this work at
$875. Michael also testified that he assisted Harry by delivering and
installing the rear and front doors to the residence on the 56th
Avenue property. The estimate provided for this work was $725. Lastly, Michael
arranged for the disposal of three derelict vehicles on the 56th
Avenue property and he estimated the value of this work to be $2,750.
[41]
In cross-examination, Michael testified that Harry specifically asked
him to do all the work described above notwithstanding the standing agreement
with respect to necessary repairs.
[42]
Michael also testified that in 2006, Harry telephoned him from Arizona
complaining that the insurance company was going to drastically increase his
insurance rates because the residence on the 56th Avenue property
was vacant. Michael testified that to reduce his insurance cost, Harry engaged
him to provide security for the premises. Michael estimated the fair market
value of this work at $525 per month for a total of $22,050 for 42 months of
services.
[43]
Michael provided only one receipt for the work he performed on the
property. In November 2008, he rented a mini-excavator to remove the garden
waste. The cost was $88.00.
[44]
In the fall of 2007, Harry decided to rent out the 56th
Avenue residence. Because he was away for the winter months, Harry asked
Michael to find suitable tenants and to deal with any issues arising out of the
tenancy arrangement in his absence. There is no evidence that Michael was to be
paid for this work. Michael subsequently rented out the residence to a couple
in the winter of 2007. Unfortunately, the tenants caused considerable problems
on the property and Michael evicted them in the early spring of 2008.
[45]
Michael began living in the residence on the 56th Avenue
property in or about the fall of 2007, prior to Harrys departure for Arizona.
Michael testified that Harry did not request any rent from him at this time.
Although he paid Harry $400 in cash in or about October 2007, Michael testified
this money was to help Harry pay the line of credit registered against the 56th
Avenue property, which was in arrears.
[46]
Harry testified that he did not have a standing agreement with Michael
that he could perform required repairs on the 56th Avenue property
without his consent and with the expectation that Michael would receive fair
market value for the work when the property was sold. Further, Harry testified
that he did not discuss yard work with Michael except for the tree topping. In
this regard, Harry asked Michael if he knew anyone who could carry out the work
at a good price. Michael arranged for a friend to top the trees and Harry paid
him a discounted contract price of $2,500. Harry denied that he promised to pay
Michael the difference between the discount contract price and the standard price
for the job.
[47]
Addressing the work claimed by Michael, Harry testified as follows:
1. In
2001 Michael cleaned up the shop and the immediate areas because he required
the shop for his businesses. Michael was not only working on the limousine, he
used the shop for other vehicles that he was repairing. Apart from a few cases
of dog food, none of the junk stored in and about the shop belonged to Harry.
Further, much of the junk that had to be removed belonged to Michael.
2. In
2004 Michael built a portion of a cedar fence on the western edge of the 56th
Avenue property and the owner of the neighbouring property paid part of the
cost. Michael constructed the fence because the neighbour complained about the
noise and the nature of the work carried on in and about the shop. Harry did
not ask Michael to construct the fence, which was built while he was away in
Arizona. In regard to the bridge across the creek, Michael constructed this
with trusses that he purchased for another job at a cost of $50 per unit. Harry
estimated the cost of the wood at $167.00. Although he discussed the adequacy
of the wooden planks that served as a bridge, Harry did not ask Michael to
build this new structure. It was completed while Harry was in Arizona. Lastly,
the four steel gate posts were erected outside the fence on municipal property.
These gate posts were constructed by Michael and Harry did not ask Michael to
install them.
3. In
2004 Michael constructed a carport partially while Harry was away in Arizona.
Harry did not consent to its construction. Michael built the carport to house a
large limousine that was used in another business he operated. Only a small
percentage of the dog food distributed by Tripett is stored in the carport.
Harry does not use it for any other purpose.
4. In
2008 Michael put rolled roofing on half of the roof at the 56th
Avenue residence without his consent. While he discussed the roofs state of
disrepair with Michael, Harry denied that he consented to a rolled roofing job.
It was Harrys intention to hire a professional roofer to replace all of the
shingles on the roof. On April 22, 2008, Harry came to the 56th
Avenue property to measure the roof so that he could obtain the precise
quantity of roofing materials required for the job. When Harry returned to the
property in August 2009, the rolled roofing was in disrepair. Harry had the
entire roof replaced with new shingles at a cost of $6,500. He testified that
rolled roofing is really only used for barns or sheds.
5. In
the fall of 2007 there was a pile of yard waste waiting to be burnt. Harry
obtained a permit to burn the waste but did not use it because Michael had
dumped excrement from the outhouse he used while working at the shop on top of
the pile. The pile grew larger while Harry was in Arizona but he denied that
Michael was asked to remove the pile of waste material. Harry agreed that
Michael moved the line of trees and transplanted them. However, none of the
trees survived.
6. In
2003 Michael painted the shop but he did not install the electrical connections.
Leonas brother-in-law, who is an electrician, installed the electrical
equipment and contributed $400 worth of equipment for the project.
7. Harry
denied asking Michael to repair the well or the well pump. The pump was working
in the fall of 2007 when Harry left for Arizona. When Harry took possession of
the 56th Avenue property in August 2009, the well pump was missing
and he had to replace it. Harry crawled under the house and discovered that the
pump was missing. When he attempted to exit the entrance hatch, Harry got stuck
for over an hour before he was able to free himself.
8. Harry
agreed that Michael came with him to Cultus Lake where they dismantled a deck
they owned at a recreational vehicle park. They loaded the deck onto Michaels
trailer and unloaded it at the 56th Avenue property. Michael also
helped Harry to reconstruct the deck at the 56th Avenue residence.
This job took about 5 to 6 hours in total. Harry denied that he promised to pay
Michael for this work. Harry had driven Michael up to 100 Mile House to help
him deal with one of the foreclosures. Harry paid for the gas and the motel
expenses without any contribution from Michael. Harry also agreed that Michael
helped him pick up doors for the 56th Avenue residence. This job
took three hours and there was no discussion about paying Michael for his
assistance.
9. There were two vehicles on
the 56th Avenue property that were not drivable. One belonged to
Greg; and one belonged to Blake. There was also a truck frame that belonged to
Blake. Harry did not ask Michael to remove these vehicles. Michael also
collected salvage for the vehicles he had removed from the property.
[48]
Harry testified that he did not agree to pay Michael for securing the
property while he was away in Arizona. Although Harry agreed that his insurance
company threatened to increase his rates because of a complaint that the
property was vacant, Harry did not make any arrangement with Michael to provide
additional security for the property apart from his attendance at the shop
every day, which was already Michaels practice. Harry also had a neighbour who
regularly checked on the residence while he was away.
[49]
When Michael commenced this action in April 2008, Harry engaged legal
counsel to have him removed from the 56th Avenue property. Michael
remained on the property until August 2009, at which time he was forced to
vacate because of an order of this court. Photographs of the 56th
Avenue property taken between 1995 and 2007 show that the acreage was well kept
and that there was extensive landscaping throughout the property. Photographs
taken in October 2009, when Harry gained possession of the property, show that
the acreage was left to deteriorate and that virtually no yard maintenance had
been done for a considerable period of time. The areas surrounding the
residence were also cluttered with accumulated junk and waste materials. All
the transplanted trees were dead, and the once beautifully landscaped well area
was completely overgrown.
[50]
When Harry returned from Arizona in April 2010 he commenced working on
the 56th Avenue property five days per week. He paid the outstanding
cable and gas bills that Michael had accumulated. Harry purchased a new water
pump for $400 and a new chain saw for $130. His previous saw had gone missing.
B. Summary of the Arguments
[51]
Michael argues that he is entitled to an interest in the 56th
Avenue property by way of constructive trust due to the work he performed on
the property and because of the bargain he struck with Harry concerning payment
for the work he performed. In the alternative, Michael argues that he had a
contractual relationship with Harry for the payment of all work done at fair
market value. In the further alternative, Michael argues he is entitled to be
reimbursed for his labour based on quantum meruit.
[52]
Harry argues that Michael has failed to prove a standing agreement to remunerate
him for any work done on the property at fair market value. In this regard,
Harry maintains no reasonable person would conclude in the circumstances that
there was any intention to create legal relations. Further, Harry argues there
was no certainty with respect to the terms of the agreement. Whether Michael
was to be paid an hourly rate or the going market rate; when he was to be paid;
what work he would charge for and what work he would do voluntarily; and at
what time fair market value would be determined were all uncertain based on
Michaels evidence.
[53]
Harry argues there is no express trust proven on the evidence. Nor is
there evidence that Harry purchased the property in his name and held it in
trust for Michael thereby creating a resulting trust. In addition, Harry argues
there has been no unjust enrichment to warrant a remedy of constructive trust.
Most of the work was done for Michaels benefit due to his use of the shop for
his automotive businesses; much of the work completed did not add value to the
property and some work, such as the tree transplanting, devalued the property.
There is no evidence that the value of the property increased due to the work
done by Michael. Further, Harry argues that on the whole of the evidence
Michael gained far more from the relationship than he lost by it. He lived on
the property rent free from the fall of 2007 until August 2009. He used the
shop for free from 2001 until August 2009.
[54]
Harry also argues that the mess left by Michael when he was ordered off
the property by the court must be taken into account to determine whether there
has been any value survived with respect to the work he performed. Because
there was an enormous amount of cleanup work to be done on the property to
restore it to its pre-2007 condition, Harry argues it cannot be said that on
balance Michaels labour contributed any lasting value to the property. Lastly,
Harry maintains that Michael is not entitled to the equitable remedy of
constructive trust because there is no evidence that damages are an inadequate
remedy and because Michael lacks clean hands.
C. Discussion and Conclusions
[55]
I agree with Harrys submission that the evidence falls short of proving
that he entered into a binding contractual relationship with Michael for work
Michael performed on the 56th Avenue property. The terms of the
arrangement alleged by Michael are too uncertain to establish a contract. In
particular, there is no evidence that the parties agreed to a method for
determining fair market value for work done or when fair market value was to be
determined. There was also no certainty as to what work would be covered by the
so called standing arrangement with Harry. In the particular circumstances of
this case, it is not reasonable to presume that Harry trusted Michael to
unilaterally choose the work he would perform, unilaterally determine its fair
market value, and unilaterally determine how and when it would be performed.
Harry had been estranged from Michael for many years due to a serious dispute
over a family business venture. It is unlikely that after those events Harry
would give Michael carte blanche to work on the 56th Avenue property
with the expectation that he would be reimbursed at whatever fair market value
Michael dictated.
[56]
Michaels evidence concerning this contractual arrangement was also
inconsistent. While Michael testified that Harry agreed he could do the work
without obtaining his permission, Michael also testified that in each case he
sought and obtained consent to carry out the work. If the standing agreement
was in place, it is illogical that Michael would nevertheless seek his fathers
permission before embarking upon a project. The fact that Harry was away about
eight months each year also renders Michaels evidence that he sought permission
to do the work, notwithstanding the standing arrangement, highly suspect.
[57]
Turning to Michaels claim of unjust enrichment, I find that some of the
work he performed on the 56th Avenue property bestowed a benefit on
Harry. The construction of the fence and the carport clearly benefited Michael
because they enabled him to carry on his business without raising concerns with
the neighbours; however, these structures continue to exist on the property and
Harry continues to be able to use them. Moreover, when Harry lists the property
for sale the carport will undoubtedly be advertised as a positive attribute.
There is also a corresponding detriment to Michael through the investment of
his labour and the cost of the materials. The real question is whether there was
a juristic reason for the benefit conferred.
[58]
The procedure for determining the existence of a juristic reason has
been clarified by the Supreme Court of Canada in Garland v. Consumers Gas,
2004 SCC 25 [Garland], as explained by our Court of Appeal in Harraway
v. Harraway, 2009 BCCA 561 at paras. 18-21. The absence of
juristic reason element is to be examined in two stages. First, the party
seeking a contribution has the onus of showing there is no juristic reason for
the enrichment falling within one of the established categories in order to
deny recovery. The established categories include: a contract; a disposition of
law; a donative intention; or other valid common law, equitable, or statutory
obligations. If the party satisfies the first stage, then the onus shifts to
the other party to rebut the prima facie case of unjust enrichment by
showing another reason to deny recovery and allow the enrichment to be retained.
At this stage the court has regard to the reasonable expectations of the
parties and public policy considerations: see Garland at para. 46.
[59]
In this case there is no evidence of a juristic reason for the
enrichment within one of the established categories. Thus the onus shifts to
Harry to rebut a prima facie case of unjust enrichment by showing
another reason to deny recovery. It is here that the court must consider the
expectations of the parties and all of the surrounding circumstances to
determine if there is an overall benefit conferred on one party by the other.
[60]
Despite the benefit conferred on Harry by Michaels labour, overall I
find the benefits conferred on Michael by Harry in connection with the 56th
Avenue property are far greater, thereby rebutting any prima facie case
of unjust enrichment. First, Michael had use of the shop located on the
property from 2001 until August 2009 rent free. Second, in the fall of 2007
Michael moved into the residence on the 56th Avenue property and,
apart from a single $400 payment, he has not contributed any monies for rent or
utilities.
[61]
The value of the work performed by Michael must also be considered at
this stage of the inquiry. Much of the work described by Michael involved
garden and lawn maintenance as well as clean up of the shop and the surrounding
areas. The garden work was of no lasting value, particularly considering that
in the final two years of Michaels occupation of the property he performed no
yard maintenance and permitted a substantial amount of waste materials and junk
to accumulate. The work required to bring the gardens back to their pre-2007
condition is far more extensive than any of the maintenance work performed by
Michael over the years. The shop cleanup was also exclusively for Michaels
benefit. He required the shop for his various limousine operations. Apart from
providing a storage place for a few cases of dog food, there is no evidence
that Harry used the shop for any other purpose. In addition, I accept Harrys
evidence that much of the yard waste was created by Michael when he emptied his
outhouse on top of a pile of lawn clippings. Although Michael moved a row of
trees to enhance the 56th Avenue property, the trees all died and
currently devalue the appearance of the garden. The roof job was also a
makeshift effort using rolled roofing, which only covered about half of the
roof surface. Harry must replace the shingles on the entire roof to ready the
property for sale. Lastly, the gate posts added little to the aesthetic
appearance of the property and will ultimately have to be removed because they
are located on municipal property. Thus I find that the work Michael performed
contributed very little lasting value to the 56th Avenue property.
[62]
Further, I find that it was a reasonable expectation that Michael would
help Harry with odd jobs in consideration for staying on the property rent
free. Helping Harry construct the deck, transport new doors for the residence,
dispose of old vehicles, and organize a contractor to top the trees are the
types of services it was reasonable to expect that Michael would perform
without being compensated. In addition, I find that the well maintenance
performed by Michael from time to time over the years was clearly of benefit to
Michael. While he lived and worked on the property, Michael necessarily
required water. It would be reasonable that if the pump stopped functioning,
Michael would fix it without any expectation of payment. Moreover, Michael took
the pump with him when he left the property. Public policy also militates
against finding occasional services provided by dependent adult children to
their parent(s) as unjustly enriching. There may be an enrichment, but it will
not always be classified as unjust in light of the unique relationships between
parents and their adult children.
[63]
For these reasons I must conclude that Michaels claim for unjust
enrichment fails. Although Michael contributed his labour to the property over
the years, the overall benefit to Harry was nominal. In contrast, Michael
received far more benefit from the free use of the residence and the shop over
the many years he worked and lived there than was conferred on Harry by
Michaels labour.
[64]
Even if I were to conclude that Michael had established an unjust
enrichment, there is no evidence that a damage award would be inadequate,
thereby necessitating the remedy of constructive trust. Further, using the
value survived approach it cannot be said that the work performed by Michael
has increased the value of the 56th Avenue property. There is simply
no evidence to establish this essential fact. Indeed, given the state of
disrepair left by Michael when he finally left the property, it is likely that
the value of the property was diminished by his failure to attend to ordinary
maintenance of the house and the garden.
[65]
Michaels alternative claim is for a remedy in quantum meruit.
Because I have concluded there was no contract proven with respect to the
performance of work by Michael, recovery in quantum meruit must be based
on some other ground. This is clearly not a case where Michael performed the
work under a mistaken belief that he had a legal obligation to do so. The only
other alternative is that Harry acquiesced in the work or services being done
by Michael and in so doing led Michael to believe that he had undertaken to pay
for the work. In other words, even if the contract is not sufficiently certain
to be enforced at law, equity compels payment for services rendered when there
is clear evidence of an expectation of payment.
[66]
There are four items claimed by Michael that may be considered under the
heading quantum meruit. These include the bridge, the carport, the cedar
fence, and the security services. For the reasons discussed above, there could
be no expectation of payment for any of the other items Michael claims under
this heading.
[67]
Harry testified that he did not ask Michael to do any of this work or to
perform security services. I accept his evidence. I am also satisfied that
Harry did not lead Michael to believe he would receive payment for work
performed on the property for the following reasons. First, it is apparent that
Harry placed boards over the stream that ran through the 56th Avenue
property as a makeshift bridge and the stream was not typically so full that
crossing it was difficult. In short, Harry did not believe a more substantial
bridge was required. Second, all of the work was performed while Harry was away
in Arizona. Third, the cedar fence was constructed due to complaints from a
neighbour about the noise and odours emanating from Michaels auto mechanic
work in the shop and in the carport. Harry had no interest in constructing a
fence on this part of his property. Fourth, the carport was constructed because
Michael required a place to keep his limousines. Harry did not require the
carport to store Tripetts dog food. Lastly, because Michael was already
attending the 56th Avenue property on a daily basis to work in the
shop, there was no reason to engage him to perform security services based on a
threat from the insurance company to raise the rates.
[68]
Had I found that Harry had acquiesced in the work being done by Michael,
there is virtually no evidence of the fair market value of the work or services
apart from Michaels bare assertions. A claim for quantum meruit is for
reasonable remuneration for the services provided or, in other words, for what
the job is worth. The value of the work must be based on the evidence before
the court.
[69]
In my view, there is no evidence to support the amounts demanded by
Michael beyond his bare assertions. In addition, several of the amounts claimed
appear to be grossly inflated. For example, Michael charged a $1,500 fee for
negotiating a contract to top the trees that in total cost Harry $2,500. Michael
also claimed $4,200 for installing a rolled roof on half of the roof surface of
the residence. Harry had the entire roof re-shingled by a contractor at a cost
of $6,500. There is a substantial difference in the cost of materials and
labour for a shingled roof compared to the relatively inexpensive rolled
roofing. Michael claimed $7,000 for two months work cleaning up the shop
without any deduction for the fact that the cleanup was required so that he
could carry on business there. In light of the lack of any evidence to support
the rationale behind the sums claimed by Michael, and the examples of inflated
charges given above, Michaels evidence concerning the fair market value
estimates is simply not credible.
[70]
For these reasons, I dismiss Michaels claim for remuneration based on quantum
meruit.
COUNTER CLAIM ASSAULT AND UNLAWFUL CONFINEMENT CONVERSION OF THE
CADILLAC
A. Summary of the Evidence
[71]
Harry testified that in the early afternoon of April 22, 2008 he drove
to the 56th Avenue property in his 2003 Cadillac for the purpose of
measuring the roof on the residence. It was his intention to replace the
shingles on this roof. Leonas daughter worked at a Rona store in Langley and
for one day only the store was offering a substantial discount on purchases by
family members. To take advantage of the sale, the roofing material had to be
ordered on April 22nd.
[72]
When Harry arrived at the residence, he found Michael and Blake talking
loudly in the kitchen. Blake was smoking in the house contrary to Harrys
instructions to him the week before. In response to this situation, and using
an angry tone of voice, Harry told Blake to stop smoking in the house. Michael
responded sarcastically that this was a nice way to greet Blake who was not well
and had not seen his father for some time. Harry told Michael to shut up using
foul language. In response, Michael handed Harry a copy of the writ, statement
of claim, and certificate of pending litigation filed in respect of the within
action. Harry took the documents and walked down the hall intending to measure
the roof. As he left, Harry told Michael and Blake to get the hell off my
property.
[73]
Harry testified that Michael and Blake followed him down the hall.
Michael grabbed his collar or his shoulder and swung him around. Michael pushed
Harry up against the wall with one hand around his throat and began to choke
him. Harry tried to defend himself by pushing Michael away and by pressing his
knee into Michaels groin. In response, Michael grabbed Harrys testicles and
squeezed them. For a considerable period of time Michael held Harry in this
position while he and Blake screamed accusations at him. They accused him of
ruining the family. Michael accused Harry of sexually abusing him as an infant.
Michael and Blake threatened that they could kill him at any time; they could
put a bullet into his head.
[74]
At some point while Harry was being held against the wall, Blake or
Michael took his wallet and his car keys from a pocket. Blake took Harrys
money and held onto his car keys. Harry thought he was going to pass out from
the choking. Eventually Michael released Harry on the condition that he sit
down and discuss with them several issues of concern to the brothers. Michael
made it clear to Harry that under no circumstances was the 56th
Avenue property to be sold.
[75]
Their discussion lasted for about four hours. Harry did not recall all
the issues that were discussed. He testified that Blakes financial
difficulties and his medical problems may have been raised by Michael. During
this discussion Harry was not threatened or physically restrained; however, he
believed that he would not be permitted to leave. At about 5:30 p.m. or
6:00 p.m., a neighbour arrived at the rear door looking for Harry. Blake
went to the door and told the young woman that Harry was not at the house. She
persisted in her inquiries because Harrys Cadillac was in the front driveway.
Harry got up from the kitchen table and went out the door to where his
neighbour was standing. She advised Harry that Leona had called and was worried
about him. Blake accompanied Harry to the neighbours home where Harry called
Leona and advised that he would be home shortly. He was so shaky that he could
not dial the numbers himself so the neighbour made the call for him. Harry did
not use this opportunity to call 911. Nor did he advise the neighbour or Leona
that he was being kept against his will by Michael and Blake.
[76]
After making this call, Harry returned to the 56th Avenue
residence to retrieve his car keys and go home. Michael and Blake refused to
release the Cadillac. Michael said that Harry could use his Volkswagen or take
a taxi; however, they needed a nice car to drive. Harry did not agree to take
the Volkswagen but he felt there was no other choice. Because Harry could not
drive a standard gear shift, Michael had to instruct his father on the
operation of the Volkswagen before he could drive it home. Harry testified that
he was only permitted to leave when he promised to return the next day.
[77]
When Harry arrived home he got Leona to pour him a stiff drink because
he was so shaken by the events. This was unusual because Harry did not
regularly consume alcohol. His neck and testicles were sore and he was very
upset. Because Harry could only obtain a Rona discount of 30% if he purchased
the roof materials that day, Leona drove him to Rona before going to the police
station. Leona corroborated Harrys evidence on this point. She also testified
that Harry was very upset and literally white with fear when he returned home
that night. They spent hours waiting for the police to take a statement and did
not meet with an officer until after 10 p.m.
[78]
Harry testified that for two or three weeks his neck and testicles were
sore; however, his fear of reprisals from Michael and Blake were ongoing. He
and Leona placed barriers against their apartment door for two months to
prevent Michael from entering in the night. Harry had trouble sleeping at night
and saw his doctor for treatment. Dr. Kahlons report indicates that Harry had
symptoms of post-traumatic stress disorder and, as late as October 2008, was
feeling stressed due to the actions of his sons.
[79]
Michael testified that in early 2008, Harry called to advise that he was
going to sell the 56th Avenue property. This news distressed Michael
because he believed there had been a family plan to tear down the existing
house on the 56th Avenue property and build a mega-house where all
the brothers could live with Harry. Michael became very angry at his fathers
broken promises. He telephoned Blake and Gregory to inform them of their
fathers decision. Shortly after this, Michael travelled to 100 Mile House to
pick up Blake and bring him to the 56th Avenue property; Blake then
moved into the residence. In March 2008, Michael commenced this lawsuit and
filed a certificate of pending litigation against the title to the 56th
Avenue property in order to prevent Harry from selling it. Michael also met
with his brothers and they discussed a plan to approach Harry and convince him
not to sell the property. Although Harry had been at the 56th Avenue
residence shortly before the April 22nd incident, he did not speak
to either Blake or Michael.
[80]
On April 22, 2008, Michael and Blake were sitting at the kitchen table
talking when they heard Harry enter the residence. Michael testified that Harry
came to the kitchen door and angrily told Blake to stop smoking. When Michael
commented that this was a nice way to greet Blake, Harry told him to shut up.
Michael then commented that Harry let the tenants smoke in the house and in
response Harry told Michael to get the fuck off my property. Michael became
angry and left the kitchen to retrieve his writ and statement of claim. He
walked down the hall after Harry and handed him the documents saying, There you
are you mother fucker, you owe me big time so get off my property. In
response, Michael testified that Harry called him a fucking bastard and then
rammed his shoulder into Michaels chest.
[81]
Michael testified that he grabbed Harrys shoulder and advised Harry
that he was under arrest. There was another abusive verbal exchange and, when
Harry attempted to grab Michaels documents, Michael slammed Harry up against
the wall and lifted him until his feet were not touching the ground. Michael
again advised Harry that he was under arrest. While Michael held him against
the wall, Harry drew back to strike Michael and Blake grabbed his arm. Michael
testified that he intended to hold his father up against the wall until the
police came to arrest him for assault. Michael did not contact the police or
ask Blake to call 911. Harry continued to struggle against Michaels hold on
him. Michael was very upset; he accused Harry of sexually molesting him from
the time he was a very young child; he accused Harry of stealing the dog food
company from him; and he berated Harry for wanting to sell the 56th
Avenue property. Finally, Michael accused his father of destroying the family.
Although Michael testified in cross-examination that he was not angry or out of
control, his demeanour in the witness stand while testifying clearly belies
this assertion. When testifying, Michael became loud, angry and aggressive
simply recalling the events. There is no doubt that Michael was extremely angry
and upset with Harry while he had his father pinned against the wall.
[82]
While Harry was still pinned against the wall, Blake yelled at Harry
that they could kill him and no one would ever know; they could put a bullet in
his head. Thereafter Michael continued to make accusations against Harry. Blake
took Harrys wallet and found $50 inside. Michael said to Harry that this was a
start, but that Harry had a lot more to pay. When Harry kneed Michael in the
groin, Michael squeezed Harrys testicles in response. After about 15 minutes
of holding Harry against the wall, Michael told him they were going to sit down
in the kitchen to discuss matters. There was going to be no sale of the house.
Harry was led to the kitchen where he was seated at the table. Michael sat
across from Harry and Blake stood to his right. Michael testified that they
talked for four hours and that at all times Harry was free to leave.
[83]
One topic of conversation during this four hour period was the Cadillac.
Michael testified that in or about 2001, he did repairs on Harrys 1992 Ford F-250
truck worth $1,156; that in 2003, he did repair work on a Black Eagle Vision
pick-up truck worth $6,750.74 that Harry gave to Blake; and in 2006 and 2007,
he did $843.26 worth of repair work on Harrys 2003 Cadillac. Michael testified
that October 28, 2007 was the last day he worked on the Cadillac; it was on
this day that he test drove the vehicle after the repairs were finished.
Michael testified that he put the invoice, which is dated November 14, 2007, on
the fridge at the 56th Avenue residence before Harry left for
Arizona so that he had plenty of opportunity to see it and pay for the work
done. This unpaid account was raised with Harry during the discussion at the
kitchen table.
[84]
Michaels evidence of how Blake got possession of the Cadillac is not
consistent. While he testified that Harry voluntarily turned the vehicle over
to Blake so that he could drive to his medical appointments and to the bank to
address some outstanding financial matters, Michael also testified that they
informed Harry they were seizing the Cadillac under a repairers lien. Indeed,
the Cadillac was advertised for sale under the Repairers Lien Act and,
when no offers were received, Michael sold the vehicle to Blake for $1,000.
This occurred in May 2008. Blake subsequently sold the Cadillac back to Michael
for $1,000 and then Michael sold it to a third party for $10,000.
[85]
In cross-examination, Michael testified that for the purposes of the Repairers
Lien Act he had continuous possession of the Cadillac due to his possession
of a duplicate key and a key to Harrys apartment. He believed that the
Cadillac was parked in Harrys garage and that Harry had not taken it to
Arizona. Michael did not actually check to see if the Cadillac was being stored
in the apartment garage during the winter months of 2007 and 2009. The lien
claim filed by Michael referenced the entire November 14, 2007 account of $8,750
rather than the $843.26, which represented the charge for work done solely on
the Cadillac.
[86]
Harry testified that he left for Arizona on October 15, 2007 and drove
the Cadillac. His credit card statements verify that he purchased gas and
stayed in a hotel in California en route to Arizona on October 16, 2007. Harry
testified that he drove to Arizona each year and had done so in the Cadillac
since he purchased the vehicle in October 2006. Leonas testimony confirmed
that the couple left Langley for Arizona on October 15, 2007 in the Cadillac
and that they did not return until April 2008. In addition, Harry testified
that he purchased the Cadillac for $22,999 plus taxes on October 3, 2006. An
extended warranty was also purchased for $3,500. Both the warranty and the
purchase agreement were entered as exhibits.
B. Summary of the Arguments
[87]
Michael argues that I should accept his version of the events concerning
the assault. He argues that he merely restrained Harry for the police and to
prevent a further assault. In addition, Michael argues that Harry was free to
leave the house at any time and voluntarily stayed to discuss the family
issues. Had he been confined against his will, Harry would not have returned to
the 56th Avenue residence after calling Leona from the neighbours
house. Michael argues that if Harry had been assaulted and unlawfully confined
as suggested by Harry, then it was not logical for him to go shopping at Rona
before going to the police. Michael also points to inconsistencies in Harrys
statement to the police.
[88]
Michael argues that he properly seized the Cadillac pursuant to the Repairers
Lien Act and properly notified Harry after the sale. Having followed the
proper procedures, he argues Harry is not entitled to claim the Cadillac was
stolen. Alternatively, Michael argues that Harry voluntarily permitted Blake to
operate the Cadillac pending its seizure under the Repairers Lien Act.
[89]
Harry argues that Michaels evidence amounts to an admission of an
assault and a battery. Michaels claim that he was making a citizens arrest is
not credible because neither he nor Blake made any attempt to contact the
police. Harry argues that his version of the subsequent events should be
accepted: he was not physically restrained in the kitchen but he was under a
psychological fear that if he attempted to leave he would be restrained. Harry
says that Michael only permitted him to leave when he promised to return the
next day. Harry seeks damages for pain and suffering in the amount of $10,000
for the assault and the unlawful confinement.
[90]
In regard to the conversion of the Cadillac, Harry argues there is clear
evidence that Michael misrepresented the facts in the affidavit he filed under
the Repairers Lien Act. In particular, that he worked on the vehicle on
October 28, 2007 and had it in his possession until it was seized on November
4, 2007. Further, Michael claimed a lien for over ten times the value of the
work done on the Cadillac. Michael also failed to prove that he gave notice to
Harry under s. 2(4)(c) of the Repairers Lien Act and that Harry
signed the work invoice. In addition, Michael failed to prove that he filed a
financing statement within 21 days, contrary to s. 3 of the Repairers
Lien Act.
C. Discussion and Conclusions
[91]
In my view, Michaels version of the events concerning the seizure of
the Cadillac is entirely incredible. Where his testimony differs from Harrys
evidence in regard to these events, I reject his version entirely. Michaels
evidence concerning the work performed on the Cadillac, the posting of the
account on the fridge at the 56th Avenue residence before Harry left
for Arizona, and his attempts to comply with the Repairers Lien Act must
be regarded as complete fabrications. First, Michael could not have given the
Cadillac a test drive on October 28, 2007 because Harry left for Arizona in the
Cadillac on October 15, 2007. Harry stayed overnight in California on October 16,
2007. Second, Michael could not have posted the account dated November 14, 2007
on the fridge before Harry left for Arizona because the invoice did not exist
on October 15, 2007. Third, Michael had no knowledge of the Cadillacs
whereabouts after October 15, 2007 because he at no time went to Harrys
parking garage to determine if it had been left there. Fourth, the affidavit
filed by Michael pursuant to the Repairers Lien Act grossly overstates
the outstanding charges for the work on the Cadillac. Lastly, it is highly
unlikely that Michael would be asked to inspect the brakes (part of the work
alleged to have been done in 2006 or 2007) when Harry had purchased an extended
warranty in October 2006.
[92]
In my view, the Cadillac was wrongfully seized under the Repairers
Lien Act for work that could not have been carried out and for an amount
that represented ten times the value of the work allegedly performed. Michael
has also failed to establish compliance with the mandatory procedural
requirements under the Repairers Lien Act. Having never taken possession
of the Cadillac, Michael has failed to prove an acknowledgement of the debt by
Harry; that he filed a financing statement in the court registry and that he
subsequently had the vehicle seized by a bailiff: See Bromba (c.o.b. B. Transport)
v. Kal Tire, [2000] B.C.J. No. 1390 (Prov. Ct.).
[93]
I also reject Michaels evidence that Harry voluntarily relinquished his
Cadillac to Blake on April 22, 2008. As described above, Michaels evidence on
this point was inconsistent. While he asserted that Harry voluntarily permitted
Blake to use the vehicle, Michael also testified that he told Harry he was
seizing the Cadillac under the Repairers Lien Act. In addition, it makes
little sense that Harry would voluntarily give up possession of his Cadillac in
return for Michaels Volkswagen when he could not drive a standard gearshift
and had to be instructed on its operation before leaving the 56th
Avenue property. Moreover, Michaels entirely discredited evidence concerning
the work performed on the Cadillac and his seizure of the vehicle render the
balance of his evidence suspect.
[94]
I thus find that Michael fraudulently deprived Harry of possession of
the Cadillac and wrongfully sold the vehicle first to Blake and then
subsequently to a third party. Michael also retained all of the proceeds of
sale, notwithstanding the debt owing on the Cadillac was less than $1,000.
[95]
The tort of conversion has been made out on the evidence and I order
Michael to pay to Harry $10,000 in damages. This amount reflects the best
estimate of the value of the Cadillac at the time of the conversion because it
is the price paid by an independent third party in an arms length transaction.
[96]
Turning to the claim of assault and battery, I find that solely based
upon Michaels version of the events, he committed an assault against Harry
when he slammed him up against a wall and held him there for 15 minutes. I
reject Michaels evidence that he was merely restraining Harry pending the
arrival of the police. Neither Blake nor Michael made any attempt to contact
the police at the relevant time or at any other time to report a complaint of
an assault by their father. Moreover, Michael was a party to threats made by
Blake to kill Harry. These threats were made in Michaels presence and while
Michael physically held Harry suspended off the ground and pressed up against
the wall. In addition, Michaels actions cannot be characterized as a defensive
measure. Harry is shorter and much smaller than Michael. Harry was nearly 70 years
old at the time of the events and Michael was in his early 40s. If Michael
feared he would be assaulted a second time by Harry, he could have left the
residence. Lastly, even if Michael could be characterized as acting in self-defence,
he used far more force than was reasonably necessary in the circumstances.
[97]
Harry also claims damages for unlawful confinement. I am satisfied that
Harry was deprived of his liberty in a physical sense while Michael held him
against the wall. During this 15 minute period, Harry was deprived of his
liberty and there is no lawful justification for Michaels actions. However, I
am not satisfied that the evidence clearly establishes an unlawful confinement
during the parties discussion at the kitchen table after he was held against
the wall by Michael. Harry testified that he was not physically restrained at
this time, but he believed that Blake and Michael would have prevented him from
leaving had he attempted to do so. This evidence, however, is inconsistent with
Harrys actions. When the neighbour came to the kitchen door, Harry did not
immediately call out that he was being held against his will, nor did he direct
the neighbour to call the police. Further, Harry appears to have left the
residence to make a telephone call from the neighbours home without any
interference from Blake or Michael. Lastly, Harry made no attempt to contact
the police while he was at the neighbours home and he appears to have
voluntarily returned to the 56th Avenue residence after he talked to
Leona.
[98]
Turning to the issue of damages, it is apparent that Harry was shocked
and terrified by the actions of his sons. In view of Michaels extremely angry
demeanour during his testimony about these events, there is little doubt that
he projected a very frightening image to his father. For two months after these
events Harry kept a barrier against his apartment door to prevent Michael from
attacking him again. On the other hand, Harrys evidence does not suggest there
were any long term physical or emotional impairments suffered as a result of
the assault and the unlawful confinement. The physical injuries were slight and
he recovered very quickly. The emotional stress of the events lingered somewhat
longer; however, Harry does not appear to have required any prescription
medication or professional counselling. In all of the circumstances, I find
that general damages in the amount of $5,000 are appropriate.
HARRYS CLAIM FOR RENT AND THE CERTIFICATE OF PENDING LITIGATION (CPL)
[99]
Harry testified that Michael agreed to pay $600 rent for the shop and a
portion of the residence from October 2007 onward. Michael disputes this
agreement and maintains he paid $400 to Harry once to help bring the line of
credit against the 56th Avenue property current. At that time the
bank records show that Harry was not behind in his payments on the line of
credit.
[100] I am not
satisfied that there was an agreement to pay rent or that an order for rental
payments is warranted in the circumstances. First, Harry made no attempts to
collect any rent until Michael commenced this action in April 2008. Second,
Harry acknowledged that he asked Michael to advertise and find tenants for the
residence and to manage the property while the tenants were in occupation.
Michael carried out these responsibilities until he evicted the tenants in the
spring of 2008. Lastly, the fact that Michael occupied the shop and the
residence rent free has already been balanced against the work he performed on
the property that benefited Harry. Thus it would be inconsistent with Harrys
position in regard to the claim of unjust enrichment to now claim unpaid rent.
[101] Harry also
seeks a reference to the registrar to determine the damages flowing from the
CPL filed by Michael against the 56th Avenue property. In my view,
this is not a proper matter to be referred to the registrar. A determination of
loss requires an assessment of the value of the property as of March 2008 when
the action was filed and as of November 2010 when the CPL will be removed. This
requires an exercise of judgment by the court and is not merely an accounting
that may be done by the registrar. Accordingly, I dismiss this application.
SUMMARY OF CONCLUSIONS AND ORDERS
[102] Michaels
action is dismissed with costs to Harry at Scale B. Michaels action under the Builders
Lien Act, S.B.C. 1997, c. 45 is dismissed by consent. This is action number
S094845, Vancouver Registry.
[103] The
certificate of pending litigation is vacated from the 56th Avenue
property; legally known and described as Lot 68, Section 4, Township 11, New
Westminster, District, Plan 25284.
[104] Harrys
counterclaim is granted as follows: Michael is ordered to pay to the defendant
$10,000 in damages for conversion and $5,000 for assault, battery and unlawful
confinement. Michael shall also be responsible for Harrys costs in relation to
the counterclaim at Scale B.
[105] I award
interest on the damages ordered pursuant to the Court Order Interest Act,
R.S.B.C. 1996, c. 79.
Bruce J.