KINGSTON COURT FILE NO.: 529/17 DATE: 20200107
ONTARIO SUPERIOR COURT OF JUSTICE (FAMILY COURT)
BETWEEN:
Glen Edward King Applicant
– and –
Sharon Marie Mann Respondent
Counsel: Self-Represented (Applicant) Self-Represented (Respondent)
HEARD: December 9 and 10, 2019
REASONS FOR JUDGMENT
MINNEMA J.
Nature of the Case/Issues
1The parties with the assistance of counsel settled the bulk of their claims by way of a Final Order dated July 24, 2018. However, they were unable to resolve a handful of issues concerning personal property, including bailment of a safe and contents, ownership of an engagement ring, and the ownership and residency of a dog. They were not married, but as the application and answer also sought trusts and spousal support this court has jurisdiction: Courts of Justice Act, sections 21.8 and 21.9. They represented themselves (an emotional experience for both) and were their only witnesses. At the hearing both sought to raise new issues of alleged non-compliance with the said Final Order.
Background Facts
2The applicant is employed by the Ontario Provincial Police. The respondent is employed by the Department of National Defence. At some point they began a relationship. In December of 2009 the respondent moved into a house on Wilfred Crescent owned by the applicant.
3The parties bought a house on Waterside Way as joint tenants. They agreed that the applicant would pay the bulk of the down payment, that the respondent would purchase all the major appliances, and that they would share the expenses including mortgage payments equally. They moved in on September 1, 2013. A dining room set was purchased by the respondent on or around February 15, 2013 and stored at Wilfred Crescent until they moved. There is a dispute as to whether it was part of their agreement.
4At some point the applicant proposed to the respondent and provided an engagement ring. The respondent accepted. A dog, Copper, joined the household as a puppy in 2015.
5In early October 2015, the applicant was arrested and removed from the home as a result of being charged with domestic violence on the respondent. They had been in their new home for about two years and Copper was just eight months old.
6The parties tried to save their relationship. They worked around the communication restrictions arising from the criminal process. Arrangements were made for the applicant to have liberal contact with the dog. They attended couples counselling. The applicant, although removed from the home and residing elsewhere, continued to pay his half of the home expenses.
7The applicant attended the home to get his toiletries and some personal belongings. Subsequently, around mid-November 2015, he attended again with a mutual friend Steve Large, also a police officer, to get a few shirts, the TV, the TV stand, and a sound-bar. The respondent had told him in a text he could take whatever he pleased. The applicant also secured some furniture, a chair, and his bed -- things he said he needed -- but it was not clear when.
8Early the next year (2016) and unbeknownst to the applicant, the respondent began operating an Airbnb out of the jointly owned home. She would only admit to having started this commercial activity around September of 2016 but on January 24, 2018 she told a newspaper reporter who was doing a story on Airbnb regulations in the City that she had been “renting out three of the four bedrooms in her Waterside Way bungalow on Airbnb for about two years”. She had at least 140 rentals in total. Although the garage was not part of the Airbnb, the laundry room on the main floor was, and the door between the garage and the laundry room did not have a lock. The respondent indicated that when she rented, she would reside downstairs (the house was a bungalow) and work from home, resulting in her being in the building most but not all of the time. In response to questioning by the applicant, the respondent confirmed that criminal background checks were not obtained for renters.
9The applicant eventually pled guilty to an assault on the respondent. On December 7, 2016 he received a conditional discharge and two years probation. The respondent was cooperative with the applicant in dealing with his criminal matters.
10Shortly afterwards, in early 2017, the relationship ended. The respondent indicates that despite her working on reconciliation she discovered in January of 2017 that the applicant had a girlfriend. In February 2017, she made a complaint to the applicant’s probation officer and he was charged with breach of probation. As of that date he has not been permitted any further contact with the dog and has therefore not paid any of the related expenses. The applicant tried to suggest that he did not know that the relationship was over until after he read the newspaper article about the Airbnb on January 24, 2018. That timing is inconsistent with all the other evidence. Indeed, already by May 2017 they had both retained legal counsel.
11In September of 2017, the respondent loaded up a trailer with some of the applicant’s personal possessions -- which he claims was mostly junk – and had it left on the street outside of a property he rented.
12The application was issued on November 6, 2017. It seems to include an action in ‘detinue’, as the applicant was claiming a return of his personal property. Negotiations relating to chattels and how they would be obtained continued. In May 2018 arrangements were made for the applicant, using Mr. Large, to get more of his items from the home including his motorcycle from the garage.
13This court proceeding was substantially resolved by way of the Final Order made by Justice Swartz on July 24, 2018. Relevant to the issues in this trial that order provides:
(a) For the listing and sale of the home with an option to purchase; (b) That the carrying costs of the home (including insurance) be shared equally until the sale; (c) That the applicant maintain the respondent on his Health Benefits Plan for so long as she is eligible; and (d) At paragraph 12 “All other claims, except those related to contents of the Home, ownership of personal property not including the appliances that are to be sold with the Home, the Applicant’s safe with contents, all documents of the Applicant relating to his financial matters which he was required to leave in the home after his removal, and the ownership and residence of the dog known as Copper shall be dismissed without costs.”
14The applicant eventually pled guilty to the breach charge. On October 29, 2018, he received a suspended sentence in lieu of time served (5 days credited as 8) plus 18 months probation.
15On December 7, 2018, a Trial Scheduling Conference was held, and the issues for trial were identified as:
(a) Determination of the contents of the home on separation. (b) Ownership of contents of home located at 1352 Waterside Way. (c) Division of contents of home. (d) Return of the Applicant’s items, including the Applicant’s safe and its contents. (e) Ownership of the dog Copper (as part of Applicant’s personal items). (f) Residency of the dog Copper.
16The home was not listed for sale per the Final Order but rather on January 22, 2019 the parties signed an Agreement of Purchase and Sale whereby the respondent sold her interest to the applicant and his new partner. The closing date was set for May 1, 2019. Under “Chattels Included” all the major appliances were listed except that “washer, dryer” was crossed out and initialled. In a schedule dealing with adjustments, a draft provision provided that the respondent pay the applicant $433.95 “for the Seller’s share of insurance payments that have been paid by the buyer” but that was also crossed out and initialled.
17Counsel continued to work with the parties on the chattels issue, and in late April 2019, right before the real estate transaction closed, they clarified most of the items and positions in an exchange of correspondence. Two subsequent settlement conferences/last meetings with the court were unable to resolve the last few remaining items which are addressed under their individual headings below.
Household Contents
Legal Principles
18The questions of ownership of the chattels in this case revolve around issues of acquisition, contract, and gift. I would observe that the same distinctions of title that are common with respect to the ownership of real property (ie. joint tenancy, tenants in common, beneficial versus legal ownership, etc.) can also apply to personal property.
19The court has no general discretion to redistribute property or alter ownership. However, there is jurisdiction for dealing with the sharing of the responsibilities towards joint property. The test appears to be one of general fairness as, per section 122(2) of the Courts of Justice Act, “[a]n action for an accounting may be brought by a joint tenant …against a co-tenant for receiving more than the co-tenant’s just share.” The court also has the authority to determine ownership of property and to provide compensation for harm to property interests.
20As noted, the applicant is first and foremost seeking a return of personal property. If that is not possible and the only available remedy is an order for value in lieu, the onus is on him to prove the ownership, the loss, and the extent and quantum of the loss. It is not always necessary to call expert evidence to prove values for minor assets: Da Costa v. Da Costa, [1972] O.R. No. 384 (Ont. C.A.) at para. 37. Where there is a failure to produce proof of the value of assets, the court can estimate values, perhaps arriving at harsh choices or simply ascribing no value: Earle v. Earle, [1997] O.J. No. 1308 (Gen. Div. – Fam. Ct.). “Where the property is worthless, or the value is difficult to determine, the plaintiff may be awarded nominal damages, or an amount that the court deems reasonable in the circumstances”: Jamie Cassels and Elizabeth Adjin-Tettey, Remedies: The Law of Damages (3rd ed.), (2014, Irwin Law Inc., Toronto) at page 82. The value for household contents is generally what they would fetch on resale, and they lose their value quite markedly from their purchase price over time.
Washer and Dryer
21There is no question that the washer and dryer were purchased by the respondent for both parties jointly, per their agreement, with the consideration being that the applicant was paying for the bulk of the down payment on the home that was put into their joint names. Unlike the other major appliances that were sold with the home, the ownership of the washer and dryer, being excluded from the Agreement of Purchase and Sale, did not change.
22The respondent said that she had substantially reduced the selling price of the house and therefore her keeping the washer and dryer was “fair”. However, she cannot unilaterally change ownership of these chattels. Per the timely letters from his counsel, the applicant refused to sell, gift, or abandon his interest to her. I therefore find that the parties still own the washer and dryer jointly.
23The respondent took the washer and dryer intending to keep them. As the applicant was unable to obtain a return of these goods, he has now understandably purchased replacements. He no longer needs them back and therefore seeks value in lieu. No one suggested they be sold with the net proceeds split; that would take disproportionate resources and create further opportunities for conflict. I am prepared to estimate a value for the washer and dryer and to order that the respondent pay half to the applicant to reflect an accounting for his joint share.
24The applicant felt that the respondent originally paid $10,000 for the fridge, stove, microwave, washer and dryer, and the dining set. The respondent said that she paid $20,000 for those items not including the dining room set. There were no receipts or other evidence to support either amount or, more importantly, that set out the purchase price or current value of the disputed washer and dryer. Whatever they were worth new, they are now close to seven years old. The applicant recently bought his new washer and dryer for about $1,800 before taxes.
25In my view a very rough estimate of the current value of the washer and dryer would be $900. The respondent shall pay one half of that or $450 to the applicant within ten days.
Dining Room Table and Chairs
26Unlike the washer and dryer, resolving the issue of the dining room table and chairs, which I refer to collectively as the dining room set, first requires a determination of who owns it. The applicant bought it. She paid around $2,323 for all the pieces. The main dispute is whether it was purchased for both parties as part of their agreement.
27The applicant feels that the respondent benefited overall by keeping many of his unaccounted-for possessions that he brought to the home, such as linens, towels, coffee tables, tableware and small appliances, and it is therefore only fair he should at least have the dining room set or $1,500 in lieu. As with the washer and dryer, there was no direct evidence of its current value. The respondent disputes the inequality of the distribution of the other items, and her position is simply that the dining room set was bought by her, was not part of their original agreement, and is therefore hers.
28This is not an equalization process. The unfairness in relation to who kept all the other assets is not the test. What I am dealing with is the ownership of this particular item. The agreement -- appliances off-setting the applicant’s disproportionately larger contribution to the down payment -- was not in writing, and there was no independent evidence as to whether or not it included the dining room set. There is no doubt that there was an element of largess from the applicant in the bargain. He put more towards the down payment than the respondent’s contribution to it plus the value of the appliances. If the dining room set was included it would have made the relative overall contributions somewhat closer, but not even. The applicant is in a sense asking the court to infer the extent of his generosity or the limits to his favour.
29Without something corroborating that it was part of the respondent’s contribution, I am left with a straight “he said/she said”. In my view the applicant has failed to prove on a balance of probabilities that the dining room set was part of the original agreement, and he has therefore failed to meet his onus of establishing an ownership interest. This claim is dismissed.
Engagement Ring
30The applicant proposed marriage to the respondent. He produced an engagement ring. His evidence was that the ring was given conditional on marriage. Importantly, that was not disputed.
31The applicant’s position was that as the condition of the gift -- being marriage -- was not fulfilled, he is entitled to the ring back. The respondent’s position was that as it was the applicant’s fault that the marriage did not take place, at law she does not have to return the ring. The parties came prepared to do battle over whether it was indeed the applicant’s fault. I refused to hear that evidence, relying on section 33 of the Marriage Act, R.S.O. 1990, c. M.3, which reads as follows:
- Where one person makes a gift to another in contemplation of or conditional upon their marriage to each other and the marriage fails to take place or is abandoned, the question of whether or not the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift. R.S.O. 1990, c. M.3, s. 33.
32Not only would that evidence have been highly emotional and contentious, more importantly it would have been irrelevant: see Newell v. Allen, 2012 ONSC 6681 at paragraph 21.
33As an aside, the applicant indicated that he paid $3,500 for the ring but the receipt was in the missing safe (see further below). The respondent believed the ring could be purchased new today for about a thousand dollars less than that; she did an internet search in U.S. dollars that was not admitted into evidence. There was therefore no evidence establishing ring’s current value. However, as the respondent wants to keep it and the applicant wants it back, nothing turns on that. The respondent confirmed that she still has the ring, is not emotionally attached to it, and understood that if I determined the applicant was entitled to it, she would have to return it.
34The conditional nature of such a gift is a question of fact, but again that was not an issue. With the question of fault having been eliminated by statute, the only remaining question – one that was not even raised by the respondent – is the timing of the demand.
35Newell at paragraph 22 refers to the common-law requirement that there be a “timely demand” by the donor for the ring back. It referred at paragraph 23 to the decision in McArthur v. Zaduk, [2001] O.J. No. 2284 (S.C.J.) which held at paragraphs 59 and 61 that as the donor failed to ask for the ring back “when he broke the engagement” he was “estopped” from seeking its return. McArthur also suggested, referring to A.G.H. v. M.S.M., [1997] Q.J. 4159 (Que. S.C.), that that delay in demanding the ring back changes its character from a conditional to an unconditional gift. What happened in A.G.H. was that the ring was first given in contemplation of marriage as a conditional gift. When the relationship ended, the ring was appropriately returned. Subsequently the parties resumed cohabitation, and the ring was given again. However, that second time there was no marriage contemplated. To the contrary “the parties were resuming cohabitation on terms that were more or less excluding marriage” (paragraph 53). Therefore, on the second separation, the gift of the ring was not found to be conditional at all, and the beneficiary was entitled to keep it.
36In my view “timely demand” in Newell and “estopped” in McArthur simply refer to the usual evidentiary and equitable considerations that would apply to a dispute over a conditional gift, and not to a separate stand-alone test regarding engagement rings.
37In most cases the timing of the demand by the donor for a return of the ring would be important evidence as to the nature of the gift. A delay in requesting a return when it is clear the marriage is no longer proceeding could support a finding that the gift was unconditional. However, the conditional nature of the gift was not in issue in this case.
38As to equity, according to Black’s Law Dictionary “estoppel” means that a party is prevented by his or her own acts from claiming a right to the detriment of the other party who was entitled to rely on such conduct and has acted accordingly. “Laches” is a form of estoppel referring to an unreasonable delay in pursuing a right or claim in a way that prejudices the party against whom relief is sought. It is distinct from a limitation period -- a creature of statute not pled or raised here -- which is not dependant on a finding of prejudice. In my view it would only have become clear to the parties in early 2017 that the relationship was at an end. The applicant did not lead evidence as to when he first asked for a return of the ring, however return of personal property generally was being addressed in the negotiations between counsel soon after the defacto separation, as well as in the application that was issued on November 6, 2017. The first time the ring was specifically mentioned was in correspondence dated April 18, 2019, seven months before trial, but as noted the respondent came to this hearing fully expecting the ownership of the ring to be argued and determined based on fault. In my view, as she has not sold the ring and has no emotional attachment to it, there would be no prejudice despite the delay (such as it is) if it were ordered to be returned.
39The engagement ring was a gift conditional on a marriage that did not take place, laches does not apply, and I therefore find that the applicant still owns it and is entitled to it. The respondent shall deliver the ring to him within ten days.
Safe and Contents – Alleged Bailment
40The applicant owns a safe. There is no dispute that when the parties moved into Waterside Way in September of 2013, he brought it with him from Wilfred Crescent. The respondent said she has not seen it since. The applicant says he put it in the garage and concealed it under a wooden shelf that held the recycle bins. There was no evidence as to when he last checked on it.
41After the applicant was removed from the home he was back at least twice to get certain items before it was clear that the relationship was over. Again, there is no indication that he checked on or accessed the safe.
42In May of 2017, after efforts to save the relationship ended, the applicant through counsel asked for arrangements to be made to have items picked up from Waterside Way including the “[s]afe that is in the garage”. The respondent said that she was not willing to have him attend but would was open to arrangements through a neutral third party.
43The parties had trouble agreeing to those arrangements. The respondent wanted the applicant to take all his possessions at one time, indicating that she did not want to be responsible for storing them. The applicant argued that as a joint owner of Waterside Way he was entitled to store his items there and asserted that the respondent was a “bailee” and therefore responsible for his property.
44A letter from the applicant’s counsel dated September 19, 2017, indicates that arrangements were being made for the “delivery” of items and he indicated that he “would also like the safe delivered or made available for pick up”. As noted, around that time the respondent dropped off a trailer of inconsequential items which did not include the safe. Arrangements were also being proposed for Steve Large to retrieve the applicant’s motorcycle and riding equipment.
45Some time passed, and on April 25, 2018 the applicant’s counsel again wrote seeking to have a number of items, most notably the motorcycle and related gear, retrieved by one of several named third parties including Steve Large. Some of those items were located in the garage, but the safe was not mentioned. The respondent agreed, indicating that she did not know the whereabouts or existence of some of the mentioned items. That prompted a response from the husband through his counsel on May 4, 2018 pointing out their last known location in the home and, although it was not part of the discussion, also mentioning the safe as being “in the garage beside the stairs leading to the laundry room.”
46Mr. Large picked up the motorcycle and related items in early May 2018, as confirmed by a letter from the applicant’s lawyer dated May 15, 2018. In that same letter the applicant’s lawyer indicated that the respondent had continued to stay silent on “returning” the safe, suggesting that “if” it is not where it is supposed to be, she must have moved it. He added that the applicant maintained that there were “many important papers in the safe … as well as other items.” He asked for a suitable date for the applicant to retrieve it.
47The Final Order was made on July 24, 2018, specifically preserving the safe as an issue.
48On August 22, 2018, the respondent’s lawyer wrote “[r]egarding the safe, my client has still not found it, despite her reasonable efforts”. Almost three months later, on November 14, 2018, the applicant’s lawyer wrote back saying “[t]he safe remains of extreme importance to my client.” Two weeks later the respondent’s lawyer replied “[a]s previously indicated, Ms. Mann has no idea where the safe is.” As noted, the Trial Scheduling Endorsement dated December 7, 2018 preserved “[r]eturn of the Applicant’s items, including the Applicant’s safe and its contents” as an issue for trial.
49Three letters were in evidence from April of 2019 reflecting an effort to resolve most of the chattel issues before the real estate deal closed. The applicant’s lawyer inquired what items the respondent wanted “aside from the safe and contents as well as the dog Copper”. He then provided a list of items the applicant wanted (three pages) ending with “[o]f course, Glenn would like the return of his safe …” The respondent’s lawyer’s office responded to the various items and commented “Sharon is not aware of the safe being in the house. She has never seen it.” As already noted, she does not dispute that it came over when they moved in.
50The applicant indicates that when he purchased the home from the respondent, the safe was not there.
51As to value, there was no evidence as to the actual nature or type of the safe, other than the applicant describing it as large and heavy, and no evidence as to its worth. There was some challenged evidence about its contents. In his oral evidence the applicant indicated that along with papers, the safe also contained various coins that he had purchased, namely duplicate ‘year sets’ for about fifteen years from the Canadian Mint (penny, nickel, dime, quarter, and loonie for each year), and some other collectible currencies and used silver dollars. He said that he did not have a number as to what he paid but that he had been on the internet and determined that the lot was worth between $7,000 and $10,000. His opinion as to value was not detailed or admitted, and there was no expert or other evidence, such as insurance papers, corroborating the existence of the coins or their value. The applicant was generally attuned to insurance. He looked after it for the home in tandem with his two other properties, and when he learned about the Airbnb he looked into the insurance implications and insisted that additional coverage be obtained. However, there was no evidence of a special rider on his policy for a valuable coin collection. The respondent indicated that the first time she heard about any coins was right before trial. In 2018 when the respondent said she did not know where the safe was, no insurance claim was made even though the applicant suspects that an Airbnb boarder may have stolen it.
52The applicant is asserting bailment which, if established, would have a tactical legal advantage for him over a claim in negligence or as formally pled in detinue. A bailment situation would place a heavy duty of care on the respondent to have kept the safe secure and to return it to him, and if it has gone missing it would reverse the burden of proof to the respondent to establish that her negligence or lack of reasonable care did not cause the loss: Robert H. Tanha, The Law of Bailment, (Toronto: Irwin Law, 2019) at pages 2 and 5 (“TLB”).
53“Bailment” is defined as “the voluntary transfer of personal property from one party (the bailor) to another (the bailee) for safekeeping with or without consideration”: TLB at page 1.
Creation of Bailment Relationship: Voluntariness
54When the applicant indicated to the respondent that he considered her the bailee of his goods, she refused indicating that she did not want to be responsible for them and wanted him to take everything, which he refused to do. As noted in Visscher v. Triple Broek Holdings Ltd., 2006 ABQB 259 at paragraph 31: “Bailment is a voluntary relationship and cannot be imposed. The term "involuntary bailee" is an oxymoron. The bailee must agree to the bailment.”
55However, the question of whether a bailment relationship existed is not dependent on the applicant verbally asserting one, rather it arises when all the required elements are present.
56When the parties were together and the relationship was intact, there would have been an expectation that if either left the home when the other stayed, the latter would take care of its contents. This would have been usual and voluntary. It would not have been bailment, however, as both parties still had unfettered access to their own goods: Bonnell v. Bonnell, [2002] N.J. No. 137 (Nfld. S.C.) at paragraph 22. The level of control over the bailed property has been described as the “key” factor to a bailment relationship: Dodd v. Johnson, [2010] O.J. No. 6195 (S.C.J.) at paragraph 18.
57Thus, when the applicant was removed from the home by the police and was precluded from returning, his personal property including his safe (if it was still there) would then have been in the respondent’s sole control. It follows that, with no change to the voluntary nature of her possession (at that point), a bailment relationship was created. In Hynes v. Hynes, [1995] N.J. No. 8 (Nfld. Prov. Ct. (Sm. Cl. Div.)) the defendant husband who “threw” the plaintiff wife out of the home was found to be a bailee of her personal property. This would accord with the reasonable expectations of the parties. The defendant there and the respondent here had a history of protecting the bailor’s chattels. As noted in TLB at pages 163 and 164 and the cases already cited, lack of access to or control of the goods by the bailor supports a finding of bailment, as does a transfer of exclusive possession of the goods to the bailee (TLB at page 40).
58However, as already noted, bailment is a voluntary relationship and it cannot be “foisted” on the bailee (TLB at page 9). Therefore, when the respondent told the applicant she wanted him to get all of his personal property and that she did not want to be blamed for any damage or missing items, the voluntary nature of her possession or control ended. While the applicant may have been correct in asserting that the respondent had “no right” to dictate to him what items of his could be stored on the jointly owned property, in my view he was wrong in asserting that his decision to leave them there imposed an indefinite continuation of the bailment relationship. Once the purpose of the bailment is over and the bailor has been put on notice and given a reasonable opportunity to pick up his or her property, the bailee’s duty of care will end: Davis v. Henry Birks & Sons Ltd., [1982] B.C.J. No. 2128 (C.A.).
59In my view the point at which the applicant would have been deemed to have had a reasonable opportunity to pick-up his safe (again assuming it was still there) and other chattels, was when Mr. Large attended the home on his behalf in May of 2018. That would have concluded the bailment that started in October of 2015.
Proof of Loss
60In part because of the higher duty and reverse onus on the bailee, it is critical for the bailor (applicant here) upon establishing a period of bailment to also clearly and convincingly establish that the loss occurred during the course of that bailment: Calgary Transport Services Ltd. v. Pyramid Management Ltd., [1976] A.J. No. 551 (C.A.) at paragraph 18; Rowsell v. Fountain Tire (Fort St. John) Ltd., 2005 BCPC 42 at paragraph 15; and TLB at pages 86, 87, 95, and 104. The property must have been in the bailee’s possession: “delivery” is an essential component of bailment: Heffron v. Imperial Parking Co., [1974] O.J. No. 1906 (C.A.) at paragraph 12. Was the safe in the home between October of 2015 and May of 2018?
61There was no evidence of the safe being checked on after the parties moved into the Waterside Way in September 2013. There was no evidence establishing that it was still in the garage as of October of 2015 when the applicant was removed from the home. When he briefly returned shortly afterwards -- those two times still in 2015 -- there was no indication that he checked on the safe. The respondent denies seeing the safe at any time after they moved into Waterside Way. While I accept the applicant’s argument that he would not have been pressing to get the safe prior to January of 2017 (as he was still expecting to reconcile), he led no evidence to establish that the safe was still in the garage up until that time.
62After that, when Mr. Large was in the garage on the applicant’s behalf in May of 2018, he was not tasked with either getting the safe, getting the most important contents out of the safe, or at the very least simply checking on the safe to see if it was still there. Instead, immediately afterwards the applicant through his lawyer was seeking another date to arrange to get the safe. Coincidentally, it was only after that point that there are references in the correspondence to items in the safe being “important”; the valuable coin collection was not mentioned until much later.
63In my view, the applicant has not established the time period within which the safe went missing. It could have been any time after they moved into Waterside Way in September of 2013, including the non-bailment periods before October of 2015 and after May of 2018.
64I would add that, while the above addresses the safe, a distinction needs to be made between it and its contents. While the respondent may have been responsible for the safe itself had it been established that it went missing during the bailment period, the same does not necessarily follow for the coin collection. The evidence does not establish that the respondent was ever told about it. Her lack of awareness and indeed inability to determine the exact contents of the property she was allegedly storing for the applicant creates a problem for him: “an inability to access the bailor’s goods, or to know their character, strains against the finding of a bailment and may well undermine the bailee’s ability to safeguard the goods” (TLB, page 30 footnote 126). The delivery or transfer of possession of specific items becomes problematic when the purported bailee did not have access to the container or know what was in it: Complex Elements Corporation v. Atlantic Container Line at paragraph 17. Certainly, more attention may have been paid to the safe by the respondent had she known that it contained very valuable items, and indeed the same might also be said of the applicant.
Summary
65For the reasons stated, while I find that there was a bailment situation between the parties, it has not been established that the safe was in the respondent’s control or went missing during the operative time. Had I found otherwise, in my view the bailment would have applied to the safe itself but not to the alleged coin collection.
66The failure to find bailment does not mean that the respondent is absolved from liability, but in this case for those same reasons I find that the applicant has not made out a claim in negligence or detinue. The respondent cannot owe a duty of care to the applicant or be required to return the safe when it has not been established that it was in her care when it went missing. Indeed, there is an element of contributory negligence and/or a voluntary assumption of the risk on the part of the applicant. He knew that there was no lock between the garage and the laundry room, yet after learning of the Airbnb all he did was insist on additional insurance. Assuming it was still there, he directed Mr. Large to obtain the motorcycle but not the safe.
67In addition to all the above, I would lastly observe that the damages as sought have not been proven on a balance of probabilities. No value was given for the safe. The applicant’s internet search right before trial cannot be relied on as an opinion as to value of its contents. It is suspicious that the coins became an issue so late in the litigation process when their purported worth far outweighs that of any the other disputed personal property item (except the dog).
68The applicant’s claim related to the safe and its contents is dismissed.
The Dog ‘Copper’
69The applicant says Copper was a gift to him and, although he has not seen him since he was charged with the breach in February of 2017, he loves him and wants him back. The respondent denies the gift, says Copper has always been her dog, and indicates she has no intentions of sharing him or letting him go. There was no suggestion that either party ever neglected Copper, and both concede that the other took good care of and loves the dog.
Law
70Notwithstanding the universal agreement in the case law that dogs, being sentient beings, are a special, important, and unique category of personal property, for the purposes of practicality and expediency the law continues to hold that disputes over dogs are to be approached in the same manner as with any other personal property, namely the relevant question is ownership: Warnica v. Gering, [2004] O.J. No. 5396 (S.C.J.) at paragraph 28, affirmed 2007 ONCA 86 at paragraph 6; Thompson v. Thompson, [2005] B.C.J. No. 3084 (B.C.S.C) at paragraph 25; Anderson v. Anoine, [2006] N.W.T.J. No. 51 (N.T.S.C.) at paragraph 29; Henderson v. Henderson, 2016 SKQB 282 at paragraph 23; McIntosh v. Daoust, 2016 M.J. No. 219 (Man. Q.B.) paragraph 17; MacDonald v. Pearl, [2017] N.S.J. No. 93 (N.S. Sm. Cl. Ct.) at paragraph 25b.; Brown v. Larochelle, [2017] B.C.J. No. 758 (B.C. Prov. Ct.) at paragraphs 11 and 16; and Baker v. Harmina, 2018 NLCA 15 at paragraph 12.
71There is no dispute that the respondent purchased the dog. She was the sole owner. Therefore, the narrow question is whether the applicant has established on a balance of probabilities that her ownership changed. While there are several ways that could happen, the applicant spending time with the dog, spending money on the dog, and/or treating the dog generally as the family pet, would not affect a change in ownership: Warnica at paragraph 28, McIntosh at paragraph 11, and Baker at paragraphs 13 and 27. In fairness, the applicant did not make those arguments. Rather, he asserted that there was an explicit moment of gifting, namely when the dog was first introduced to him.
72It is trite law that the required elements to establish a gift are intention of the donor to give, delivery of the gift, and acceptance of the gift by the donee.
Intention to Give
73The parties had discussions about getting a dog. The respondent clearly indicated she wanted one. The applicant was equally clear that he did not want a dog. One reason he gave was allergies. In 2015, despite the lack of agreement, the respondent bought a Coca Shih Tzu puppy. She did so without the applicant’s knowledge or consent and indeed in the face of his opposition. She said that she simply wanted a dog and loved pets. She also said that she thought it would be good for the applicant’s PTSD. The breed, or mixed breed, is known to be hypoallergenic.
74The day that she purchased the puppy the applicant came home from work at lunch, saw it, and was not happy. He then claims that the respondent said to him “I bought it for you” or “look what I got you”.
75Objectively, those statements given their timing do not indicate an intention to gift. It was more like when one partner cooking porridge for himself says to the other who hates porridge “look what I made you”. The word I think is facetious. In the context of the applicant’s clear opposition, those statements do not indicate that the respondent was seriously intending to make a gift. There was no birthday, anniversary, or other occasion that would prompt the giving of a gift. It would be very odd for the respondent to buy the dog she had long wanted and then immediately give it away to someone who up to that point was clearly indicating that he did not want a dog.
76Granted, there was a marked change in the applicant himself moments after being introduced to his new housemate. In his own words from his closing submissions “there is no doubt I did not want a dog, but it was thrust upon me, and within minutes my heart changed, and I fell in love.” While that explains his own attitude and emotions, it does not change the respondent’s intentions.
77The parties discussed names, the respondent proposed a name the applicant did not like, and he then came up with the name ‘Copper’ which they both liked. It was in reference to his occupation as a police officer. Providing the name alone does not affect a change in ownership. The parties were living together in a committed relationship at the time and Copper was going to be treated as the family dog.
78In my view the applicant has not made out an intention by the respondent to gift the dog to him.
Delivery
79As to delivery, there was no evidence as to when that would have happened. The respondent purchased the dog and his food and water dishes were already on the floor in the home when the applicant arrived for lunch. After lunch, the dog remained with respondent in the home that she jointly owned. Indeed, it remained there with her until the home was finally sold, and then went with her to her new residence. It has not been established that the dog was delivered from the respondent’s possession to the applicant.
Acceptance
80While the respondent hoped the applicant would take to the dog and that it would help him with his PTSD, at the moment of the alleged gifting the applicant was still opposed to the idea of a dog in the home. He did not say happily “for me?”, “thank-you so much”, or “just what I wanted”, or even something more artificial like “I accept your gift”. Any one of those or any such like responses or behaviours might have triggered a conversation clarifying ownership. Instead, the applicant admits that he was not happy. That he fell in love with the dog very soon afterwards and accepted him into his home is undisputed, but this change was not contemporaneous with the alleged gift giving event. Just as a person right after giving a gift has no right to it back, when a person rejects or fails to accept a gift the requirements of gifting have not been met. The intended recipient cannot revive a previously rejected or incomplete gift by later accepting it, rather it would need to be re-offered. Further, the applicant’s accepting the dog into his life and heart does not equate to his communicating acceptance of the alleged gift to the respondent.
Other Evidence Relating to a Change of Ownership
81The parties disputed who was responsible for the dog’s care and expenses (buying food, taking and paying for the vet and grooming, etc.) while they were living together with intentions to marry. The respondent indicates that whenever there was a problem with the dog, the applicant would say to her “you bought it, you deal with it.” However, I find in the face of the contradictory evidence that that there was indeed shared responsibility initially for what was being treated as a much-loved family pet. But that was relatively short lived. Assuming Copper was two to three months old when purchased as a puppy, he was just eight months old when the applicant was removed from the home.
82After that, the applicant’s position that he owned the dog is contradicted by the way the parties conducted themselves. Following their physical separation in October of 2015, the respondent controlled the applicant’s contact. He asked to see Copper, which she allowed. After going to the applicant, the dog was always returned to her care. After the breach charge in February 2017, the respondent did not allow the applicant any further contact. It was not even clear when he first asserted his ownership claim. Granted, his pleadings seek return of personal property which is wide ranging, but Copper as a special and unique form of personal property was not specifically mentioned. The initial letters between counsel regarding personal items, while referring to things like the safe and motorcycle, did not mention the dog. The first time that ownership or residence of Copper appears as an issue in the evidentiary record is in the Final Order of July 24, 2018, over a full year after the applicant’s last contact.
Conclusion
83In my view the applicant has not established any one, and certainly not all, of the three elements of a gift on a balance of probabilities. The respondent owns Copper. The applicant’s claim to him is dismissed.
Issues Arising Out of the Final Order
84At the request and on consent of the parties, the pleadings are deemed to be amended to include two issues relating to alleged non-compliance with the Final Order. Given that the parties elected not to call anyone on their combined witness lists, I determined that the minimal extra time needed at the hearing to accommodate these issues was available. Dealing with the matters now would be a better alternative than sending the parties away for a new process when finality is what they are seeking.
Claim of Respondent – Health Benefits
85The Final Order of July 24, 2018 provides at paragraph 10:
- The Applicant will maintain the Respondent on his Health Benefits Plan through his employment for so long as the Respondent is eligible for coverage under the terms of the plan.
86The respondent complains that she is no longer on the plan. She wants to be reinstated. However, she did not coherently develop that claim. There were no plan documents in evidence. She did not cross-examine the applicant on his brief explanation as to why she was removed. If she was seeking damages in lieu, she led no evidence as to when she was removed or the extent of her loss. It was not clear whether she had a plan herself working for the Department of National Defence and was just seeking coverage for her deductible.
87The applicant indicated that the respondent had qualified on his plan as his common law partner, and once he had a new common law partner the respondent was removed by operation of the plan; you cannot have two such dependants. That makes some sense. There is no question that the applicant was in a new relationship, perhaps as far back as January of 2017, and that he and his new partner together purchased Waterside Way from the respondent. Negotiations regarding the Agreement of Purchase and Sale were underway in January 2019 and may well have started before then.
88In summary, there is no evidence establishing that the respondent was prematurely removed from the Health Benefits Plan or what loss, if any, that would have caused. This claim is dismissed.
Claim of Applicant - Home Insurance
89The Final Order of July 24, 2018 at paragraph 5 provides:
- Until the home is sold, the parties shall continue to share the carrying costs equally, being the mortgage, insurance and taxes.
90The applicant wanted the insurance adjustment to be included in the Agreement of Purchase and Sale, but the respondent refused. However, nothing in the APS eliminated this obligation. Indeed, the applicant’s lawyer made it clear in correspondence that the claim was not being relinquished. The respondent therefore still owed him her share.
91The respondent’s position was that she did not pay because she was never billed; it was never explained to her what her share was. Indeed, the applicant has provided her and the court with different numbers, and there is no evidence that he has backed any of them up with bills or an explanatory calculation. The number proposed in the APS was $433.95. The number the applicant mentioned in his evidence was $390. In his closing submissions it was $370.
92The applicant explained generally that he has two rental units and got a better deal or discount on insurance by rolling all three properties into one policy. I appreciate that may make it difficult to unravel the cost for just Waterside Way. However, I would have expected him to have some calculation readily available, as he would have likely been claiming those rental expenses as deductions on his income tax returns. Again, there were no receipts or records, no breakdown (ie. did he calculate the period as being from the very date of the Final Order to the very date of closing and do it accurately?), and no tax documents in evidence that set out the respondent’s half of the actual carrying costs.
93As there is a clear obligation, I considered but ultimately decided against estimating a number. There is no simply evidence on which to base that calculation, which would leave me guessing. The onus was on the applicant to prove his claim and he has failed to do so. It is therefore dismissed.
Decision
94Orders to go as set out above. The success here is clearly divided, in my view almost evenly. No order as to costs.
Mr. Justice Timothy Minnema Released: January 7, 2020