Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2022-06-21 Docket: C69666

Judges: Benotto, Zarnett and Sossin JJ.A.

Between: Peter Letwin Plaintiff (Appellant)

And: Camp Mart, Camp Mart Canada and 401 Auto RV Canada Inc. Defendants (Respondents)

Counsel: David Thompson and Alex Vigneault, for the appellant Wendy Ngai, for the respondents

Heard: June 14, 2022

On appeal from: the judgment of Justice Howard Leibovich of the Superior Court of Justice, dated June 21, 2021, with reasons reported at 2021 ONSC 4175.

Reasons for Decision

[1] On September 1, 2016, the appellant purchased a recreational trailer from the respondents. The respondents agreed to store the trailer at their dealership until October 31, 2016. The parties signed a storage agreement with a price of $0. Before the end of October, the appellant asked the respondents if he could leave the trailer at the dealership until the spring because his campsite was not ready. The respondents agreed to continue storing the trailer for free.

[2] The appellant was to pick up and inspect the trailer on May 16, 2017. The day before, in anticipation of the appellant’s inspection, the respondents moved the trailer to the entrance of the dealership’s service department so the appellant would have easy access. At the crack of dawn the next day, the trailer was stolen. As seen on security video, thieves arrived, cut the bolt on the front gate, hitched the trailer and were gone in under five minutes.

[3] The appellant – who had not insured the trailer – brought an action against the respondents in negligence.

[4] The trial judge found that the respondents were gratuitous bailees and consequently the standard of gross negligence applied. He concluded that the respondents met the standard of care.

[5] The appellant submits that the trial judge erred by: (i) concluding that the respondents were gratuitous bailees rather than bailees for reward and applying the wrong standard of care; (ii) failing to consider the reasonable foreseeability of a third-party theft; and (iii) misapprehending the expert evidence.

[6] Whether the respondents were gratuitous bailees or bailees for reward is of no moment because the trial judge’s reasons make it clear that he found no negligence on the part of the respondents, whether gross negligence or not. As he stated at para. 77 of the reasons:

When looking at all of the circumstances, I find that the defendants have shown that they were not grossly negligent and kept the RV as a prudent owner might reasonably be expected to keep its own RV in similar circumstances. [Emphasis added.]

[7] The trial judge found that the reasonable foreseeability of theft by a third party had been addressed by the respondents with an upgraded security system including periodic security patrols, a large ditch around the property, and a locked gate.

[8] The appellant submits that the trial judge misapprehended the evidence by preferring the evidence of the respondents’ expert and then seemingly ignoring his expert’s evidence that there were other steps that could have been taken to improve the security.

[9] We do not agree that the trial judge misapprehended the expert evidence. Nor do we conclude that it would have made a difference to his conclusions. The trial judge came to his own conclusions based on all of the evidence, independent of the expert’s evidence. His conclusions included, in part, the following:

• While not perfect, the respondents’ security system was a reasonable one;
• No security system would stop a motivated thief. In this case, it is evident that the thieves knew the respondents’ system as the theft took place during the hour and a half gap between sunrise (when the patrols stop) and the arrival of the staff at 7:30 a.m. It was reasonable to assume that the trailer would be fine during a brief unpatrolled time during daylight;
• The respondents did not have a history of security breaches with their new system;
• The trailer was not routinely parked in front of the building;
• A blocker car may have helped but could have been pushed aside;
• While the bolt could have been stronger and a hitch lock would have helped, there was no evidence of their use in dealerships;
• There are no set security standards for recreational vehicle dealerships.

[10] The trial judge recognized that all the experts pointed out that the weakness in the security system was the front gate. He also recognized that the respondents’ expert testified that, if asked, he would have advised the respondents to improve the front gate security. The trial judge was aware of this evidence when he concluded that the respondents kept the trailer as a prudent owner might reasonably be expected to do. He was not required to find that because a security system could be improved it must fall below the standard of care. There was no misapprehension of the evidence.

[11] For these reasons, the appeal is dismissed with costs in the agreed upon amount of $20,000 inclusive of disbursements and HST.

“M.L. Benotto J.A.”

“B. Zarnett J.A.”

“L. Sossin J.A.”