Eckdhal et al. v. Long, 2014 SKCA 115

• Judge: Ottenbreit, Caldwell and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 15, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKCA 115;(2014), 446 Sask.R. 207 (CA)

Eckdhal v. Long (2014), 446 Sask.R. 207 (CA);

    621 W.A.C. 207

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. NO.019

David Long (defendant/appellant) v. Marlene Van Burgsteden (plaintiff/respondent)

(CACV2254; 2014 SKCA 115)

Indexed As: Eckdhal et al. v. Long

Saskatchewan Court of Appeal

Ottenbreit, Caldwell and Whitmore, JJ.A.

November 14, 2014.

Summary:

The plaintiffs purchased trees for their landscaping business and planted them on land belonging to the Braggs pursuant to a verbal agreement. That land was later sold to the defendant. The defendant knew of the arrangement that the plaintiffs had with the Braggs and he knew that the trees did not belong to the Braggs. The defendant destroyed the trees by fire and/or having them mulched. The plaintiffs sued.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2012), 394 Sask.R. 163, allowed the action with costs. The plaintiffs applied for a review of costs, seeking double costs from and after December 21, 2011, when the defendant was served with an offer to settle.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2012), 396 Sask.R. 291, allowed the application. The defendant appealed. The plaintiffs cross-appealed.

The Saskatchewan Court of Appeal allowed the appeal in part and dismissed the cross-appeal.

Courts - Topic 587

Judges - Duties - To decide according to evidence and pleadings - The plaintiffs, Eckdhal and VanBurgsteden, purchased trees for their landscaping business and planted them on land belonging to the Braggs pursuant to a verbal agreement - That land was later sold to the defendant - The defendant knew of the arrangement that the plaintiffs had with the Braggs and he knew that the trees did not belong to the Braggs - The defendant destroyed the trees by fire and/or having them mulched - The plaintiffs sued, seeking to establish the defendant's liability for the destruction of the trees on five footings: (i) lease, (ii) profit á prendre, (iii) negligence, (iv) nuisance, and (v) breach of contract - The trial judge allowed the action, finding liability on two fresh footings, i.e., (1) contractual license and proprietary estoppel; and (2) conversion - The defendant appealed, asserting that the trial judge erred when she determined liability on the basis of legal theories that were neither pled, nor argued at trial - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge erred in law by resting her finding of liability on two theories that had not been pleaded or tested at trial - However, the trial decision could be sustained if, on an examination at the appellate level and after having received the submissions of appellate counsel, it was clear no other evidence would have been adduced at trial had the appellant been notified of the new theory of liability before trial or at trial and the correctness of the trial judge's finding of liability on the basis of the fresh theory advanced in the judge's reasons is borne out - In other words, regardless of her error, if the evidentiary record was complete and the trial judge was correct in her application of the law to the facts and thereby correctly found the defendant liable, then the result would nevertheless withstand appellate scrutiny - On the other hand, if the defendant was prejudiced by an inability to adduce evidence on the point or the trial judge was not correct in her finding of liability on both of the two fresh theories, then the court would have to dismiss the claim against the defendant, as there would then be no remaining legal theory upon which to ground his liability for the loss of the trees - Here, the defendant had not taken issue with the evidentiary record, had not sought to adduce fresh evidence on appeal and had not suggested he had lost a right of cross-examination on a point of evidence or suffered any similar prejudice - Rather, he asserted under the remaining grounds of appeal, that the two fresh theories of liability were not borne out by the facts - In that respect, the court accepted that the remaining questions for the court were ones of law involving the application of the two legal theories to the facts - See paragraphs 15 to 22.

Damage Awards - Topic 512

Torts - Injury to goods or personalty - Replacement cost - The plaintiffs, Eckdhal and VanBurgsteden, purchased trees for their landscaping business and planted them on land belonging to the Braggs pursuant to a verbal agreement - That land was later sold to the defendant - The defendant knew of the arrangement that the plaintiffs had with the Braggs and he knew that the trees did not belong to the Braggs - The defendant destroyed the trees by fire and/or having them mulched - The plaintiffs sued for damages - The trial judge allowed the action, awarding damages of $56,179.93 - The defendant appealed - The plaintiffs cross-appealed, asserting that the trial judge erred by arbitrarily discounting the damages by 25% - The Saskatchewan Court of Appeal dismissed the cross-appeal - The trial judge had sufficient support for her assessment of the damages and, specifically, to reduce the damages award as she did - See paragraphs 45 to 49.

Damage Awards - Topic 2010

Exemplary or punitive damages - General - The plaintiffs, Eckdhal and VanBurgsteden, purchased trees for their landscaping business and planted them on land belonging to the Braggs pursuant to a verbal agreement - That land was later sold to the defendant - The defendant knew of the arrangement that the plaintiffs had with the Braggs and he knew that the trees did not belong to the Braggs - The defendant destroyed the trees by fire and/or having them mulched - The plaintiffs sued for damages and sought punitive damages - The trial judge allowed the action and awarded punitive damages of $9,900 ($100 per tree) - The defendants appealed - The Saskatchewan Court of Appeal allowed the appeal in part, setting aside the award for punitive damages - The defendant's actions did not attract an award of punitive damages - True, he destroyed the personal property of another whilst knowing it was not his property, but he was liable for that conduct under the tort of conversion and the doctrine of proprietary estoppel - In depriving the plaintiffs of the trees, he exercised his legal rights as the holder of title in fee simple to the lands on which the trees were planted - Finally, the defendant's conduct during the course of this litigation was not such that it attracted an award of solicitor-client costs, as the plaintiffs had sought - Therefore, it was safe to assume the trial judge did not consider the defendant's actions as being disrespectful of the administration of justice - In sum, the defendant's conduct with respect to the trees was worthy of censure, but it was not "malicious, oppressive and high-handed misconduct that offends the Court's sense of decency" or so "extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment" as an independent actionable wrong - See paragraphs 39 to 43.

Estoppel - Topic 1324

Estoppel in pais (by conduct) - Acquiescence or encouragement - Proprietary estoppel - [See Personal Property - Topic 704 ].

Personal Property - Topic 704

Licences - What constitutes a licence - The plaintiffs, Eckdhal and VanBurgsteden, purchased trees for their landscaping business and planted them on land belonging to the Braggs pursuant to a verbal agreement - That land was later sold to the defendant - The defendant knew of the arrangement that the plaintiffs had with the Braggs and he knew that the trees did not belong to the Braggs - The defendant destroyed the trees by fire and/or having them mulched - The plaintiffs sued - At issue, inter alia, was whether the plaintiffs had a proprietary interest in the trees - The trial judge found that the agreement between the plaintiffs and the Braggs was a gratuitous license which allowed VanBurgsteden to store her trees on the Bragg land and to access those trees for the purpose of maintaining and selling them - The defendant appealed, asserting that the trial judge's theory of his liability based on gratuitous licence and the principles of proprietary estoppel failed because there was no actual relationship between him and the plaintiffs - The Saskatchewan Court of Appeal dismissed the appeal - A direct relationship was not required by the doctrine of proprietary estoppel - It would be unconscionable to allow the defendant to insist on his strict legal rights to destroy trees planted on his land in circumstances where he clearly knew the trees were owned by the plaintiffs and were subject to the terms of her bargain with the Braggs - See paragraphs 23 to 30.

Torts - Topic 1417

Nuisance - Injury to property - Neighbouring owners - Trees and crops (incl. roots) - The plaintiffs, Eckdhal and VanBurgsteden, purchased trees for their landscaping business and planted them on land belonging to the Braggs pursuant to a verbal agreement - That land was later sold to the defendant - The defendant knew of the arrangement that the plaintiffs had with the Braggs and he knew that the trees did not belong to the Braggs - The defendant destroyed the trees by fire and/or having them mulched - The plaintiffs sued - The trial judge allowed the action - There was no question that the trees damaged by the fire, as well as those trees that remained unharmed were later mulched at the request of the defendant - The defendant was solely responsible for the destruction of the trees - He destroyed them knowing full well that they were the property of the plaintiffs and that the plaintiffs had not "abandoned" them - In short, he converted the trees to his own use and destroyed them - The Saskatchewan Court of Appeal affirmed the decision - See paragraphs 31 to 38.

Torts - Topic 3093

Trespass - Trespass to goods - Conversion - What constitutes conversion - [See Torts - Topic 1417 ].

Torts - Topic 3105

Trespass - Trespass to goods - Conversion - Defences - [See Torts - Topic 1417 ].

Cases Noticed:

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 11].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 11].

Hashemian v. Wilde et al., [2007] 2 W.W.R. 52; 289 Sask.R. 105; 382 W.A.C. 105; 2006 SKCA 126, refd to. [para. 11].

Lynch v. Hashemian - see Hashemian v. Wilde et al.

North Western Salt Co. v. Electrolytic Alkali Co., [1914] A.C. 461 (H.L.), refd to. [para. 17].

Online Constructors Ltd. v. Speers Construction Inc. (2012), 522 A.R. 227; 544 W.A.C. 227; 2012 ABCA 132, refd to. [para. 17].

Sumner v. PCL Constructors Inc. et al., [2012] 1 W.W.R. 649; 515 A.R. 231; 532 W.A.C. 231; 2011 ABCA 326, refd to. [para. 17].

Canada Trustco Mortgage Co. v. Renard et al. (2008), 259 B.C.A.C. 140; 436 W.A.C. 140; 298 D.L.R.(4th) 216; 2008 BCCA 343, refd to. [para. 17].

Northey-Taylor et al. v. Casey et al., [2008] 9 W.W.R. 112; 429 A.R. 302; 421 W.A.C. 302; 2008 ABCA 149, refd to. [para. 17].

Rodaro et al. v. Royal Bank of Canada et al. (2002), 157 O.A.C. 203; 59 O.R.(3d) 74 (C.A.), refd to. [para. 17].

Clarke v. Johnson et al. (2014), 318 O.A.C. 186; 371 D.L.R.(4th) 618; 2014 ONCA 237, refd to. [para. 25].

Schwark et al. v. Cutting (2010), 261 O.A.C. 262; 316 D.L.R.(4th) 105; 2010 ONCA 61, refd to. [para. 25].

Scholz v. Scholz (2013), 340 B.C.A.C. 151; 579 W.A.C. 151; 2013 BCCA 309, refd to. [para. 25].

Trethewey-Edge (Dyking District) v. Coniagas Ranches Ltd. et al. (2003), 180 B.C.A.C. 258; 297 W.A.C. 258; 224 D.L.R.(4th) 611; 2003 BCCA 197, refd to. [para. 25].

Parkdale Nifty Fifties Seniors Association v. Parkdale Community Association et al. (2012), 536 A.R. 301; 559 W.A.C. 301; 2012 ABCA 301, refd to. [para. 25].

Ford et al. v. Kennie et al. (2002), 210 N.S.R.(2d) 50; 659 A.P.R. 50; 2002 NSCA 140, refd to. [para. 25].

Carling O'Keefe Breweries of Canada Ltd. v. Anheuser-Busch Inc. (1986), 68 N.R. 226 (F.C.A.), refd to. [para. 25].

Petrogas Terminals Corp. v. Shurygalo (2013), 413 Sask.R. 247; 2013 SKQB 69, refd to. [para. 25].

Ryan v. Moore et al., [2005] 2 S.C.R. 53; 334 N.R. 355; 247 Nfld. & P.E.I.R. 286; 735 A.P.R. 286; 2005 SCC 38, refd to. [para. 25].

Stiles v. Tod Mountain Development Ltd., [1992] B.C.T.C. Uned. 274; 88 D.L.R.(4th) 735 (S.C.), refd to. [para. 26].

T.D.L. Petroleums Inc. v. Montreal Trust Co. et al., [2002] 10 W.W.R. 633; 223 Sask.R. 276; 277 W.A.C. 276; 2002 SKCA 91, affing. 2001 SKQB 360, refd to. [para. 26].

Montreal Trust Co. v. Williston Wildcatters Co. - see T.D.L. Petroleums Inc. v. Montreal Trust Co. et al.

Kuwait Airways Corp. v. Iraqi Airways Co. et al., [2002] 2 A.C. 833; 291 N.R. 1 (H.L.), refd to. [para. 32].

Boma Manufacturing Ltd. et al. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727; 203 N.R. 321; 82 B.C.A.C. 161; 133 W.A.C. 161, refd to. [para. 32].

Potash Corp. of Saskatchewan Inc. et al. v. Barton (2013), 427 Sask.R. 206; 591 W.A.C. 206; 369 D.L.R.(4th) 275; 2013 SKCA 141, refd to. [para. 39].

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 39].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [para. 39].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2), [2002] 1 S.C.R. 678; 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201; 2002 SCC 19, refd to. [para. 39].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 47].

Counsel:

Melvin R. Annand, Q.C., for the appellant;

Peter V. Abrametz, for the respondent.

This appeal and cross-appeal were heard on April 15, 2014, by Ottenbreit, Caldwell and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Caldwell, J.A., on November 14, 2014.