Stewart v. Gustafson, (1998) 171 Sask.R. 27 (QB)

• Judge: Klebuc, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 15, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 171 Sask.R. 27 (QB);1998 CanLII 14001 (SK QB);1998 CanLII 14001 (FCA);[1999] 4 WWR 695;[1998] CarswellSask 581;[1998] SJ No 614 (QL);171 Sask R 27

Stewart v. Gustafson (1998), 171 Sask.R. 27 (QB)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. OC.002

Charles Allan Stewart and Helen Stewart (plaintiffs) v. Kirk Michael Gustafson and Leslie Jean Gustafson (defendants)

(1995 Q.B. No. 72)

Indexed As: Stewart v. Gustafson

Saskatchewan Court of Queen's Bench

Judicial Centre of Weyburn

Klebuc, J.

September 15, 1998.

Summary:

The Gustafsons purchased property which had been used by the Stewarts to store farm machinery, equipment, etc. The Stewarts did not remove their personal property by the dates specified. The Stewarts subsequently sued the Gustafsons claiming that they wrongfully detained and converted their personal property. The Gustafsons pleaded that the Stewarts abandoned the chattels and that in any event they suffered no loss because the chattels were worthless.

The Saskatchewan Court of Queen's Bench divided the chattels into five groups. The court held that no liability attached to the Gustafsons with respect to four of the five groups of chattels. However, the court found that the Gustafsons were not entitled to keep one of the groups of chattels (the fourth group) following the date set for their removal. The Stewarts were awarded $300 damages for the sale of an outboard engine and the Gustafsons were ordered to return the remaining chattels in the fourth group to the Stewarts.

Estoppel - Topic 1156

Estoppel in pais (by conduct) - Represen­ta­tion - By conduct - Silence or standing by - General - [See first, second and third Personal Property - Topic 2103 and first Personal Property - Topic 2185 ].

Personal Property - Topic 2103

Abandonment - What constitutes - The Gustafsons purchased property which had been used by the Stewarts to store farm machinery, equipment, etc. - The Stewarts did not remove their personal property by the dates specified - The Stewarts subsequently claimed that the Gustafsons wrongfully detained and converted their personal property - The Gustafsons pleaded abandonment - The Saskatchewan Court of Queen's Bench divided the chat­tels into five groups - With respect to the first group (scrapped motor vehicles and mis­cellaneous items), the court held that the Stewarts had intentionally relinquished any ownership in such chattels as of the dates specified for their removal - Thus, follow­ing their abandonment, the Gustaf­sons could deal with the chattels in any manner they wished, including assuming ownership of them - Mr. Stewart's conduct also induced the Gustafsons to believe that the Stewarts had abandoned their interest and the defence of estoppel applied - See para­graph 37.

Personal Property - Topic 2103

Abandonment - What constitutes - The Gustafsons purchased property which had been used by the Stewarts to store farm machinery, equipment, etc. - The Stewarts did not remove their personal property by the dates specified - The Stewarts subsequently claimed that the Gustafsons wrongfully detained and converted their personal property - The Gustafsons pleaded abandonment - The Saskatchewan Court of Queen's Bench divided the chat­tels into five groups - The court held that no liabil­ity attached to the Gustafsons upon dis­posal of the second group of chattels (dil­apidated buildings and partially rotted lumber) - An intention to abandon could be inferred from the very nature of the chattels - The Stewarts were also estopped from asserting a claim for dam­ages - Fur­ther, the chattels constituted a nuisance and a trespass and the Gustafsons were entitled to exercise a self-help rem­edy and did so in a reasonable manner - See paragraph 38.

Personal Property - Topic 2103

Abandonment - What constitutes - The Gustafsons purchased property which had been used by the Stewarts to store farm machinery, equipment, etc. - The Stewarts did not remove their personal property by the dates specified - The Stewarts subsequently claimed that the Gustafsons wrongfully detained and converted their personal property - The Gustafsons pleaded abandonment - The Saskatchewan Court of Queen's Bench divided the chat­tels into five groups - With respect to the third group (old farm machinery in a state of disrepair), the court held that the Stew­arts had no intention of relinquishing their proprietary interest and the principle of abandonment did not apply - However, Mr. Stewart's conduct induced Mr. Gustaf­son reasonably to believe that he had aban­doned the third group and the Gustaf­sons could raise the defence of estoppel - See paragraph 39.

Personal Property - Topic 2103

Abandonment - What constitutes - The Gustafsons purchased property which had been used by the Stewarts to store farm machinery, equipment, etc. - The Stewarts did not remove their personal property by the dates specified - The Stewarts subsequently claimed that the Gustafsons wrongfully detained and converted their personal property - The Gustafsons pleaded abandonment - The Saskatchewan Court of Queen's Bench divided the chat­tels into five groups - With respect to the fourth group (tools, spare parts and equip­ment), the court found that the Gustafsons were not entitled to keep the chattels fol­lowing the date set for their removal - They knew that Mr. Stewart wanted them, that they were of substantial value and that in due course Mr. Stewart would have removed them - The chattels did not result in a nuisance or trespass and Mr. Stewart's conduct did not support a defence of estoppel - See paragraphs 40 to 44.

Personal Property - Topic 2123

Abandonment - Elements of - Intention - The Saskatchewan Court of Queen's Bench reviewed the principle of abandonment - The court stated that "[t]he authorities reviewed suggest that the following factors in the appropriate factual context support an inference of intention to abandon: (1) passage of time; (2) nature of the transac­tion; and (3) the owner's conduct. I am of the view the nature and value of the prop­erty also may be an indicator of intent" - See paragraphs 10 to 17.

Personal Property - Topic 2181

Abandonment - Landowner's remedies (incl. where abandonment not established) - General - The Saskatchewan Court of Queen's Bench stated that "[p]roprietors who become involuntary custodians of another person's chattel are not necessarily without a remedy or defence where the facts do not support the defence of aban­donment, particularly if the chattel impairs their use or enjoyment of their premises. Often they will be able to successfully rely on one or more of the following: the def­ences of (1) estoppel, (2) necessity, or (3) abatement of a nuisance; (4) counterclaims for damages in trespass or nuisance; (5) self-help in order to end or abate a tres­pass or nuisance; and (6) the right of distress damage feasant" - See paragraph 22.

Personal Property - Topic 2185

Abandonment - Landowner's remedies (incl. where abandonment not established) - Defence of estoppel - The Saskatchewan Court of Queen's Bench discussed rem­edies available to proprietors who become involuntary custodians of another person's chattel - The court stated that "[w]here the facts do not support a finding that the chattel in question was abandoned, they may be sufficient to found the defence of estoppel if the plaintiff by words or actions reasonably led the defendant to adopt a course of action to his or her detriment ... Failure by the owner to remove his or her chattels in circumstances where the propri­etor of the premises in which the chattels are located has expressed an intention to treat the chattels as abandoned will often be sufficient to give rise to a valid defence of estoppel to an action for conversion" - See paragraphs 23 to 24.

Personal Property - Topic 2185

Abandonment - Landowner's remedies (incl. where abandonment not established) - Defence of estoppel - [See first, second and third Personal Property - Topic 2103 ].

Personal Property - Topic 2186

Abandonment - Landowner's remedies (incl. where abandonment not established) - Claim for trespass - The Saskatchewan Court of Queen's Bench stated that "[w]here a chattel is left on the premises of another, a conflict may arise between a proprietor's right to exercise dominion over her property and the ownership rights of the chattel owner. An action for conver­sion by the chattel owner may be countered with a claim for a continuing trespass or initial trespass by the proprietor ... While the right to counterclaim for trespass upon land may constitute an effec­tive defence or set-off to an action for conversion, the right may in many circum­stances be of little practical nature because the cost of prosecuting a claim in trespass may materially exceed the value of the chattel involved. In addition, the time involved in prosecuting the same may be unacceptable where the proprietor requires the land or premise occupied by the tres­passing chat­tel" - See paragraphs 26 to 27.

Personal Property - Topic 2186

Abandonment - Landowner's remedies (incl. where abandonment not established) - Claim for trespass - [See second Per­sonal Property - Topic 2103 ].

Personal Property - Topic 2187

Abandonment - Landowner's remedies (incl. where abandonment not established) - Self-help remedies - The Saskatchewan Court of Queen's Bench discussed self-help remedies available to a proprietor for removal of a chattel left on his property without permission - The court stated that "the right to self-help extends beyond the mere removal of a chattel from a proprie­tor's premises in circumstances where a cost-benefit analysis demonstrates that the cost of preserving or removing a chattel, as the case may be, materially exceeds its market value or reasonably imputed value to its owner ... This limited remedy does not entitle a proprietor to appropriate the chattel as her own or to destroy a chattel of significant value. The burden of estab­lishing the requisite cost-benefit rests with the proponent thereof. Thus, such remedy is not without risk" - See paragraphs 28 to 31.

Personal Property - Topic 2188

Abandonment - Landowner's remedies (incl. where abandonment not established) - Distress damage feasant - The Saskatchewan Court of Queen's Bench discussed remedies available to a pro­prietor for removal of a chattel left on his prop­erty without permission - The court stated that where the offending chattel has caused actual damage to the premises on which it is located, the proprietor has the right to distrain the same on account of such dam­ages ("distress damage feasant") - See paragraph 32.

Personal Property - Topic 2189

Abandonment - Landowner's remedies (incl. where abandonment not established) - Abatement of nuisance - The Saskatchewan Court of Queen's Bench stated that "[w]here chattels left on the land of another interfere with the proprie­tor's enjoyment thereof, they constitute a private nuisance which the proprietor may abate where the requisite four conditions exist ... first, the abatement must be peace­fully performed; second, the circum­stances must be such that a mandatory injunction would be available; third, the abatement must cause as little damage as possible to the wrongdoer and third parties; and fourth, there may be a notice requirement" - See paragraph 33.

Personal Property - Topic 2189

Abandonment - Landowner's remedies (incl. where abandonment not established) - Abatement of nuisance - [See second Personal Property - Topic 2103 ].

Torts - Topic 1005

Nuisance - Nuisance defined - [See se­cond Personal Property - Topic 2103 ].

Torts - Topic 1626

Nuisance - Abatement - Exercise of right of abatement - [See first Personal Prop­erty - Topic 2189 ].

Torts - Topic 3002

Trespass - Trespass to land - What con­sti­tutes - [See second Personal Property - Topic 2103 ].

Torts - Topic 3093

Trespass - Trespass to goods - Conver­sion - What constitutes conversion - [See fourth Personal Property - Topic 2103 ].

Torts - Topic 3093

Trespass - Trespass to goods - Conver­sion - What constitutes conversion - The Gust­afsons purchased property which had been used by the Stewarts to store farm machin­ery, equipment, etc. - The Stewarts did not remove their personal property by the dates specified - The Stewarts subsequently claimed that the Gustafsons wrongfully detained and converted their personal property - The Saskatchewan Court of Queen's Bench divided the chat­tels into five groups - The court dismissed any claim for damages with respect to the fifth group (chattels stored on the property, but whose existence or whereabouts were unknown to the Gustafsons) - The Gustaf­sons were never aware that they had de facto control over the fifth group of chat­tels - They were at best unwilling custod­ians and they did not breach the resulting limited duty of care - See paragraph 45.

Torts - Topic 3105

Trespass - Trespass to goods - Conver­sion - Defences - [See first Personal Property - Topic 2185 and first Personal Property - Topic 2186 ].

Cases Noticed:

Canada (Attorney General) v. Brock (1991), 59 B.C.L.R.(2d) 261 (S.C.), refd to. [para. 12].

Simpson v. Gowers et al. (1981), 121 D.L.R.(3d) 709 (Ont. C.A.), refd to. [para. 16].

Hoyt et al. v. Grand Lake Development Corp. et al. (1975), 13 N.B.R.(2d) 544; 13 A.P.R. 544 (Q.B.), affd. (1976), 13 N.B.R.(2d) 537; 13 A.P.R. 537 (C.A.), affd. [1977] 2 S.C.R. 907; 16 N.R. 65; 18 N.B.R.(2d) 75; 26 A.P.R. 75, refd to. [para. 18].

Dixon v. Spencer and Monk (1951), 4 W.W.R.(N.S.) 222 (B.C.S.C.), refd to. [para. 18].

Army and Navy Department Store Ltd. v. Commissioner of Social Services Tax (B.C.) (1965), 54 D.L.R.(2d) 245 (B.C.C.A.), refd to. [para. 19].

Eaton (T.) Co. v. British Columbia et al. (1994), 52 B.C.A.C. 317; 86 W.A.C. 317 (C.A.), refd to. [para. 19].

McCutcheon v. Lightfoot, [1930] S.C.R. 108, affing [1929] 1 W.W.R. 694 (Man. C.A.), reving. [1928] 2 W.W.R. 240 (Man. K.B.), consd. [para. 20].

Nash v. Chan (1989), 93 A.R. 228 (Q.B.), refd to. [para. 20].

Jago v. Virden Credit Union Ltd. (1990), 69 Man.R.(2d) 50 (Q.B.), affd. (1993), 83 Man.R.(2d) 280; 36 W.A.C. 280 (C.A.), refd to. [para. 23].

Maple Leaf Lumber Co. and 384238 Ontario Ltd. v. Canada (1983), 52 N.R. 206; 8 D.L.R.(4th) 676 (F.C.A.), refd to. [para. 25].

Haynes v. Newfoundland Telephone Co. (1985), 56 Nfld. & P.E.I.R. 162; 168 A.P.R. 162 (Nfld. Dist. Ct.), refd to. [para. 26].

Gaudet v. Laviolette, [1959] Que. S.C. 398, consd. [para. 28].

Cameron v. Morang and Morang (1978), 32 N.B.R.(2d) 22; 78 A.P.R. 22 (Co. Ct.), refd to. [para. 29].

R. v. Howson (1966), 55 D.L.R.(2d) 582 (Ont. C.A.), consd. [para. 29].

Controlled Parking Systems Ltd. v. Sedge­wick, [1980] 4 W.W.R. 425 (Sask. Dist. Ct.), refd to. [para. 32].

Forhan & Read Estates Ltd. and Vancouver Auto Towing Service v. Hallet (1959), 19 D.L.R.(2d) 756 (B.C. Co. Ct.), refd to. [para. 32].

Stuart v. Fuller, [1922] 3 W.W.R. 556 (Sask. C.A.), refd to. [para. 42].

Authors and Works Noticed:

Aitken, Lee, The Abandonment and Recaption of Chattels (1994), 68 A.L.J. 263, p. 272 [para. 11].

Black's Law Dictionary (5th Ed. 1979), generally [para. 14].

Brown, R.A., The Law of Personal Prop­erty (2nd Ed. 1955), generally [para. 13].

C.E.D. - see Canadian Encyclopedic Digest.

Canadian Encyclopedic Digest (West) (3rd Ed. 1991), vol. 11, Title 57, p. 74, §36; vol. 27, Title 111, p. 111-68, §123 [para. 23].

Clerk & Lindsell on Torts (15th Ed. 1982), p. 309 [para. 32].

Da Costa, Mendes, and Balfour, Richard J., Property Law, Cases, Texts and Materials (1982), c. 3, p. 114 [para. 16].

Fleming, John, The Law of Torts (7th Ed. 1987), pp. 39, 40 [para. 26].

Hudson, A.H., Is Divesting Abandonment Possible at Common Law (1984), 100 L.Q.R. 110, generally [para. 11].

Rainaldi, Linda A., Remedies in Tort (1987), vol. 3, c. 23, §17 [para. 26].

Spencer-Bower, George, and Turner, A.K., The Law Relating to Estoppel by Repre­sentation (3rd Ed. 1977), generally [para. 23].

Ziff, Bruce H., Principles of Property Law (2nd Ed. 1996), pp. 127 [para. 15]; 280 [para. 45].

Counsel:

J.D. Camplin, for the plaintiffs;

T.G. Graf, for the defendants.

This action was heard before Klebuc, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Weyburn, who delivered the following judgment on September 15, 1998.