Date Issued: April 26, 2021

File: SC-2020-007078

Type: Small Claims

Civil Resolution Tribunal

Indexed as: R.M. as litigation guardian of M.M., minor v. M.K., 2021 BCCRT 429

Between:

R.M. as Litigation Guardian of M.M., minor

Applicant

And:

M.K.

Respondent

INTRODUCTION

1.      This dispute is about who owns several items. The applicant is R.M. as litigation guardian of M.M., minor. M.M.’s father, D.M., died under tragic circumstances. M.M. says that prior to that, D.M. gifted her a $600 rifle, $2,000 Hot Wheels collection, and 3 collectible coins worth $300. She says the respondent, M.K., currently has these items and seeks orders for the M.K. to return them to her. D.M. and M.K. were in a relationship when D.M. died.

2.      M.K. disagrees with M.M.’s claims. She says the rifle is hers and the coins were stolen by an unknown third party. She also says D.M. sold the entire Hot Wheels collection.

3.      R.M. represents M.M. as litigation guardian. M.K. represents herself. While the parties did not request it, I have anonymized the parties’ names to protect the identity of the minor M.M.

4.      For the reasons that follow, I refuse to resolve M.M.’s claim for the Hot Wheels collection and dismiss her remaining claims.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

6.      Some of the evidence in this dispute amounts to a “she said, she said” scenario. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

7.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

The CRT’s Jurisdiction over the Hot Wheels Collection

9.      The CRT has no jurisdiction to hear claims under the Wills, Estates and Succession Act, nor is D.M.’s estate a named party. I find it clear that M.M. alleges D.M. gifted her the rifle and 3 coins while he was still alive. If proven, such property would not be part of D.M.’s estate, so I find the CRT has jurisdiction over these claims.

10.   In contrast to this, M.M. seeks an order for the return of the Hot Wheels collection “promised to [D.M.’s] children upon his death”. I find this claim is for estate property. Given this, I refuse to resolve M.M.’s claim for the Hot Wheels collection under section 10 of the CRTA, for lack of jurisdiction.

ISSUE

11.   The issue in this dispute is whether D.M. gifted M.M. the rifle and 3 collectible coins, and if so, whether M.K. must return the items or otherwise compensate M.M.

EVIDENCE AND ANALYSIS

12.   In a civil claim like this one, the applicant M.M. must prove her claims on a balance of probabilities. While I have reviewed all the evidence and submissions, I only refer to them as necessary to explain and give context to my decision.

13.   As noted above, D.M. is the deceased father of M.M. Prior to his death, D.M. lived with M.K. M.M. used a room at M.K.’s residence when she visited and kept some of her things there. M.M.’s representative, R.M., is a family member.

14.   According to the evidence, D.M. passed away on April 23, 2020. On April 26, 2020, M.M. wrote a list of items she wanted back, which a third party gave to M.K. The rifle and 3 coins were not on the list.

15.   On June 8, 2020, M.K. emailed R.M. to pick up M.M.’s items. On June 11, 2020, another person, T.G., picked up the items for M.M. M.K. submits she returned all of M.M.’s items at that time, but M.M. disagrees. In an August 6, 2020 letter, M.M.’s lawyer asked M.K. to return the rifle, Hot Wheels collection, 3 coins, and a camera. The camera is not at issue in this dispute.

16.   M.M. says D.M. gifted her the rifle and 3 coins while he was alive. If this was the case, M.K. might be obligated to return the coins to M.M. under the law of bailment. A bailment is a temporary transfer of property, where the personal property of one person, a “bailor”, is handed over to another person, a “bailee”.

17.   To prove her claim, M.M. must first show the existence of an inter vivos gift, which means a gift given during the lifetime of the donor. In law, a gift requires 1) an intention to donate, 2) sufficient delivery of the gift, and 3) acceptance of the gift. See Re Foley, 2015 ONCA 382 at paragraph 25 and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union Local 2009 v. Ghag, 2021 BCSC 524 at paragraph 69.

18.   Whether a deceased person had an intention to donate at the time of transferring property may be difficult to determine. In Pecore v. Pecore, 2007 SCC 17, the Supreme Court of Canada noted that where a parent transfers property to minor children, the presumption of advancement creates a rebuttable presumption that the parent intended a gift. As noted above, M.M. is a minor and child of D.M.

19.   Delivery can be completed by 1) transferring the property directly to a donee or a trustee, 2) the donor retaining possession and making a declaration of trust, or 3) a deed or other instrument in writing. See McKendry v. McKendry, 2017 BCCA 48 at paragraph 32, Larochelle v. Soucie Estate, 2019 BCSC 1329 at paragraph 289, and Allen v. Bergen, 1994 CanLII 645 (BCSC). Once a gift is given, the donor cannot retract it. However, if the gift rests merely in a promise or unfulfilled intention, a court will not compel an intending donor to follow through with making the gift: McKendry at paragraph 32.

20.   With the above in mind, I will first consider the rifle. I find from the evidence that D.M. purchased it with the intention of giving it to M.M. in the future. The rifle is a “Savage Arms” brand .223 Remington cartridge rifle with a pink camouflage pattern. B.A., a friend of D.M., says D.M. purchased the rifle in August 2018. In a copy of text messages between himself and D.M., DM texted, “Got a 223 for [M.M.]”, and sent a photo of the rifle at issue. Similarly, M.M.’s aunt, C.M., provided a statement in which she says M.M. advised her in summer 2018 that D.M. had purchased the rifle for her as a gift. Another family member, K.B., provided a statement saying the rifle was for M.M. R.M. questioned some of this evidence, but I find it consistent and weigh it heavily on this issue.

21.   R.M. says she split the cost with D.M. However, as R.M.’s submission is unsupported by evidence, I find it unproven R.M. contributed to the rifle’s purchase.

22.   I find the primary difficulty with M.M.’s claim is that there is no evidence that D.M. delivered the rifle to M.M. It is undisputed that M.M. cannot legally possess the firearm, I infer because of her age or other licensing requirements. Likewise, there is no indication M.M. ever held or otherwise used the rifle. M.K. provided a photo that shows M.M. used a different, plain rifle when shooting. M.M. also failed to include the rifle in the list of items she wished returned. I find this consistent with my conclusion that D.M. never delivered the rifle to her.

23.   Similarly, there is no evidence that D.M. delivered the rifle through a deed or a declaration of trust. While no particular words are required to constitute a trust, it must be clear to “avoid imperfect gifts being given effect as trusts”: Xu v. Hu, 2021 BCCA 2 at paragraph 17. I am not satisfied from the texts or other evidence that D.M. ceased to be, and M.M. became, the beneficial owner. Rather, I find the texts and other evidence show D.M. had an unfulfilled intention to give the rifle at a more appropriate time, likely when it was legal to do so.

24.   I dismiss M.M.’s claim for the rifle because I find D.M. did not complete a gift of it to M.M. when he was alive.

25.   I turn now to the 3 coins at issue. M.M. says D.M. gifted her 3 old coins from his collection in 2018 or 2019, and they were stored in her bedroom at M.K.’s residence.

26.   M.K. says the coins were stolen. In support of this submission, M.K. provided insurance documents showing that D.M. filed a claim for property theft with his insurer. He included a coin collection valued at $600 to 1,000 in a “Schedule of Loss” form. The date of the loss is obscured by a thumb holding the document, but at the bottom the document says it was printed on August 17, 2018.

27.   In the circumstances, I find the insurance documents provide the best explanation for what happened to the coins. I find that M.K. does not have the claimed coins because they were stolen. There is no evidence she is responsible for their theft or that she was entrusted with safekeeping the coins before they were stolen. I dismiss this claim.

28.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule.

29.   M.K. is the successful party. She claimed an unspecified amount for lost wages and time spent on this dispute. CRT rule 9.5(5) says that the CRT will only order compensation for time spent dealing with a dispute in extraordinary circumstances. I do not find there to be anything extraordinary in this dispute. It did not involve issues of unusual complexity or an unusually large amount of evidence. M.K.’s claim is also unsupported by any evidence or a claim for a specific amount. M.K. also did not pay any CRT fees. For all these reasons, I order no reimbursement for the parties.

ORDERS

30.   I refuse to resolve M.M.’s claims for the Hot Wheels collection.

31.   I dismiss M.M.’s remaining claims.