Date Issued: December 10, 2021

File: SC-2021-001670

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Hjorth v. Desroches, 2021 BCCRT 1296

Between:

THOMAS HJORTH and LAUREN AUSTIN

Applicants

And:

JORDAN DESROCHES also known as JULIET DELTA and
COLE DESROCHES

Respondents

And:

THOMAS HJORTH and LAUREN AUSTIN

Respondents by counterclaim

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about alleged unreturned personal property. The applicants and respondent by counterclaim, Thomas Hjorth and Lauren Austin, say they were storing some of their household items at the home of the respondents, Jordan Desroches also known as Juliet Delta and Cole Desroches. The applicants say the Desrocheses failed to return all the stored items and admitted to selling items. The applicants claim $1,026.53, which is made up of $684.79 for a mixer, $273.83 for industrial shelving, and $53.92 for a portion of a patio set.

2.      The Desrocheses deny improperly retaining or selling any of the applicants’ property. The Desrocheses say the applicants gifted them the mixer and the shelving. It is undisputed that Mrs. Desroches later sold the mixer. Mrs. Desroches also says the applicants falsely accused her of theft, prompting the police to arrest her and search her home in August 2020. Mrs. Desroches says the police confiscated the patio set and she has not seen it since.

3.      Mrs. Desroches is the applicant in the counterclaim. She says due to the applicants’ alleged false accusations, the resulting police attendance in her home, and her arrest, she has suffered mental anguish, distress, defamation of character, and injury. Mrs. Desroches counterclaims for $5,000 in damages.

4.      The applicants say Mrs. Desroches’ counterclaim is in substance a claim for damages arising from alleged defamation and malicious prosecution, which are matters outside the jurisdiction of the Civil Resolution Tribunal (CRT).

5.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

6.      These are the CRT’s formal written reasons. 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.

7.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both parties to this dispute call into question the credibility, or truthfulness, of the other. 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. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 28, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

8.      Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues.

9.      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.

10.   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.

ISSUES

11.   The issues in this dispute are:

a.    Did the applicants gift any of the claimed property to the Desrocheses?

b.    Did the Desrocheses unlawfully retain or dispose of the applicants’ property, and if so, what is the appropriate remedy?

c.    Are Mrs. Desroches’ counterclaims within the CRT’s jurisdiction, and if so, is Mrs. Desroches entitled to damages for mental distress?

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities (meaning “more likely than not”). Mrs. Desroches must prove her counterclaim on the same standard. I also discuss below how the law of gifts impacts the burden of proof.

13.   I note that the Desrocheses did not submit any evidence in this dispute, despite having the opportunity to do so. I have reviewed all the parties’ evidence and submissions, but I refer only to what I find is necessary to explain my decision.

14.   Mrs. Desroches says she and Ms. Austin had been friends for over a decade, which the other parties do not dispute. The evidence shows that the applicants were married, but they separated in about March 2020, when Ms. Austin moved into her own apartment. It is undisputed that the Desrocheses agreed to store certain items for Ms. Austin after she moved, including a patio set.

15.   In addition to the patio set, the applicants say the Desrocheses were storing a shelving unit for Ms. Austin. The applicants also say they lent the Desrocheses a KitchenAid Pro Series Stand Mixer 550 HD (mixer) in about December 2019, as they had 2 mixers at that time. The Desrocheses say the applicants gave the mixer and shelving unit to them as gifts. In any event, the parties agree that while the mixer, shelving, and patio set were in the Desrocheses’ possession, the Desrocheses were at liberty to freely use them.

16.   The applicants say that in approximately June or July 2020, Ms. Austin asked the Desrocheses to return all the applicants’ personal property, including the mixer, shelves, and patio set, among other items the Desrocheses were storing. The parties’ text messages in evidence show that on July 18, 2020, Ms. Austin advised Mrs. Desroches that if she did not return her property, she would report the issue to the police.

17.   The applicants say that the Desrocheses failed to return their property, so on August 7, 2020, Ms. Austin reported the situation to the police. From the parties’ submissions, I find that the police executed a search warrant for the Desrocheses’ home on about August 13, 2020. Neither party provided a copy of the police report. The applicants say some of their property was returned as a result of the police intervention, but not the items at issue in this dispute.

18.   I turn first to consider the Desrocheses’ claim that the mixer and shelving were gifted to them.

Did the applicants gift any of the claim property to the Desrocheses?

19.   Under the law of gifts, the person who received the alleged gift has the burden to prove it was a gift. I find the Desrocheses must prove the applicants intended to gift the mixer and shelving to them, that they accepted those items, and there was a sufficient act of delivery (see Pecore v. Pecore, 2017 SCC 17 and Lundy v. Lundy, 2010 BCSC 1004). The evidence should also show that the intention of gift was inconsistent with any other intention or purpose (Lundy at paragraph 10). Further, once someone has made a gift to another person, that gift cannot be revoked (see Bergen v. Bergen, 2013 BCCA 492).

20.   Here, it is undisputed that the applicants transferred the mixer and shelving to the Desrocheses’ possession and that the Desrocheses accepted them. The issue is whether the applicants intended to gift the mixer and shelving to the Desrocheses, or, whether they intended only to lend the mixer and store the shelving temporarily at the Desrocheses’ home.

21.   Starting with the mixer, the Desrocheses say the applicants gifted it to Mrs. Desroches because she bakes often for her children. They do not further explain the circumstances of the gift or provide any details about how it came about.

22.   In the July 2020 text message exchange between Ms. Austin and Mrs. Desroches, Mrs. Desroches said she did not have to return the mixer because it was a gift from Mr. Hjorth. In response, Ms. Austin says Mrs. Desroches has only been borrowing the mixer. The applicants also provided a handwritten letter from Mr. Hjorth expressly disputing that he gifted the mixer to the Desrocheses. I note that Mrs. Desroches also refers in the text messages to Ms. Austin having her own mixer.

23.   On the evidence before me, I find it is equally likely that the applicants offered to lend one of their mixers to Mrs. Desroches, as it is that the applicants gifted it to Mrs. Desroches. I find there is essentially an evidentiary tie as to whether the mixer was a gift or a loan. Given the Desrocheses bear the burden of proof, I find they have not met their burden to prove the applicants gifted them the mixer. More about the mixer below.

24.   I come to a different conclusion about the shelving. My reasons follow.

25.   The text messages in evidence show that Mrs. Desroches asked Ms. Austin about the shelving during Ms. Austin’s move. I find that Mrs. Desroches was helping Ms. Austin sell some of her personal belongings and asked how much she was selling the shelves for because she was interested in potentially buying one. Ms. Austin replied that she was planning to leave the shelves, presumably for Mr. Hjorth, but that she could sell them if Mrs. Desroches was interested.

26.   As noted, Mrs. Desroches says Ms. Austin ultimately gave her the shelving unit after she helped with Ms. Austin’s move. The applicants did not specifically respond to Mrs. Desroches’ submission about the shelving being a gift and did not explain what happened after Mrs. Desroches offered to buy the shelving from Ms. Austin. Further, while the text messages referred to several specific items that Mrs. Desroches agreed to store for Ms. Austin, the shelving unit was not mentioned in that context.

27.   Given Mrs. Desroches’ interest in purchasing the shelving, on balance, I find Ms. Austin likely intended to gift the shelving unit to the Desrocheses when she transferred it to their possession. I find the applicants cannot revoke the gift, so they are not entitled to any compensation for the shelving unit.

Did the Desrocheses unlawfully retain or dispose of the applicants’ property?

28.   I first consider the patio set. The applicants provided a screenshot of the set’s purchase from Amazon.ca on July 24, 2019. The screenshot shows a 3-piece set consisting of 2 knit stools and a round table. As noted, the Desrocheses do not dispute that they agreed to store the applicants’ patio set, but they say the police retrieved it when they executed the search warrant.

29.   The applicants say they received only partial return of the patio set from the police. They claim ¼ of the set is missing. However, as noted, the set was only 3 pieces. The applicants do not describe what part of the set is missing. I find I have insufficient evidence to conclude the Desrocheses retained or disposed of any part of the patio set. On balance, I find the applicants likely recovered the entire patio set from the police. Therefore, I dismiss the applicants’ claim as it relates to the patio set.

30.   I turn to the mixer. Given I have found the applicants did not gift the mixer to the Desrocheses, I must now consider whether the Desrocheses unlawfully disposed of it. As noted, the parties agree that Mrs. Desroches ultimately sold the mixer.

31.   I considered whether the applicants abandoned the mixer. However, the applicants submit that Mrs. Desroches told the police she sold the mixer in January 2020. The Desrocheses do not dispute that allegation or provide any contrary information about the mixer’s sale. So, I find Mrs. Desroches likely sold the mixer in January 2020, which was only about one month after the applicants lent it to her. Under the circumstances, I find the applicants did not abandon the mixer.

32.   I find the applicable law is the law of conversion. Conversion is when a person wrongfully handles, disposes of, or destroys another person’s personal property in a way that is inconsistent with the owner’s rights (see Li v. Li, 2017 BCSC 1312 at paragraph 213). I find Mrs. Desroches wrongfully sold the applicants’ mixer, which had been loaned to her only a month earlier.

33.   The usual remedy for conversion is either a return of the property, or a monetary order of the property’s market value. Given the Desrocheses are undisputedly no longer in possession of the mixer, I find that monetary damages are appropriate.

34.   The applicants say they based the amount of their $684.79 claim for the mixer on the average prices they found for 2 new stand mixers and 2 used stand mixers of the same brand and series. However, they did not provide copies of the advertisements for these new and used mixers. There is also no evidence before me about the mixer’s age or its condition. The applicants provided a photograph of the mixer taken by Mr. Hjorth’s mother before she gave it to the applicants in early November 2019. From the photograph, I find the mixer likely was not new when the applicants received it, as it was not in a box and appeared to be stored in a relative’s basement. The Desrocheses also did not provide any evidence of how much Mrs. Desroches ultimately sold the mixer for.

35.   In the absence of evidence, on a judgment basis I find that nominal damages of $100 are appropriate. I find the Desrocheses must pay the applicants $100 for the mixer.

36.   I turn to Mrs. Desroches’ counterclaim.

Does the CRT have jurisdiction to decide the counterclaim?

37.   As noted, Mrs. Desroches claims damages for mental distress and defamation resulting from the applicants’ alleged false claims to the police that Mrs. Desroches stole their belongings. Mrs. Desroches says she and her family have attended “countless hours of therapy”, which they plan to continue due to the trauma they experienced. The applicants say these issues are outside the CRT’s jurisdiction to decide.

38.   At the outset, I note that Mrs. Desroches has not shown she has standing (a legal right) to bring claims on behalf of her other family members. So, I decline to consider any claims as they relate to alleged trauma experienced by Mr. Desroches or their children.

39.   Next, section 119(a) of the CRTA specifically excludes claims for the 2 forms of defamation, libel (written) and slander (spoken), from its small claims jurisdiction. Therefore, I make no findings about whether the applicants defamed Mrs. Desroches.

40.   This leaves Mrs. Desroches’ claim for mental distress damages. Contrary to the applicants’ submission, I find this is not in essence a claim for malicious prosecution, which is also excluded from the CRT’s small claims jurisdiction under CRTA section 119(a). Claims for malicious prosecution are generally brought against a Crown entity in relation to a prosecution that has proceeded in a court of law, which is not the case here. Rather, I find Mrs. Desroches is likely claiming either negligence or the tort of intentional infliction of mental distress.

41.   However, I find it is unnecessary to determine the merits of Mrs. Desroches’ counterclaim because I find she has failed to prove damages. The BC Court of Appeal has held there must be some evidentiary basis for awarding damages for mental distress (Lau v. Royal Bank of Canada, 2017 BCCA 253). As discussed in the non-binding but persuasive decision in Eggberry v. Horn et al, 2018 BCCRT 224, to be successful in a claim for mental distress there must be medical evidence supporting the mental distress. I agree with the reasoning in Eggberry and apply it here.

42.   As noted, the Desrocheses did not submit any evidence in this dispute. This is despite Mrs. Desroches’ submission that she has receipts for counselling, and, therefore, presumably records would also be available. So, even if Mrs. Desroches was able to prove the applicants were negligent or that they attempted to intentionally inflict mental distress, I find Mrs. Desroches would not be entitled to damages because she did not submit any medical evidence. On that basis, I dismiss Mrs. Desroches’ counterclaim.

INTEREST AND CRT FEES

43.   The Court Order Interest Act applies to the CRT. The applicants are entitled to pre-judgement interest on the $100 value for the mixer from July 18, 2020, the date the applicants requested the mixer’s return, to the date of this decision. This equals $0.63.

44.   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 find the applicants were partly successful, so they are entitled to reimbursement of $62.50, for half of their paid CRT fees. Mrs. Desroches was unsuccessful in her counterclaim, and so I dismiss her claim for CRT fees. None of the parties claimed any dispute-related expenses.

ORDERS

45.   Within 30 days of the date of this decision, I order the Desrocheses to pay the applicants a total of $163.13, broken down as follows:

a.    $100 in damages for the mixer,

b.    $0.63 in pre-judgment interest under the Court Order Interest Act, and

c.    $62.50 in CRT fees.

46.   The applicants are also entitled to post-judgment interest, as applicable.

47.   I dismiss the applicants’ remaining claims, and Mrs. Desroches’ counterclaim.

48.   Under section 48 of the CRTA, the CRT will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the CRT’s final decision.

49.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. A CRT order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.