Date Issued: January 25, 2023

File: SC-2022-003609

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Cleverdon-Alexander v. Limbert, 2023 BCCRT 65

Between:

JAMES BRIAN CLEVERDON-ALEXANDER

Applicant

And:

STEVEN LIMBERT

Respondent

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

 

INTRODUCTION

1.      This dispute is about dog accessories.

2.      The applicant, James Brian Cleverdon-Alexander, says he provided the respondent, Steven Limbert, with his dog accessories while he was out of the country and Mr. Limbert was caring for his dog, Tao. Mr. Cleverdon-Alexander says he returned from abroad and got Tao back, but Mr. Limbert refused to give him the accessories even after Mr. Cleverdon-Alexander offered him $150 for them. He claims $600 in damages for the dog accessories, without an explanation for the $450 increase.

3.      Mr. Limbert says he offered to adopt Tao or look after her for a short time when he found out Mr. Cleverdon-Alexander was leaving the country. Mr. Cleverdon-Alexander declined the offer to adopt Tao, so Mr. Limbert says he agreed to keep Tao for 3 weeks while Mr. Cleverdon-Alexander was abroad. It is undisputed Mr. Cleverdon-Alexander ended up being away for several months. Mr. Limbert says after about 6 weeks, he told Mr. Cleverdon-Alexander if he was unwilling to allow Mr. Limbert to adopt Tao, he would have to compensate him for boarding her. Mr. Limbert says Mr. Cleverdon-Alexander did not compensate him and Tao remained in his care, so he considered the accessories to have become his property. He also says the accessories were at the end of their useful life or were inappropriate for health and ethical reasons, so he discarded or lost most of them.

4.      The parties are each self-represented.

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.      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 of this dispute call into question the credibility, or truthfulness, of the other. 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 Yas v. Pope, 2018 BCSC 282, 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.

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.

9.      In his submissions, Mr. Cleverdon-Alexander refers to other items he says Mr. Limbert did not return that do not relate to his claim for the dog accessories. As these items were not set out in the Dispute Notice which frames the claim, I find they are not properly before me and so I have not addressed them in my decision below.

ISSUE

10.   The issue in this dispute is whether Mr. Cleverdon-Alexander is entitled to damages for the dog accessories, and if so, how much he is entitled to.

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, the applicant must prove his claims on a balance of probabilities. I have read Mr. Cleverdon-Alexander’s submissions and evidence and Mr. Limbert’s Dispute Response but refer only to the evidence and argument that I find relevant to provide context for my decision. Mr. Limbert did not make submissions or provide evidence, despite having the opportunity to do so.

12.   Mr. Cleverdon-Alexander alleges Mr. Limbert withheld his dog accessories from him. Although he did not articulate the legal basis for his claim, I find it is grounded in the tort of conversion. Conversion involves wrongfully holding on to another person’s property and claiming title or ownership of that property. To prove conversion, Mr. Cleverdon-Alexander must show Mr. Limbert committed a wrongful act involving handling, disposing, or destroying Mr. Cleverdon-Alexander’s personal property, and that the act was intended to or actually interfered with his right or title to the property (see Li v. Li, 2017 BCSC 1312 at paragraph 214). For an act to be “wrongful” it must be unjust, unfair or harmful (see Charbonneau v. Mundie’s Towing, 2008 BCPC 239 at paragraph 13).

13.   Mr. Limbert does not dispute Mr. Cleverdon-Alexander provided him with the dog accessories when he agreed to take care of Tao. Instead, he says they became his property when Mr. Cleverdon-Alexander left Tao with him “for over 100 days without payment or agreement.” I infer Mr. Limbert’s position is that Mr. Cleverdon-Alexander abandoned the dog accessories, so it was not wrong of him to throw them away or otherwise dispose of them. As the party seeking to rely on the abandonment principle, Mr. Limbert bears the burden of proof (see Jackson v. Honey, 2007 BCSC 1869 at paragraph 30).

14.   The factors to consider in deciding whether personal property has been abandoned include the passage of time, the nature of the transaction, the owner’s conduct and the nature and value of the property (see Jackson at paragraph 30).

15.   It is unclear on the limited evidence before me when Mr. Limbert discarded any of the dog accessories. Given his position that some of them were no longer useful or were inappropriate for ethical or safety reasons, he may have discarded them as soon as Mr. Cleverdon-Alexander left Tao with him. Or, he may have disposed of them in the months that followed. In the circumstances, I find it unproven that a reasonable period of time passed before Mr. Limbert deemed the dog accessories abandoned and discarded them.

16.   I also find it unreasonable for Mr. Limbert to have discarded any of the accessories since Mr. Cleverdon-Alexander provided them to him when he left Tao in Mr. Limbert’s care. I find Mr. Cleverdon-Alexander intended the accessories to be used in caring for Tao.

17.   Mr. Limbert asserts Mr. Cleverdon-Alexander indicated he no longer wanted Tao (and by extension the dog accessories) several months after she came into his care. Mr. Limbert says Mr. Cleverdon-Alexander sent him a YouTube video saying he had left the country and put his dog up for adoption. He also says Mr. Cleverdon-Alexander sent him messages that “No husky would live [in Mexico]” and that he did not know if he would be returning to the country. However, none of these messages or the video are in evidence, so I place no weight on Mr. Limbert’s statements about them.

18.   Mr. Limbert acknowledges Mr. Cleverdon-Alexander tried to arrange for a friend to come and collect Tao from him. Mr. Limbert says Mr. Cleverdon-Alexander confirmed he was willing to compensate Mr. Limbert for his expenses, time and energy, but that he told Mr. Cleverdon-Alexander he intended to seek a legal opinion about the situation. For his part, Mr. Cleverdon-Alexander says Mr. Limbert would not send Tao to him or allow any of his friends or family to pick her up.

19.   In these circumstances, I find I am left with an evidentiary tie about whether Mr. Cleverdon-Alexander’s conduct indicated he intended to abandon Tao and the dog accessories, so I find Mr. Limbert has not met the burden of proof.

20.   Finally, despite claiming some of the dog accessories were at the end of their useful life, Mr. Limbert did not provide evidence of this, such as photographs. Weighing all of these factors, I find Mr. Limbert has not established that Mr. Cleverdon-Alexander abandoned his dog accessories. So, I find there is no basis in law for Mr. Limbert to claim the dog accessories as his personal property. I find Mr. Limbert wrongfully withheld and disposed of Mr. Cleverdon-Alexander’s dog accessories and interfered with his right to that personal property when he failed to return them on request.

21.   I also considered whether the law of bailment applies to this dispute. A bailment is a temporary transfer of personal property for safekeeping to another person, known as the “bailee”. A bailee may be liable for loss or damage to the property in their safekeeping if they voluntarily accept responsibility for the property (see Lichti v. Landmark Transport Inc. et al, 2006 BCSC 344). The burden of proof is on the bailee to show they exercised reasonable care with respect to the personal property in all the circumstances (see Harris v. Maltman and KBM Autoworks, 2017 BCPC 273).

22.   It is undisputed Mr. Limbert voluntarily accepted responsibility for Mr. Cleverdon-Alexander’s dog accessories while Tao was in his care, so I find he was a bailee. In the Dispute Response, he says he had the dog accessories in his possession and “discarded/lost some of what had not been in use.” Since Mr. Limbert admits causing the damages that occurred at the time of the bailment, I find he was negligent in discharging the duty of care he, as a bailee, owed Mr. Cleverdon-Alexander not to lose or get rid of his personal property. I find this is the case even if in his opinion, the accessories were at the end of their useful life or were unethical or unsafe to use. I find it was unreasonable for him to decide to discard the accessories unilaterally, without asking Mr. Cleverdon-Alexander if he wanted them back. So, I find Mr. Limbert is also liable in bailment for the dog accessories.

23.   I turn to Mr. Cleverdon-Alexander’s $600 damages claim. Mr. Limbert does not dispute Mr. Cleverdon-Alexander’s list of dog accessories in evidence. However, Mr. Cleverdon-Alexander did not provide supporting evidence of their value or condition. He did not provide receipts for the cost of replacing them. In the absence of such evidence and on a judgment basis, I find Mr. Limbert must pay Mr. Cleverdon-Alexander $100 for the dog accessories.

24.   Since Mr. Cleverdon-Alexander expressly says he does not claim interest, I make no order for interest.

25.   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. As Mr. Cleverdon-Alexander was partially successful, I find he is entitled to reimbursement of half of the $125 he paid in CRT fees, which is $62.50. Mr. Cleverdon-Alexander did not claim dispute-related expenses.

ORDERS

26.   Within 30 days of the date of this order, I order Mr. Limbert to pay Mr. Cleverdon-Alexander a total of $162.50, broken down as follows:

a.    $100 for damages for dog accessories, and

b.    $62.50 for CRT fees.

27.   Mr. Cleverdon-Alexander is entitled to post-judgment interest under the Court Order Interest Act as applicable.

28.   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. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.