Citation: Dover v. Gov of PEI et ors. Date: 200403312004 PESCTD 25 Docket: GSC-16511

Registry: Charlottetown

PROVINCE OF PRINCE EDWARD ISLANDIN THE SUPREME COURT - TRIAL DIVISION

Between:

Donald Dover and Evelyn Dover

PlaintiffsAnd:

Government of Prince Edward Island and Frank G. Driscoll and William V. Acorn

Defendants

Before: The Honourable Justice David H. Jenkins(Decision following trial)

Appearances:

Gregory B. Collins, for the PlaintiffsRuth M. DeMone, for the Defendants

Dates and place of trial Charlottetown, Prince Edward IslandOctober 27, 28, 29, and 30, 2003

Date and place of decision following trial Charlottetown, Prince Edward IslandMarch 31, 2004

Citation: Dover v. Gov of PEI et ors. Date: 200403312004 PESCTD 25 Docket: GSC-16511

Registry: Charlottetown

PROVINCE OF PRINCE EDWARD ISLANDIN THE SUPREME COURT - TRIAL DIVISION

Between:Donald Dover and Evelyn Dover

Plaintiffs

And:Government of Prince Edward Island

and Frank G. Driscoll and William V. AcornDefendants

Prince Edward Island Supreme Court - Trial Division(Decision following trial)

Before: Jenkins J.Trial Dates: October 27, 28, 29, 30, 2003

Date of Decision: March 31, 2004(20 pages)

BAILMENT:

STATUTES CONSIDERED: Sheriffs Act, R.S.P.E.I. 1988, Cap. S-4.1; Civil Service Act,R.S.P.E.I. 1988, Cap. C-8; Crown Proceedings Act, R.S.P.E.I. 1988, Cap. C-32; Landlordand Tenant Act, R.S.P.E.I. 1988, Cap. L-4;

CASES CONSIDERED: Neil’s Trailer & Equipment Ltd. v. Butler, Maveety & MeldrumLtd., [1977] A.J. No. 545 (Alta. T.D.).

Appearances:

Gregory B. Collins, for the PlaintiffsRuth M. DeMone, for the Defendants

Jenkins J.:

[1] The Plaintiffs claim against the Defendants for damages in the amount ofapproximately $60,000 plus interest. They assert that the Defendants are responsible forthe loss of gym equipment that was temporarily contained in a tractor trailer thatdisappeared.

[2] The Plaintiffs are a landlord of commercial premises at 177 St. Peters Road inCharlottetown. Their building was leased to the operator of a business called Amigo’sGym. As security for the rent, the Plaintiffs had a lease and held a chattel mortgage overthe tenant’s personal property. During the May holiday weekend in 1996, the tenantclosed its business and attempted a clandestine overnight removal of the gym equipment.The Plaintiffs intervened by which time most of the equipment was loaded into trucksand ready to go. The Plaintiff, Donald Dover, involved the police, who in turn called theDeputy Sheriff, William Acorn, out of bed to the scene. The Plaintiffs and the tenantboth called in their lawyers. The scene being chaotic, the City Police arranged for theProthonotary of the Supreme Court, George MacMillan, to attend on the scene as well.An hour or so later, which was not too long before daybreak, the Prothonotary brokeredsome arrangement between the lawyers for the landlord and the tenant whereby theequipment would be kept in abeyance until the lawyers could have the rights of theparties determined upon a motion to a judge. This apparently satisfied everyone for thetime being, and everyone soon left the scene.

Issues

[3] The Plaintiffs assert that the Sheriff took a tractor trailer and a cube van and theircontents of gym equipment and related personal property into the Sheriff’s care andresponsibility on behalf of the landlord and the tenant. The Defendants refute thatassertion. They submit that there was no agreement to that effect, and that the Sheriff didnot become a bailee or assume any role of care or responsibility regarding the propertytoward anyone.

[4] The first issues for determination are:

• What agreement, if any, was made involving the Defendants, and whowere the parties to that agreement?

• What obligation, if any, did the Sheriff undertake toward the Plaintiffs andany other person regarding care or safe keeping of the personal propertythat was stored in the trailer and cube van and later stolen?

[5] The next morning, which was the Monday holiday, the trailer and van were in theGovernment parking lot in downtown Charlottetown. On Monday afternoon, thePlaintiffs’ lawyer delivered a Notice of Distress to Deputy Sheriff Acorn at his home. Hedid not require an inventory or any other attendances by the Sheriff.

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[6] The following day, Tuesday, Government building personnel called the Sheriffand required that the trailer and van be moved. The Sheriff moved the trailer to theLiquor Control Commission warehouse loading area in Charlottetown (“LCC parkinglot”). The van was returned to the truck rental store. During the second night following,Wednesday night, the trailer with its contents of gym equipment disappeared, forever.

[7] The next issues for determination are:

• What liability, if any, did the Defendants incur regarding the personalproperty contained in the trailer that was stolen:

a. If it is found that during the Sunday overnight events theSheriff became a bailee or otherwise assumed responsibilityfor care and safe keeping of the goods on direction of theProthonotary?

b. If the Sheriff did not undertake any such responsibility, butthe Sheriff received a Notice of Distress and was involvedin moving the trailer from the Government Building parkinglot to the LCC parking lot and storing it there?

[8] Should the Defendants be liable for the Plaintiffs’ loss, then the final issue will bethe amount of the Plaintiffs’ loss. The two factors affecting quantum are the value of thecontents of the trailer and the amount of the Plaintiffs’ net loss after other recovery.

[9] The role of the Sheriff and his legal responsibility to the Plaintiffs either as baileeof the property or otherwise is central. The positions of the parties are opposite. ThePlaintiffs assert that pursuant to agreement between the lawyers for the landlord andtenant which was announced by the Prothonotary, on the Prothonotary’s direction theSheriff took the vehicles into his safe keeping on behalf of the landlord and tenant untilthey could get their dispute before a judge to resolve their competing claims. TheDefendants acknowledge the landlord and tenant may have made an agreement betweenthemselves, but they deny the Sheriff was given or undertook any responsibility towardthem regarding the property in the vehicles.

Law of bailment

[10] A bailiff or bailee is one to whom some authority, care, or guardianship, iscommitted. A Sheriff’s deputy can be a bailee. A prerequisite to bailment is consent ofthe bailee. An essential element of bailment is possession of the property. Possessioninvolves control over the property.

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[11] The law distinguishes between gratuitous bailee and bailee for reward. If it isproven that the Sheriff was a bailee, then he would be a bailee for reward. The Officeof the Sheriff provides a business service; it does not perform its services gratuitously.This determination invokes these standards: (i) A bailee for reward can be found liablefor ordinary negligence. (ii) Once it is established the property was in the bailee’spossession at the time it was lost, the bailee bears the onus of proof of disproving theinference of negligence or failure to exercise care and diligence which arises from theloss. The bailee has to show the loss occurred without negligence or fault or misconducton his part. (iii) Proof of absence of negligence will relieve a bailee from liability. (iv)The standard of care expected of a bailee for reward is due care and diligence in keepingand preserving the entrusted property; in other words, reasonable care to see that theplace in which the property is kept is a fit and proper place for the purpose, and shouldthe property be stolen, to recover it.

Evidence

[12] The parties adduced evidence of the events and arrangements made. Most isreconcilable; some essential points are in direct conflict. In the circumstances, it is usefulto summerize the evidence with closer refererence to the key evidence.

• Plaintiffs’ case

[13] When Donald Dover first heard of the tenant’s clandestine activity, he called thepolice and asked them to stop the move until he could get to the site. He arrived about2:00 a.m., with his friends Vaunda Whelan and Wayne Beaton. Deputy Sheriff Acornarrived after him. He says both he and Mr. Acorn were inside the building. He thoughtthe Sheriff represented the law, and was in charge. Mr. Dover spoke to Mr. Acorn aboutstopping the move until his lawyer arrived. Mr. Acorn said he would “put a stop to it”and then asked the movers to stop. They continued on. Mr. Dover entered the trailer,and saw it was “pretty well packed” with gym equipment as far as he could see from theopen end. He called his solicitor David Larter to see what they could do about keepingthe equipment under the chattel mortgage security. Mr. Dover described himself as“pretty upset”. He was concerned his only security for his losses was being removed.Conversation between Messrs. Larter and Hennessey was not producing any solution.Then Mr. MacMillan arrived and became involved. Mr. Dover says that Mr. MacMillan,the lawyers, and the Sheriff met inside the building, and then they emerged outside,whereupon Mr. MacMillan said the problem would not be resolved tonight, and theywere going to leave it with the Sheriff until it could be resolved at a later time. Mr.MacMillan said this was an agreement between the parties, that he was working onbehalf of both Messrs. Dover and Cameron, and that he, Mr. MacMillan, and the Sheriffwere going to take over the situation and lock up and secure the vehicles. Deputy Sheriff

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Acorn was present during that announcement. He testified that Mr. Acorn then said, “I’llget my locks, and lock the vehicles.”, and that Mr. Acorn then proceeded to go towardthe trailer for the purpose of locking it. Mr. Dover saw the trailer doors swinging, andthen saw Deputy Sheriff Acorn walk back. Mr. Dover saw the tractor trailer and cubevan not locked before Mr. MacMillan’s statement, and locked afterwards. The locks usedwere not Mr. Dover’s locks.

[14] On cross-examination, Mr. Dover acknowledged that he stated in discovery thathe “thought” the Deputy Sheriff had gotten the locks from his car. The Deputy Sheriffasked him if he had a way of changing the locks on the premises. The Deputy Sheriffsaid only that it was being looked after, secured, that everything was going to be all right.He did not see the vehicles being moved and does not know who moved them. He saysthe Deputy Sheriff was present and “was directing, I would say.” When Mr. Dover leftthe tractor trailer was parked across the street in the parking lot. Mr. Dover left to obtainlock cylinders for the building doors, and then returned and secured the premises. Mr.Dover testified he advised everyone he was concerned about the safety of theequipment, and it was his understanding from George MacMillan that the Sheriff wasgoing to take the goods into his hands for security of both parties. Mr. Dover did notgive any instructions to the Sheriff directly. His undertaking was that his lawyer did. Nordid the Deputy Sheriff ever say to him that he was accepting responsibility.

[15] On Monday, Mr. Dover posted the premises with the Distress Notice. He did thatto secure his position.

[16] The next time Mr. Dover saw the trailer was Tuesday morning in the Governmentparking lot. He responded to a call from the Sheriff’s Office. He was advised, or “told”,the trailer was to be moved to the LCC parking lot. He said he “had no trouble withthat.” Mr. Dover provided a fifth wheel lock. Its purpose is to secure the trailer. Hegave the lock to Mr. Acorn, who accepted it: “That’s great.”, and passed it along to thedriver Mr. Martin who said he would put it on at the new location. The single key wentto the Deputy Sheriff. There was already a lock on the door on the back of the trailer.The equipment was still inside.

[17] Mr. Dover never saw the trailer or its contents again. He did not insure thecontents because he considered it was all in the Sheriff’s possession.

[18] On Wednesday, Mr. Dover saw the cube van at the truck rental store. TheSheriff’s Office had advised him they had lawyer’s papers claiming the Stairmasters andthey wanted Mr. Dover present. Neither Mr. Dover or the Sheriff had a key to the van.Deputy Sheriff Acorn said he was responsible, and gave the order to break the lock.Upon having access to the cube van and carrying out his work, the Deputy Sheriff lockedit again, and kept the key.

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[19] Except for the Stairmasters, the rest of the equipment from the cube van wasreturned to the premises. This was done by the Sheriff from the truck rental store on Mr.Dover’s direction. Mr. Dover eventually found a buyer for the realizable value of thatproperty. He applied the proceeds of $9000-$10,000 to cleanup costs and toward thearrears account. The sale was not a formal distress sale; and was not a sale pursuant tothe chattel mortgage.

[20] After the trailer was stolen, the Sheriff informed Mr. Dover. The Sheriff did nothave a license plate number for the trailer. Mr. Dover had that information, and gave itto the Sheriff. Subsequently, Mr. Dover became upset upon learning from the PoliceDepartment that the trailer was never reported stolen.

[21] The evidence does not suggest Mr. Dover ever took any steps to seize and sell theAmigo’s Gym property under the chattel mortgage. Mr. Dover sued the tenant; but itbecame clear that endeavour would produce no return. He then commenced this actionagainst the Sheriff and the Province.

[22] David Larter was the Plaintiffs’ lawyer. At Donald Dover’s request, he attendedon the scene. He arrived between 2:00 and 2:30 a.m. He observed the scene, thenwent to his office, and returned. He saw Mr. Cameron’s lawyer Mr. Hennessey andDeputy Sheriff Acorn outside the building. Mr. Hennessey went inside; Messrs. Larterand Dover did not. He and Mr. Dover were adamant the vehicles not leave thepremises. After Mr. MacMillan became involved, Messrs. Larter, Hennessey, andMacMillan spoke together. Mr. Acorn “may have” participated peripherally. “In theend,” between 4:30 and 5:00 a.m., Mr. MacMillan stated or suggested the matter wouldnot be resolved there, and “the Sheriff would take possession of the tractor trailer andthe cube van.” That met with approval. Mr. Acorn was present for that. Mr. Larterreiterated the arrangement: He and Mr. Dover were adamant the property was not goingto leave the premises, and the Sheriff was going to take the personal property into hispossession. When Mr. MacMillan mentioned “possession”, there was no discussion oragreement of any authority therefor. For Mr. Larter, once the Plaintiffs’ knew thepersonal property was seized, authority was not in issue for him and Mr. Dover. Therewas no agreement as to where the property was going, and Messrs. Dover and Cameronwere not involved in that decision. Mr. Larter did not recall any specific discussionbetween himself and Mr. Acorn, and he did not give any instructions to Mr. Acorn.

[23] On Monday, Mr. Larter spoke with Mr. Hennessey about getting the matter beforea judge. Mr. Larter prepared distress documentation and delivered it to the Sheriff onMonday afternoon. He did not issue any further instructions to the Sheriff, inconfirmation of the events, agreement and terms of bailment, or under the chattelmortgage at all.

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[24] Randy Cameron was a principal along with Paul Gaudet in Amigo’s Gym.According to him, the obligations of the lease of the premises were secured by a chattelmortgage which covered “everything and anything.” Rent was usually in arrears, andarrears then amounted to about $20,000. There was ongoing discussion with Mr. Dover.The nighttime move was an attempt to remove the goods before Mr. Dover carried outhis stated intention to lock the premises on the Tuesday after the holiday weekend. Mr.Cameron said he intended to sell the equipment and pay the arrears. Mr. Cameron hadconsulted legal counsel on the matter.

[25] At the scene, the police arrived first, and Mr. Dover arrived an hour to an hourand a half later. When Mr. Dover arrived, he was upset, and he wanted the movingactivity to stop. It continued on. Mr. Cameron testified that the tractor trailer hadreceived on board gym equipment – the larger, heavier equipment, plus weights, cardio-bikes, steppers, and free weights. He brought his then present lawyer John Hennessey,Q.C. to the scene. He then saw David Larter and Deputy Sheriff Acorn. He describedthe scene as “pretty chaotic”, with all kinds of discussion going on, and no one havingany idea of what was to be done. Mr. Cameron directed the half-ton truck and cube vanbe driven away. Once George MacMillan became involved, Mr. Cameron observed agathering in a circle. Mr. Cameron spoke with Mr. MacMillan. He testified that in thediscussion in the circle, Mr. MacMillan advised that until things were sorted out, thegoods would be held “in the Province’s custody, I guess.” He believed Mr. MacMillantook control of the situation, and that he instructed the Sheriff. He testified that Mr.MacMillan explained to him what was going to be done, which was that all the itemswould be taken under possession by the Sheriff. This made sense for Mr. Cameron,because he did not want Mr. Dover to have control over the goods, and Mr. Dover feltthe same way in return. Mr. Cameron did not observe Mr. Acorn take any initiative –indicate any action, direct any movement of the vehicles, move the vehicles, or placeany locks.

[26] Mr. Cameron does not recall receiving any document from anyone to terminatethe lease. His business declared bankruptcy in 1999.

[27] Vaunda Whelan is a friend of the Plaintiffs. She attended on the scene with Mr.Dover, and she was there most of the time from about 2:00 a.m. to 5:00 a.m. Sheremained in Mr. Dover’s vehicle and observed. Upon arrival, she observed a busyscene. William Acorn arrived after the first police arrived, and before the lawyers. Sheobserved the lawyers caucusing in the midst of the chaos in front of the building. Mr.Acorn was not a participant in those discussions, and she did not see him interfere withthe moving activity. Later on, after Mr. Larter and Mr. Dover had gone to Mr. Larter’soffice for some information and returned about 45 minutes later, Ms. Whelan observedMr. MacMillan being present and appearing to bring calm and order to the situation, and

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further caucusing occurring among the lawyers and Mr. MacMillan. The Deputy Sheriffwas within that group. After everyone else left, she went into the building with Mr.Dover while he secured the premises. At that time, the tractor trailer was parked acrossthe street in the Wackey Wheatley store parking lot. Overall, Ms. Whelan did not seeor hear the Sheriff take any initiatives – give or accept any instructions, apply any locks,or move any vehicles.

[28] Wayne Beaton is a friend of the Plaintiffs, and their accountant. He alsoaccompanied Mr. Dover to the scene. Once there, he wandered about and observed.Neither the police nor Deputy Sheriff Acorn interfered with the moving activity. Mr.Acorn was generally located outside 20-30 feet away from the moving activity. BeforeMr. MacMillan arrived, two loaded vehicles, a half-ton truck and the cube van, departedquickly out St. Peters Road. After Mr. MacMillan’s arrival, there was some order on thescene. Mr. Beaton observed Messrs. MacMillan and Acorn conversing. He picked uponly bits of their exchange – some gestures, and conversation about the matter not beingsettled tonight, and whether the matter of moving the goods out was civil or criminal.He is quite certain the Deputy Sheriff was present when the tractor trailer was movedacross the street. Mr. Beaton went into the building while Mr. Dover secured it. He didnot observe the Sheriff taking any particular initiative – accepting or giving anyidentifiable instructions, or locking vehicles or the premises, or moving vehicles.

[29] Dean Buell is the manager of the truck rental store. He rented the cube van toAmigo’s Gym. It was a Sunday rental for a Monday return. When it did not come backon time, his principal Barry Balderson drove it back, with the contents still on board. Itremained that way until Deputy Sheriff Acorn appeared on Wednesday, and wanted tosee inside. No one had a key. On instructions of the Deputy Sheriff Acorn, Mr. Buellbroke the lock. Deputy Sheriff Acorn entered the van and appeared to take some formof inventory. Mr. Dover arrived during this exercise. Mr. Acorn then applied a Sheriff’slock to the cube van and retained the key. A day or two later, on instructions by Mr.Balderson, the cube van was taken away, unloaded, and returned. Mr. Buell understoodthat the contents were moved on instructions from the Sheriff’s office.

• Defendants’ case

[30] William Acorn was a Deputy Sheriff; he is now retired. He made notes about hisinvolvement. His notes advise he arrived about 4:40 a.m.; though he would havethought it was more like 3:00 a.m. He responded from bed to a nighttime call from CityPolice. He travelled in his own vehicle, and came out as a favour to Cst. Vessey. Mr.Acorn considered he had no authority to be there outside his daytime business hours.He was just there as an “authoritative figure.” Mr. Acorn’s basic position is that he didnot do anything – that he would need papers to act, and had none.

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[31] When Mr. Acorn arrived at the scene, the gym was cleaned out, and the movinghad ceased. Mr. Acorn recalled the lawyers Larter and Hennessey being present, andGeorge MacMillan arriving later, at about 5:30 a.m. Before Mr. MacMillan arrived, noone knew what to do, and Cpl. Quinn of City Police suggested the Prothonotary bebrought in, because he would know what to do. Mr. Acorn described the scene as a“pretty active spot” and “quite a schmozzle” with all the vehicles and people present asmentioned by other witnesses plus police lights flashing. He considered it a “theft in thenight” situation. He does not recall taking control of any vehicles or moving activity.He recalls the lawyers and Mr. MacMillan talking together, and Mr. MacMillan bringingmatters under control. Mr. Acorn was not in or about that meeting. Those meeting wereinside in an office, and Mr. Acorn was not indoors beyond the entrance. Mr. MacMillanmade an announcement that the differences would not be resolved tonight, and of theagreement. He does not recall that the Sheriff was to take control. He observed a totallack of trust between the parties. His understanding when he left was that he had norole, that the lawyers for the parties had agreed there was a dispute over ownership thatthey would bring before a judge on Tuesday. He said he then went home and back tobed. He acknowledged the suggestion in cross-examination that he may have agreed tolook after vehicles, but he has no recollection of that. He did not move the vehicles. Mr.Acorn’s view of the situation was that Mr. Dover trusted the lawyers to look after matters,and a judge would decide later.

[32] On Monday, afternoon, Mr. Larter appeared and asked Deputy Sheriff Acorn tosign a Distress Notice. No request was made for an inventory, as the goods were alreadygone from the premises and in the trucks.

[33] On behalf of the Sheriff’s Office, Mr. Acorn billed $87 based on $40 per hour fortwo hours in the parking lot. He billed Mr. Larter because he was the one who camewith distress papers the next day.

[34] On Tuesday morning, Mr. Acorn informed the Sheriff about his activity Sundayovernight.

[35] Later on Tuesday, on Sheriff’s instructions Mr. Acorn participated in the move ofthe trailer from the Provincial Government parking lot to the LCC parking lot. Heobtained the driving service of David Martin, received the locking device from DonaldDover, asked Mr. Martin to install the collar, and followed the move. He does not recallwhether he received the key. He stated in any event he would not have retained the key.He accepted his discovery evidence that he did not give the key to Mr. Dover. Thoughnormally he would, the Sheriff’s Office did not bill for this service.

[36] Mr. Acorn’s first involvement with the cube van that he can remember was onWednesday at Atlantic Rentals. He acted on Gould Leasing instructions to the Sheriff

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regarding the Stairmasters. On further Sheriff’s instructions, he followed the removal ofall remaining cube van contents back into the leased premises.

[37] On Thursday at 8:30 a.m., Mr. Acorn received a call from the LCC which advisedhim the trailer had been removed.

[38] George MacMillan was the Prothonotary of the Supreme Court. He included inhis own multifaceted job description working with and sometimes advising the Sheriff’sOffice and mediation in various forums.

[39] On the Sunday overnight, Cpl. Quinn called him out to the scene at about 3:00a.m. Once at the scene, he observed the tractor trailer backed up to the building, a lotof people milling about, police, and Messrs. Larter, Hennessey, and Acorn. He was therefor an hour to an hour and a half, during which time he participated in discussions. Upuntil shortly before trial, he had not thought much since about those events.

[40] The Police Constable briefed him – people were trying to remove goods, Mr.Hennessey was present for the tenant, Mr. Larter was present for the landlord, the policehad been called, and Mr. MacMillan had been called to help the police sort out thematter. Mr. MacMillan discussed the matter with the police, Messrs. Hennessey andLarter in a “pitcher’s mound” setting in the parking lot. Mr. Acorn was at the scene, buthe was not involved in that meeting. For Mr. MacMillan the issues were quite clear –landlord and tenant, distress, and both sides not to do anything until a motion to theCourt and judge’s ruling. Mr. MacMillan did not recall any decision about the Sheriff orthe Sheriff taking custody of the goods. He stated that he did not direct the Sheriff tolook after the trailer, this being a private dispute between two citizens, the landlord andtenant. There were no documents, as the nighttime event was a surprise to everyone.

[41] On Tuesday, Mr. MacMillan’s only involvement was a call from Sheriff Driscollabout moving the trailer from the Government parking lot. Mr. MacMillan did not sayanything, though the move made sense to him as he wondered why the trailer was therein the first place.

[42] Mr. MacMillan knows the parties. He was not discovered. He recalls Mr. Dovercame to him as Prothonotary a few times, “pleading for assistance.”

[43] Cross-examination of Mr. MacMillan involved a protracted point of contentionabout credibility following a pre-trial conversation between counsel and him. Shortlybefore trial, Plaintiffs’ counsel contacted Mr. MacMillan and introduced discussion aboutthe quality of custody the Sheriff had in the goods. At first, without recalling back, Mr.MacMillan gave responses which led counsel to conclude, rightly or not, that the Sheriffwas taking care of the goods. At that time, Mr. MacMillan qualified his responses as

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being without having thought about it and subject to further recollection, checking, andfirming up. Plaintiffs’ counsel issued a confirmation to the effect that the Sheriff wasindeed taking care of the goods. Mr. MacMillan objected to such a conclusion, on thebasis that he did not know that, having had nothing to do with that. Mr. MacMillanreiterated and reinforced the particulars of his involvement. It was good enough for himthat both lawyers agreed that their clients would not touch the goods. It was not asolution imposed by him, as a representative of the Court. He does not recall how thevehicles came to be locked, or who moved them. He assumed there was no distressbecause there was no papers. Overall, there was no court process, or governmentprocess; it was “a dispute between two lawyers.” He would only have announced it thatway. In his view, the lawyers had control over their clients. Mr. MacMillan emphaticallyreiterated that the Sheriff had no papers and no status on the scene that night, and thathe did not instruct the Sheriff to take control of the vehicles or move them to theGovernment parking lot.

[44] The existence of the Plaintiffs’ chattel mortgage security was never mentioned toMr. MacMillan.

[45] Frank Driscoll is the Sheriff. He is responsible for Sheriff’s Services across theProvince, and directly for Queen’s County. He had four Deputy Sheriffs, including Mr.Acorn. He considered Mr. Acorn a model employee, right up to his retirement. TheSheriff’s Office provides a full range of services. One of the various functions of theSheriff’s services is repossession of property under security instruments; another isproceedings under the Landlord and Tenant Act. This is done on instructions from thesecured creditors and landlords respectively. The usual practice and level ofresponsibility varies, but usually includes prepared instructions, and sometimes involvesmovers and warehousing. No such instructions were received in the present case, exceptthe Notice of Distress.

[46] Sheriff Driscoll’s first knowledge of the events in issue was first thing Tuesdaymorning, when Mr. Acorn informed him about the Sunday overnight activity. From thisbriefing, Sheriff Driscoll obtained the understanding that Mr. Acorn had received nodocumentation, had no authority to do anything, undertook no responsibility, and waspresent only as a favour to the Police.

[47] Because Mr. MacMillan had been involved too, Sheriff Acorn consulted with him.This confirmed his first impression. Sheriff Acorn then understood more particularly thatthere was agreement between the parties that the van and trailer be moved off the siteto a neutral location; and no action was needed from the Sheriff. Mr. Acorn had notbeen involved in moving the trucks.

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[48] Regarding Monday, Sheriff Driscoll was informed by Mr. Acorn that Mr. Larterhad asked him to sign a Notice of Distress, but that there was no further documentationreceived. That was no a concern for the Sheriff because he understood the parties wereoperating under their agreement from the previous night.

[49] Sheriff Driscoll was centrally involved in the Tuesday morning trailer move. Hefirst received a call from John Bruce, the Government’s Manager of Operations, whowanted his parking spaces vacated. Mr. Bruce thought the Sheriff might know somethingabout the situation, and suggested the LCC parking lot as an alternative neutral location.The Sheriff consulted with the parties to seek their permission, because he did not thinkthat the Sheriff had possession. Instructions were received from the parties or theirlawyers to move the trailer and the van. There being no tractor, the Sheriff asked DeputySheriff Acorn to make that arrangement, which he did. The Sheriff and Deputy SheriffAcorn were to have the driver send his bill directly to David Larter.

[50] On Wednesday, Barbara Smith, a Charlottetown solicitor on behalf of GouldLeasing contacted the Sheriff and gave instructions for a process for possession of theStairmasters under a lease. The Sheriff obtained permission from the parties or theirlawyers to enter the van, and then proceeded to carry out the Gould Leasing instructions.Ms. Smith paid the Sheriff’s account for all of this service.

[51] Wednesday overnight the trailer disappeared. On Thursday morning, the Sheriffimmediately called City Police, Mr. Dover, Mr. Larter, and Mr. Hennessey. The Sheriffthen spoke with Mr. Cameron’s lawyer Mr. Hennessey who then intimated to him thatMr. Cameron would accordingly have no further interest in the agreement or the Sheriff’sinvolvement.

[52] Sheriff Driscoll was asked to characterize the relationship of the Sheriff’s Officewith the parties in legal terms. It is his position that the Sheriff’s Office never acted asagent for the Plaintiffs. In his undertaking, the agreement was between the lawyers. Onthe Sunday night, the Deputy Sheriff Acorn was present at the request of the Police, tookno action or responsibility, and billed $87 for his attendance. He noted there was noindemnification provided as would usually occur on taking goods for a party. It wouldalso not be in the usual course to seize property or act toward property on instructionsfrom the Prothonotary, although there is flexibility and cooperation, and it has happenedbefore. This time, both the Prothonotary and the Deputy Sheriff had advised the Sheriffthere was no such instructions. The Sheriff stated there was never any instructions fromthe Plaintiffs under the chattel mortgage, and that Mr. Larter handed him the distressdocuments only on Tuesday. This was not normal procedure – there was no advancenotice, the goods were already gone from the premises, and no Sheriff’s inventory wassought. A distress process does direct the Sheriff’s Office to be agent. When the Sheriff’sOffice moved the trailer to the LCC parking lot, he was not acting as an agent for the

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Plaintiff – he was expediting, helping out, acting as a peace officer, trying to keep thepeace – he accepted that he could then be viewed as agent for all the parties claimingthe property, which he distinguished from being agent for the Plaintiffs only. TheSheriff’s Office involvement on Tuesday was on the assumption that no obligations hadbeen incurred on Sunday night. All he had was the Distress Warrant. George MacMillangave no instructions on Tuesday, and did not offer to cover any cost of storage. Neitherof the claimants or their lawyers asked for a guard, or the Sheriff would have placed aguard. It was their arrangement, not the Sheriff’s, until the lawyers could get before ajudge. This was not a normal situation. The Sheriff’s Office never billed for therelocation service provided on Tuesday.

[53] David Martin is a tractor trailer driver. On the Tuesday, he acted on a requestfrom Mr. Acorn. He moved the trailer from the Government parking lot to the LCCparking lot. He received the trailer locking device from Mr. Acorn, and he installed itafter the move. As he recalls, Mr. Acorn said he would look after payment, but paymentwas never made.

Deliberation and decision

[54] Whatever the Defendants Driscoll and Acorn did, they did it in their capacity asSheriffs. That is what they said in their testimony. It is also consistent with the SheriffsAct, R.S.P.E.I. 1988, Cap. S-4.1. This Act creates the Office of Sheriff, stipulates thatappointments be made pursuant to the Civil Service Act, R.S.P.E.I. 1988, Cap. C-8,constitutes all sheriffs as officers of the court, and requires the Sheriff to maintain acomplete accounting of fees. The Sheriffs Act prohibits sheriffs from freelancing –demanding or receiving a fee, or preforming any duty in a personal capacity that couldbe preformed in his official capacity. There is no statutory provision expressingimmunity from liability.

[55] Should it be held that the individual Defendants are liable to the Plaintiffs, thenit would seem to logically follow that the Defendant Government would be the partycalled upon for payment. The Defendants Driscoll and Acorn having acted within theircapacity as Sheriffs, the Government would be vicariously liable for the damagesresulting from their acts, and responsible to save them harmless. The Government’sultimate responsibility in that regard is advised by s. 4 of the Crown Proceedings Act,R.S.P.E.I. 1988, Cap. C-32.

• liability from Sunday overnight events

[56] It is my conclusion that the Defendants did not assume any liability toward thePlaintiffs during the site activity Sunday overnight. This conclusion follows from twoseparate theories.

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[57] First, it has not been proven that there was any agreement between the Plaintiffsand the Deputy Sheriff because the required consensus ad idem was not present. Therewas no meeting of the minds. Accepting that Messrs. Dover, Larter, and Cameron heardwhat they said they heard, it remains that William Acorn said he received no instructionsand did nothing and George MacMillan said he gave no instructions to Mr. Acorn. Iaccept their evidence, though it stands uncontradicted on the essential point ofinstructions to the Deputy Sheriff. Donald Dover observed Mr. Acorn’s activity, but didnot instruct Mr. Acorn; he relied on his lawyer. Mr. Larter did not instruct Mr. Acornthat night, nor did he ever confirm any instructions afterwards.

[58] The only Plaintiffs’ witness whose testimony extended to saying Mr. MacMillanactually instructed the Sheriff to take the vehicles into his custody was Randy Cameron.He then acknowledged that he did not ever see Mr. Acorn take charge of the vehicles orgive any direction to anyone. Credibility comes into play. Whether this evidence be hisfair recollection or an extension, given the record of Mr. Cameron’s other participationin events – his deceit toward Mr. Dover, his unilateral removal of two loaded vehiclesin the face of direction to the contrary by public authorities, his lack of performanceunder the lease, the damage caused to the premises, the bankruptcy of his gym business– I prefer the clearly expressed statement of Mr. MacMillan, and the matching evidenceof Mr. Acorn.

[59] Instructions are a crucial link for the existence agreement. Without an assignmentbeing issued to the Deputy Sheriff and accepted by him, there was no bailment or otheracceptance of custody, safekeeping, or associated Sheriff responsibility.

[60] Second, upon considering and applying the onus and standard of proof for civiltrials to the evidence, I am not satisfied that an agreement for bailment or other duty ofresponsibility is proven. This is a case where weighing the evidence is in play. Someimportant evidence is in conflict. The onus is on the Plaintiffs to prove their assertion ofa contract of bailment as the basis for Defendants’ liability. I accept the evidence ofMessrs. Acorn and MacMillan as an honest recollection, and sufficiently reliable,especially on the essential points, to outweigh the evidence on behalf of the Plaintiffs.Deputy Sheriff Acorn denied having received any instructions on having taken anyinitiatives on behalf of the Plaintiffs. The Prothonotary, Mr. MacMillan’s evidencecorroborated that position. He testified that he did not instruct the Deputy Sheriff to doanything. I also accept the evidence of the Plaintiffs’ witnesses. Mr. Larter may wellhave obtained the understanding of which he testified, and conveyed this to Mr. Dover.The evidence of Randy Cameron corroborates that view. However, the Plaintiffsevidence does not amount to the weight of the Defendants’ evidence on the essentialpoints. Impressions and understandings from an ad hoc caucus held in the midst of achaotic scene are not sufficient to outweigh an express denial of any agreement for

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Sheriff involvement coupled with a clear statement that no instructions were given anda recollection that no instructions were received.

[61] It is noteworthy that other people whom one would expect would have vitalinformation about any agreement made and instructions given were not called aswitnesses. Mr. Cameron’s lawyer, John Hennessey, Q.C. was present throughout and wassaid to have been privy to the agreement. The City Police were present throughout.Could they have told the Court who moved the trucks from the site to the ProvincialGovernment parking lot? I am not making negative inferences on this account. But itremains that whatever evidence those persons may have provided is not available topoint toward Defendants’ involvement as alleged by the Plaintiffs.

[62] In this assessment, I have borne in mind the challenges by counsel to thereliability of evidence of Mr. Acorn related to his weakened recollection, of Mr. Doverdue to his excited state at the scene, and to both of those parties related to their previousstatements on examination for discovery.

[63] I find that Deputy Sheriff Acorn was called to the premises during the earlymorning hours by City Police, that he stayed on the site throughout the discussions,although he did not participate in the discussions, that it is not shown that he receivedany particular instructions from either George MacMillan or the solicitors of the landlordand tenant. Deputy Sheriff Acorn did not see the contents of the vehicles. He did notseize the tractor trailer, cube van, and their contents, and he did not take that propertyinto his possession, or into his custody on behalf of anyone. It is not proven that hesupervised the movement of the vehicles to the Government parking lot or theirtemporary storage at that location. Only afterwards did the Office of the Sheriff becomeaware of the off-site location of the goods at the Government parking lot. Never wasthere any confirmation of instructions for seizure or safekeeping issued from the Plaintiffs’solicitor, or the tenant’s solicitor to the Sheriff or the Prothonotary.

[64] This conclusion is supported by the subsequent events. There was never anywritten instructions issued by the Plaintiffs’ lawyer to the Sheriff’s Office. Given theevidence of usual practice, written instructions during business hours following thechaotic events of Sunday overnight could be expected. Written confirmation would inany event have made the Sheriff aware of whatever the Plaintiffs’ expectations andreliance were while the trailer was still at the Provincial Government parking lot. Twobusiness days passed before the trailer disappeared.

[65] The curiosity of why the Sheriff became involved on Tuesday is satisfied by SheriffDriscoll’s testimony, which advises that Mr. Bruce from Public Works called him withthe thought the Sheriff might know something about it.

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[66] The weight of the evidence does not prove instructions to the Sheriff, or terms.The evidence does not support a finding that the Sheriff accepted possession of thegoods, or responsibility for their safekeeping. Curiosity is raised as to how theGovernment parking lot site was chosen, and how the vehicles were moved to thatlocation; but the evidence does not advise the Deputy Sheriff directed the move ormoved the vehicles, and liability cannot be based on conjecture.

• Notice of distress

[67] During the day of May 20, 1996, the Plaintiffs’ solicitor David Larter servedWilliam Acorn on behalf of the Sheriff for Queens County with a Warrant of Distress.The stated amount of arrears of rent was $20,694.

[68] Distress is a discrete landlord remedy for seizing and selling tenant’s personalproperty. The procedure, which is age-old, is stipulated by the Landlord and Tenant Act,R.S.P.E.I. 1988, Cap. L-4.

[69] Question was raised about the effectiveness of the distress process carried out bythe Plaintiffs. Distress is a complicated exercise that is fraught with pitfalls. However,in my opinion none of the concerns come between the Defendants and the Plaintiff.Under Part II of the Landlord and Tenant Act, supra, where a tenant has clandestinelyremoved goods, a landlord can distrain against a tenant’s personal property that is or wassituate in the premises between 8 a.m. and 5 p.m. within 30 days following removal ofthe property.

[70] In this case, a clandestine removal at night was underway, the landlord and tenantagreed the goods would be held over until their respective rights were decided, and thedistress paperwork was subsequently served during the permitted hours. Goods thatbelonged to another person, Gould Leasing, were subsequently released. Uponreceiving the Notice of Distress, the Sheriff, as bailiff, could not take an inventory,because the goods had already been stored in the trailer and cube van by the tenantwhen the landlord became involved.

[71] Donald Dover sold the goods remaining in the cube van after release of theStairmasters. There is no complaint before the Court about him not having followedprescribed process on sale of those goods. The Plaintiff applied part of the proceeds ofsale against the arrears, leaving only the difference of arrears remaining subject to thelandlord’s distress. Regarding that difference, the Defendant cannot benefit from anydeficiencies in the landlord’s distress process. The Plaintiff had pursued distress, andthere is no indication the tenant had raised any problem with the distress process. ThePlaintiff also had the security of a chattel mortgage over the goods upon which it couldfall back upon should the distress have been ineffective or fallen short.

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• The Tuesday move

[72] Regarding the movement of the trailer from the Government parking lot to theLCC parking lot, I find these facts. After the holiday weekend, first thing after start ofGovernment hours, a Government official, John Bruce, complained to Sheriff Acorn thatthe trailer was blocking parking spaces in the Government parking lot. Sheriff Driscollcontacted Mr. Dover, Mr. Hennessey, and left a message for Mr. Larter. The landlordand tenant or their representatives gave permission to move the trailer to the LCC parkinglot and for the cube van be returned to Atlantic Rentals. Deputy Sheriff Acorn arrangedfor a personal contact who had a tractor to move the trailer, on a fee for service basis.The Plaintiff, Donald Dover, provided the hitch locking device, the driver moved thetrailer and installed the device, and Deputy Sheriff Acorn followed the move and thenheld the key.

• Wednesday with the cube van

[73] The Sheriff had further involvement on Wednesday. Deputy Sheriff Acornreturned the cube van to Atlantic Rentals, and he participated in the release of itscontents to the other claimant and to the Plaintiffs. The evidence is quite clear abouthow these relationships and resulting responsibility came into being.

[74] The Sheriff acted on written instructions from a solicitor for Gould Leasing to takepossession of the Stairmasters under a lease. The Sheriff’s Deputy entered the cube van,took possession of the Stairmasters, and followed the delivery of the remaining contentsto Mr. Dover. This was all done with appropriate direction and involvement of theowner of the cube van and Mr. Dover. No liability results from this activity. It doesthough provide some context for the Sheriff’s involvement and the relationship betweenthe Sheriff and the Plaintiffs.

• Liability regarding the stolen trailer

[75] On Thursday May 23rd, upon being informed the trailer was gone, the Sheriffnotified Messrs. Dover, Larter and Hennessey, and the Police.

[76] The classification of the Sheriff’s involvement with the trailer and contents fromTuesday, May 21st onward until it disappeared is a different matter. The Sheriff wasinvolved. On Tuesday, the Sheriff’s Office made an arrangement with the interestedparties, then moved the trailer to the LCC parking lot, and then held the key for the hitchlocking device. On Monday, the Deputy Sheriff had received a Notice of Distress,although no further instructions.

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[77] At issue is what this new arrangement was, whether the Sheriff had a duty of care,and whether in all of the circumstances the Sheriff is liable for the loss of the contents ofthe trailer.

[78] Upon considering all the evidence, I conclude that (i) the Sheriff did not becomea bailee; (ii) the Sheriff did assume a limited duty of care toward the Plaintiffs; and (iii)the Sheriff did not breach his duty of care, and was not negligent. In the result, there isno basis for liability.

[79] By the time the trailer disappeared, Mr. Dover had involved the Sheriff in thedistress process, in the move of the trailer, in holding the key for the hitch lock, theSheriff had involved Mr. Dover in the Gould Leasing seizure from the cube van, and Mr.Dover had involved the Sheriff’s Office in transferring the rest of the cube van contentsback to the premises. During this time, Mr. Dover and the Sheriff were operating withdifferent understandings of the underlying relationship. In my assessment, the weight ofthe evidence does not show the Sheriff became bailee, or assumed possession or custodyby any other involvement.

[80] On Monday, when distress papers were delivered, no inventory was required, andno instructions were provided for storage, safekeeping, indemnification, or payment.

[81] On Tuesday, the Sheriff was centrally involved in the move. I accept his evidencethat the landlord and tenant or their lawyers took up the suggestion that originated withMr. Bruce to try the LCC parking lot alternative. The Plaintiffs did not ask or instruct theSheriff to take possession or to be responsible for safekeeping of the trailer and itscontents. Maybe they assumed the Sheriff already had possession. But I find if that is so,there was no meeting of the minds. The Sheriff understood he did not have possession.The key which the Deputy Sheriff retained was for the trailer hitch, not for the trailerdoor. In the midst of all this activity, the Plaintiffs did not issue any written instructionsto the Sheriff beyond the Notice of Distress. The Sheriff’s involvement and the Plaintiffsexpectation was never clarified. Mr. Dover may well have viewed the Sheriff and theProthonotary as “the law”, but the Sheriff was never so informed, indemnified, andassured payment in the usual course. In these circumstances, I accept the Sheriff’sevidence that no one asked him to put on a guard or use a more secure storage location,or else he would have done so. The duty of care assumed by the Sheriff was one ofcarrying out the move properly and acting as facilitator. The Sheriff acted responsibly,and in accordance with the Tuesday instructions from the Plaintiffs and the tenant, andhe did not put the Plaintiffs’ goods in danger. The Sheriff was not a bailee, and thearrangement made amongst the claimants and the Sheriff from Monday afternoon onwarddid not make the Sheriff or the Government responsible to the Plaintiffs for the lostproperty.

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[82] I add this additional observation. Even assuming the trailer was in the possessionof the Sheriff following instructions from the landlord and tenant on Tuesday, there is stilla question whether the contents were in his possession. The evidence does not disclosethat the Deputy Sheriff or Sheriff’s Office ever had the key to the doors of the trailer, orentered the trailer. In Neil’s Trailer & Equipment Ltd. v. Butler, Maveety & MeldrumLtd., [1977] A.J. No. 545 (Alta. T.D.), the contents of a locked van delivered to a repairshop for exterior repairs were held not to have been in the care, custody, and control ofthe garage keeper when the garage burned down and the van and contents wasdestroyed. Physical possession was held to be decisive. In the present case, the Sheriffhad the key to the trailer hitch device. That is distinguishable from the question who hadthe possession – care and control, and access – of the contents.

• Decision

[83] The Plaintiffs’ claim against the Defendants is dismissed.

Damages

[84] Having found there is no Defendants’ liability, I will assess the Plaintiffs’ loss ona provisional basis.

• The Plaintiffs’ loss

[85] The lease term is five years ending June 30, 2000. Base rent was $3500 permonth, and the tenant was responsible for some additional costs. The Plaintiffsestablished arrears (six months @ $3500 = $21,000). The Plaintiffs lost rental incomeduring the remainder of the term as well. For the next five months the premises werevacant ($3500 per month for five months = $17,500). The premises were then rentedfor the next five months at $1400 per month ($3500 - $1400 = $2100 loss x five months= $10,500). From May to August 1997, the premises were not rented (four months @$3500 per month = $14,000). For September 1997 to the end of the term of the lease,Mr. Dover did not have his records in Court, but the building was used for the Plaintiffs’daycare business, based on a less than optimal rent. In addition, the Plaintiffs incurredcleanup costs of $12,000. Proceeds of sale of the cube van contents were approximately$10,000. This evidence satisfies the Plaintiffs’ submission that the Plaintiffs’ loss is atleast the amount claimed of $60,000 (i.e. $21,000 + $17,500 + $10,500 + $14,000+ $12,000 -- $10,000 =$65,000), plus lost rent during the remainder of the terms afterAugust 1997. The Plaintiffs claim is not limited by the distress provisions which wouldcover only the arrears. The Plaintiffs also had the security of the chattel mortgage whichapparently secured all the tenant’s obligations under the lease.

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• The value of the lost gym equipment

[86] Randy Cameron produced an inventory of the personal property that was putaboard the trailer on Sunday night. Assuming it was still on board when the trailer wasstolen, what was its value?

[87] Mr. Cameron testified about the value of the goods. He had some experience intrading in gym equipment. He wanted to sell the goods himself because they wouldfetch much less on a distress sale. A lot of the goods were replacement items, and quitenew. Mr. Cameron referred to a price list from the supplier’s catalogue, which he usedas a proxy for his valuation. His valuation mentioned $60,000. The aggregate of theinventory of Exhibit P-3 is $48,000. This was Mr. Cameron’s discounted price.

[88] Sheriff Driscoll testified that in distress sales proceeds are in the range of 10% ofthe appraised price. Appraisals are carried out by a justice of the peace, and not by atenant.

[89] The evidence of valuation provides some guidance, but it is thin, and not fullyreliable. There was no appraisal, and Mr. Cameron though informed was not particularlyqualified to give the opinion. A plaintiff has the onus of proving its damages. TheDefendants produced a manufacturer’s price list, but I could not draw a conclusion fromit. The information about the age and condition of the equipment indicates it was quitenew, but not more. I was not made aware of the depreciation experience with used gymequipment. I am not aware of the cost of selling used gym equipment, by distress orotherwise, but there would be a cost of sale factor.

[90] Based on all the information before me, and considering what information is notthere too, I would have put net proceeds of sale in the range of $20,000 –$30,000.

Costs

[91] There is an expectation that costs will follow the result. That general rule allowsfor costs to be waived off in appropriate circumstances. Here, although the Defendants’have successfully defended against the Plaintiffs’ claim, I consider it just to exercise mydiscretion against awarding costs. The Defendant Government and its agents are notshown to have done anything wrong, or to have incurred any liability. To the contrary,on Sunday night, the Deputy Sheriff and the Prothonotary were only trying to help outin keeping the peace. Again on Tuesday, the Sheriff’s Office was only trying to assist thelawyers and parties involved in an unusual matter. I would not wish this judgment todiscourage the Sheriff’s Office from being a helpful presence in the community. Myreason for allowing the Plaintiffs to avoid the obligation of a costs order is connected toMr. Dover’s disillusionment. I accept that he viewed the Deputy Sheriff, the

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Prothonotary, and the Police, as “the law” during the chaotic events of Sunday overnight,and the Sheriff again on Tuesday. The evidence demonstrates how reasonably he couldhave proceeded on the understanding that the public authorities were present to helphim, and that they took control of the situation. Unfortunately for him, Mr. Dover wason the wrong side of a misunderstanding. In all these circumstances I prefer not torequire the Plaintiffs to pay costs.

March 31, 2004 ___________________________________Justice David H. Jenkins