PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION. Donald Dover and Evelyn Dover

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1 Citation: Dover v. Gov of PEI et ors. Date: PESCTD 25 Docket: GSC Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Between: Donald Dover and Evelyn Dover And: Plaintiffs 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 Plaintiffs Ruth M. DeMone, for the Defendants Dates and place of trial Charlottetown, Prince Edward Island October 27, 28, 29, and 30, 2003 Date and place of decision following trial Charlottetown, Prince Edward Island March 31, 2004

2 Citation: Dover v. Gov of PEI et ors. Date: PESCTD 25 Docket: GSC Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Between: And: Donald Dover and Evelyn Dover Government of Prince Edward Island and Frank G. Driscoll and William V. Acorn Plaintiffs Defendants 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; Landlord and Tenant Act, R.S.P.E.I. 1988, Cap. L-4; CASES CONSIDERED: Neil s Trailer & Equipment Ltd. v. Butler, Maveety & Meldrum Ltd., [1977] A.J. No. 545 (Alta. T.D.). Appearances: Gregory B. Collins, for the Plaintiffs Ruth M. DeMone, for the Defendants

3 Jenkins J.: [1] The Plaintiffs claim against the Defendants for damages in the amount of approximately $60,000 plus interest. They assert that the Defendants are responsible for the loss of gym equipment that was temporarily contained in a tractor trailer that disappeared. [2] The Plaintiffs are a landlord of commercial premises at 177 St. Peters Road in Charlottetown. Their building was leased to the operator of a business called Amigo s Gym. As security for the rent, the Plaintiffs had a lease and held a chattel mortgage over the tenant s personal property. During the May holiday weekend in 1996, the tenant closed 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 trucks and ready to go. The Plaintiff, Donald Dover, involved the police, who in turn called the Deputy Sheriff, William Acorn, out of bed to the scene. The Plaintiffs and the tenant both called in their lawyers. The scene being chaotic, the City Police arranged for the Prothonotary 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 brokered some arrangement between the lawyers for the landlord and the tenant whereby the equipment would be kept in abeyance until the lawyers could have the rights of the parties determined upon a motion to a judge. This apparently satisfied everyone for the time being, and everyone soon left the scene. Issues [3] The Plaintiffs assert that the Sheriff took a tractor trailer and a cube van and their contents of gym equipment and related personal property into the Sheriff s care and responsibility on behalf of the landlord and the tenant. The Defendants refute that assertion. They submit that there was no agreement to that effect, and that the Sheriff did not become a bailee or assume any role of care or responsibility regarding the property toward anyone. [4] The first issues for determination are: What agreement, if any, was made involving the Defendants, and who were the parties to that agreement? What obligation, if any, did the Sheriff undertake toward the Plaintiffs and any other person regarding care or safe keeping of the personal property that 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 the Government parking lot in downtown Charlottetown. On Monday afternoon, the Plaintiffs lawyer delivered a Notice of Distress to Deputy Sheriff Acorn at his home. He did not require an inventory or any other attendances by the Sheriff.

4 Page: 2 [6] The following day, Tuesday, Government building personnel called the Sheriff and required that the trailer and van be moved. The Sheriff moved the trailer to the Liquor Control Commission warehouse loading area in Charlottetown ( LCC parking lot ). 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 personal property contained in the trailer that was stolen: a. If it is found that during the Sunday overnight events the Sheriff became a bailee or otherwise assumed responsibility for care and safe keeping of the goods on direction of the Prothonotary? b. If the Sheriff did not undertake any such responsibility, but the Sheriff received a Notice of Distress and was involved in moving the trailer from the Government Building parking lot to the LCC parking lot and storing it there? [8] Should the Defendants be liable for the Plaintiffs loss, then the final issue will be the amount of the Plaintiffs loss. The two factors affecting quantum are the value of the contents 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 bailee of the property or otherwise is central. The positions of the parties are opposite. The Plaintiffs assert that pursuant to agreement between the lawyers for the landlord and tenant which was announced by the Prothonotary, on the Prothonotary s direction the Sheriff took the vehicles into his safe keeping on behalf of the landlord and tenant until they could get their dispute before a judge to resolve their competing claims. The Defendants acknowledge the landlord and tenant may have made an agreement between themselves, but they deny the Sheriff was given or undertook any responsibility toward them regarding the property in the vehicles. Law of bailment [10] A bailiff or bailee is one to whom some authority, care, or guardianship, is committed. A Sheriff s deputy can be a bailee. A prerequisite to bailment is consent of the bailee. An essential element of bailment is possession of the property. Possession involves control over the property.

5 Page: 3 [11] The law distinguishes between gratuitous bailee and bailee for reward. If it is proven that the Sheriff was a bailee, then he would be a bailee for reward. The Office of 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 liable for ordinary negligence. (ii) Once it is established the property was in the bailee s possession at the time it was lost, the bailee bears the onus of proof of disproving the inference of negligence or failure to exercise care and diligence which arises from the loss. The bailee has to show the loss occurred without negligence or fault or misconduct on 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 keeping and preserving the entrusted property; in other words, reasonable care to see that the place in which the property is kept is a fit and proper place for the purpose, and should the property be stolen, to recover it. Evidence [12] The parties adduced evidence of the events and arrangements made. Most is reconcilable; some essential points are in direct conflict. In the circumstances, it is useful to 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 the police and asked them to stop the move until he could get to the site. He arrived about 2:00 a.m., with his friends Vaunda Whelan and Wayne Beaton. Deputy Sheriff Acorn arrived after him. He says both he and Mr. Acorn were inside the building. He thought the Sheriff represented the law, and was in charge. Mr. Dover spoke to Mr. Acorn about stopping 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 the open end. He called his solicitor David Larter to see what they could do about keeping the 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 they were 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 on behalf of both Messrs. Dover and Cameron, and that he, Mr. MacMillan, and the Sheriff were going to take over the situation and lock up and secure the vehicles. Deputy Sheriff

6 Page: 4 Acorn was present during that announcement. He testified that Mr. Acorn then said, I ll get my locks, and lock the vehicles., and that Mr. Acorn then proceeded to go toward the trailer for the purpose of locking it. Mr. Dover saw the trailer doors swinging, and then saw Deputy Sheriff Acorn walk back. Mr. Dover saw the tractor trailer and cube van not locked before Mr. MacMillan s statement, and locked afterwards. The locks used were not Mr. Dover s locks. [14] On cross-examination, Mr. Dover acknowledged that he stated in discovery that he thought the Deputy Sheriff had gotten the locks from his car. The Deputy Sheriff asked him if he had a way of changing the locks on the premises. The Deputy Sheriff said 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 says the Deputy Sheriff was present and was directing, I would say. When Mr. Dover left the tractor trailer was parked across the street in the parking lot. Mr. Dover left to obtain lock 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 the equipment, and it was his understanding from George MacMillan that the Sheriff was going to take the goods into his hands for security of both parties. Mr. Dover did not give any instructions to the Sheriff directly. His undertaking was that his lawyer did. Nor did 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 that to secure his position. [16] The next time Mr. Dover saw the trailer was Tuesday morning in the Government parking 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 with that. Mr. Dover provided a fifth wheel lock. Its purpose is to secure the trailer. He gave the lock to Mr. Acorn, who accepted it: That s great., and passed it along to the driver Mr. Martin who said he would put it on at the new location. The single key went to 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 the contents 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. The Sheriff s Office had advised him they had lawyer s papers claiming the Stairmasters and they 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 locked it again, and kept the key.

7 Page: 5 [19] Except for the Stairmasters, the rest of the equipment from the cube van was returned 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 that property. He applied the proceeds of $9000-$10,000 to cleanup costs and toward the arrears account. The sale was not a formal distress sale; and was not a sale pursuant to the chattel mortgage. [20] After the trailer was stolen, the Sheriff informed Mr. Dover. The Sheriff did not have a license plate number for the trailer. Mr. Dover had that information, and gave it to the Sheriff. Subsequently, Mr. Dover became upset upon learning from the Police Department that the trailer was never reported stolen. [21] The evidence does not suggest Mr. Dover ever took any steps to seize and sell the Amigo s Gym property under the chattel mortgage. Mr. Dover sued the tenant; but it became clear that endeavour would produce no return. He then commenced this action against the Sheriff and the Province. [22] David Larter was the Plaintiffs lawyer. At Donald Dover s request, he attended on the scene. He arrived between 2:00 and 2:30 a.m. He observed the scene, then went to his office, and returned. He saw Mr. Cameron s lawyer Mr. Hennessey and Deputy Sheriff Acorn outside the building. Mr. Hennessey went inside; Messrs. Larter and Dover did not. He and Mr. Dover were adamant the vehicles not leave the premises. After Mr. MacMillan became involved, Messrs. Larter, Hennessey, and MacMillan spoke together. Mr. Acorn may have participated peripherally. In the end, between 4:30 and 5:00 a.m., Mr. MacMillan stated or suggested the matter would not be resolved there, and the Sheriff would take possession of the tractor trailer and the cube van. That met with approval. Mr. Acorn was present for that. Mr. Larter reiterated the arrangement: He and Mr. Dover were adamant the property was not going to leave the premises, and the Sheriff was going to take the personal property into his possession. When Mr. MacMillan mentioned possession, there was no discussion or agreement of any authority therefor. For Mr. Larter, once the Plaintiffs knew the personal property was seized, authority was not in issue for him and Mr. Dover. There was no agreement as to where the property was going, and Messrs. Dover and Cameron were not involved in that decision. Mr. Larter did not recall any specific discussion between 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 before a judge. Mr. Larter prepared distress documentation and delivered it to the Sheriff on Monday afternoon. He did not issue any further instructions to the Sheriff, in confirmation of the events, agreement and terms of bailment, or under the chattel mortgage at all.

8 Page: 6 [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 chattel mortgage which covered everything and anything. Rent was usually in arrears, and arrears 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 out his 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 had consulted legal counsel on the matter. [25] At the scene, the police arrived first, and Mr. Dover arrived an hour to an hour and a half later. When Mr. Dover arrived, he was upset, and he wanted the moving activity to stop. It continued on. Mr. Cameron testified that the tractor trailer had received on board gym equipment the larger, heavier equipment, plus weights, cardiobikes, 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 described the scene as pretty chaotic, with all kinds of discussion going on, and no one having any idea of what was to be done. Mr. Cameron directed the half-ton truck and cube van be driven away. Once George MacMillan became involved, Mr. Cameron observed a gathering in a circle. Mr. Cameron spoke with Mr. MacMillan. He testified that in the discussion in the circle, Mr. MacMillan advised that until things were sorted out, the goods would be held in the Province s custody, I guess. He believed Mr. MacMillan took 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 items would 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 felt the 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 place any locks. [26] Mr. Cameron does not recall receiving any document from anyone to terminate the lease. His business declared bankruptcy in [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. She remained in Mr. Dover s vehicle and observed. Upon arrival, she observed a busy scene. William Acorn arrived after the first police arrived, and before the lawyers. She observed 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 with the moving activity. Later on, after Mr. Larter and Mr. Dover had gone to Mr. Larter s office for some information and returned about 45 minutes later, Ms. Whelan observed Mr. MacMillan being present and appearing to bring calm and order to the situation, and

9 Page: 7 further caucusing occurring among the lawyers and Mr. MacMillan. The Deputy Sheriff was 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 across the street in the Wackey Wheatley store parking lot. Overall, Ms. Whelan did not see or 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 also accompanied 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 feet away from the moving activity. Before Mr. MacMillan arrived, two loaded vehicles, a half-ton truck and the cube van, departed quickly out St. Peters Road. After Mr. MacMillan s arrival, there was some order on the scene. Mr. Beaton observed Messrs. MacMillan and Acorn conversing. He picked up only bits of their exchange some gestures, and conversation about the matter not being settled 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 moved across the street. Mr. Beaton went into the building while Mr. Dover secured it. He did not observe the Sheriff taking any particular initiative accepting or giving any identifiable 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 to Amigo s Gym. It was a Sunday rental for a Monday return. When it did not come back on time, his principal Barry Balderson drove it back, with the contents still on board. It remained that way until Deputy Sheriff Acorn appeared on Wednesday, and wanted to see inside. No one had a key. On instructions of the Deputy Sheriff Acorn, Mr. Buell broke the lock. Deputy Sheriff Acorn entered the van and appeared to take some form of inventory. Mr. Dover arrived during this exercise. Mr. Acorn then applied a Sheriff s lock 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 understood that 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 his involvement. His notes advise he arrived about 4:40 a.m.; though he would have thought it was more like 3:00 a.m. He responded from bed to a nighttime call from City Police. 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 did not do anything that he would need papers to act, and had none.

10 Page: 8 [31] When Mr. Acorn arrived at the scene, the gym was cleaned out, and the moving had ceased. Mr. Acorn recalled the lawyers Larter and Hennessey being present, and George MacMillan arriving later, at about 5:30 a.m. Before Mr. MacMillan arrived, no one knew what to do, and Cpl. Quinn of City Police suggested the Prothonotary be brought 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 as mentioned by other witnesses plus police lights flashing. He considered it a theft in the night 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 bringing matters under control. Mr. Acorn was not in or about that meeting. Those meeting were inside in an office, and Mr. Acorn was not indoors beyond the entrance. Mr. MacMillan made an announcement that the differences would not be resolved tonight, and of the agreement. He does not recall that the Sheriff was to take control. He observed a total lack of trust between the parties. His understanding when he left was that he had no role, that the lawyers for the parties had agreed there was a dispute over ownership that they would bring before a judge on Tuesday. He said he then went home and back to bed. He acknowledged the suggestion in cross-examination that he may have agreed to look 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 to sign a Distress Notice. No request was made for an inventory, as the goods were already gone from the premises and in the trucks. [33] On behalf of the Sheriff s Office, Mr. Acorn billed $87 based on $40 per hour for two hours in the parking lot. He billed Mr. Larter because he was the one who came with distress papers the next day. [34] On Tuesday morning, Mr. Acorn informed the Sheriff about his activity Sunday overnight. [35] Later on Tuesday, on Sheriff s instructions Mr. Acorn participated in the move of the trailer from the Provincial Government parking lot to the LCC parking lot. He obtained the driving service of David Martin, received the locking device from Donald Dover, asked Mr. Martin to install the collar, and followed the move. He does not recall whether 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. Though normally 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 on Wednesday at Atlantic Rentals. He acted on Gould Leasing instructions to the Sheriff

11 Page: 9 regarding the Stairmasters. On further Sheriff s instructions, he followed the removal of all 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 advised him the trailer had been removed. [38] George MacMillan was the Prothonotary of the Supreme Court. He included in his own multifaceted job description working with and sometimes advising the Sheriff s Office and mediation in various forums. [39] On the Sunday overnight, Cpl. Quinn called him out to the scene at about 3:00 a.m. Once at the scene, he observed the tractor trailer backed up to the building, a lot of people milling about, police, and Messrs. Larter, Hennessey, and Acorn. He was there for an hour to an hour and a half, during which time he participated in discussions. Up until 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 police had been called, and Mr. MacMillan had been called to help the police sort out the matter. Mr. MacMillan discussed the matter with the police, Messrs. Hennessey and Larter in a pitcher s mound setting in the parking lot. Mr. Acorn was at the scene, but he 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 the Court and judge s ruling. Mr. MacMillan did not recall any decision about the Sheriff or the Sheriff taking custody of the goods. He stated that he did not direct the Sheriff to look after the trailer, this being a private dispute between two citizens, the landlord and tenant. 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 Driscoll about moving the trailer from the Government parking lot. Mr. MacMillan did not say anything, though the move made sense to him as he wondered why the trailer was there in the first place. [42] Mr. MacMillan knows the parties. He was not discovered. He recalls Mr. Dover came to him as Prothonotary a few times, pleading for assistance. [43] Cross-examination of Mr. MacMillan involved a protracted point of contention about credibility following a pre-trial conversation between counsel and him. Shortly before trial, Plaintiffs counsel contacted Mr. MacMillan and introduced discussion about the 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 Sheriff was taking care of the goods. At that time, Mr. MacMillan qualified his responses as

12 Page: 10 being without having thought about it and subject to further recollection, checking, and firming up. Plaintiffs counsel issued a confirmation to the effect that the Sheriff was indeed taking care of the goods. Mr. MacMillan objected to such a conclusion, on the basis that he did not know that, having had nothing to do with that. Mr. MacMillan reiterated and reinforced the particulars of his involvement. It was good enough for him that both lawyers agreed that their clients would not touch the goods. It was not a solution imposed by him, as a representative of the Court. He does not recall how the vehicles came to be locked, or who moved them. He assumed there was no distress because there was no papers. Overall, there was no court process, or government process; it was a dispute between two lawyers. He would only have announced it that way. In his view, the lawyers had control over their clients. Mr. MacMillan emphatically reiterated that the Sheriff had no papers and no status on the scene that night, and that he did not instruct the Sheriff to take control of the vehicles or move them to the Government parking lot. [44] The existence of the Plaintiffs chattel mortgage security was never mentioned to Mr. MacMillan. [45] Frank Driscoll is the Sheriff. He is responsible for Sheriff s Services across the Province, 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. The Sheriff s Office provides a full range of services. One of the various functions of the Sheriff s services is repossession of property under security instruments; another is proceedings under the Landlord and Tenant Act. This is done on instructions from the secured creditors and landlords respectively. The usual practice and level of responsibility varies, but usually includes prepared instructions, and sometimes involves movers and warehousing. No such instructions were received in the present case, except the Notice of Distress. [46] Sheriff Driscoll s first knowledge of the events in issue was first thing Tuesday morning, when Mr. Acorn informed him about the Sunday overnight activity. From this briefing, Sheriff Driscoll obtained the understanding that Mr. Acorn had received no documentation, had no authority to do anything, undertook no responsibility, and was present 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 that there was agreement between the parties that the van and trailer be moved off the site to a neutral location; and no action was needed from the Sheriff. Mr. Acorn had not been involved in moving the trucks.

13 Page: 11 [48] Regarding Monday, Sheriff Driscoll was informed by Mr. Acorn that Mr. Larter had asked him to sign a Notice of Distress, but that there was no further documentation received. That was no a concern for the Sheriff because he understood the parties were operating under their agreement from the previous night. [49] Sheriff Driscoll was centrally involved in the Tuesday morning trailer move. He first received a call from John Bruce, the Government s Manager of Operations, who wanted his parking spaces vacated. Mr. Bruce thought the Sheriff might know something about 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 think that the Sheriff had possession. Instructions were received from the parties or their lawyers to move the trailer and the van. There being no tractor, the Sheriff asked Deputy Sheriff Acorn to make that arrangement, which he did. The Sheriff and Deputy Sheriff Acorn were to have the driver send his bill directly to David Larter. [50] On Wednesday, Barbara Smith, a Charlottetown solicitor on behalf of Gould Leasing contacted the Sheriff and gave instructions for a process for possession of the Stairmasters under a lease. The Sheriff obtained permission from the parties or their lawyers 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 Sheriff immediately called City Police, Mr. Dover, Mr. Larter, and Mr. Hennessey. The Sheriff then spoke with Mr. Cameron s lawyer Mr. Hennessey who then intimated to him that Mr. Cameron would accordingly have no further interest in the agreement or the Sheriff s involvement. [52] Sheriff Driscoll was asked to characterize the relationship of the Sheriff s Office with the parties in legal terms. It is his position that the Sheriff s Office never acted as agent for the Plaintiffs. In his undertaking, the agreement was between the lawyers. On the Sunday night, the Deputy Sheriff Acorn was present at the request of the Police, took no action or responsibility, and billed $87 for his attendance. He noted there was no indemnification provided as would usually occur on taking goods for a party. It would also not be in the usual course to seize property or act toward property on instructions from the Prothonotary, although there is flexibility and cooperation, and it has happened before. This time, both the Prothonotary and the Deputy Sheriff had advised the Sheriff there was no such instructions. The Sheriff stated there was never any instructions from the Plaintiffs under the chattel mortgage, and that Mr. Larter handed him the distress documents only on Tuesday. This was not normal procedure there was no advance notice, the goods were already gone from the premises, and no Sheriff s inventory was sought. A distress process does direct the Sheriff s Office to be agent. When the Sheriff s Office moved the trailer to the LCC parking lot, he was not acting as an agent for the

14 Page: 12 Plaintiff he was expediting, helping out, acting as a peace officer, trying to keep the peace he accepted that he could then be viewed as agent for all the parties claiming the property, which he distinguished from being agent for the Plaintiffs only. The Sheriff s Office involvement on Tuesday was on the assumption that no obligations had been incurred on Sunday night. All he had was the Distress Warrant. George MacMillan gave no instructions on Tuesday, and did not offer to cover any cost of storage. Neither of the claimants or their lawyers asked for a guard, or the Sheriff would have placed a guard. It was their arrangement, not the Sheriff s, until the lawyers could get before a judge. This was not a normal situation. The Sheriff s Office never billed for the relocation service provided on Tuesday. [53] David Martin is a tractor trailer driver. On the Tuesday, he acted on a request from Mr. Acorn. He moved the trailer from the Government parking lot to the LCC parking lot. He received the trailer locking device from Mr. Acorn, and he installed it after the move. As he recalls, Mr. Acorn said he would look after payment, but payment was never made. Deliberation and decision [54] Whatever the Defendants Driscoll and Acorn did, they did it in their capacity as Sheriffs. That is what they said in their testimony. It is also consistent with the Sheriffs Act, R.S.P.E.I. 1988, Cap. S-4.1. This Act creates the Office of Sheriff, stipulates that appointments 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 a complete accounting of fees. The Sheriffs Act prohibits sheriffs from freelancing demanding or receiving a fee, or preforming any duty in a personal capacity that could be preformed in his official capacity. There is no statutory provision expressing immunity from liability. [55] Should it be held that the individual Defendants are liable to the Plaintiffs, then it would seem to logically follow that the Defendant Government would be the party called upon for payment. The Defendants Driscoll and Acorn having acted within their capacity as Sheriffs, the Government would be vicariously liable for the damages resulting from their acts, and responsible to save them harmless. The Government s ultimate 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 the Plaintiffs during the site activity Sunday overnight. This conclusion follows from two separate theories.

15 Page: 13 [57] First, it has not been proven that there was any agreement between the Plaintiffs and the Deputy Sheriff because the required consensus ad idem was not present. There was no meeting of the minds. Accepting that Messrs. Dover, Larter, and Cameron heard what they said they heard, it remains that William Acorn said he received no instructions and did nothing and George MacMillan said he gave no instructions to Mr. Acorn. I accept their evidence, though it stands uncontradicted on the essential point of instructions to the Deputy Sheriff. Donald Dover observed Mr. Acorn s activity, but did not instruct Mr. Acorn; he relied on his lawyer. Mr. Larter did not instruct Mr. Acorn that night, nor did he ever confirm any instructions afterwards. [58] The only Plaintiffs witness whose testimony extended to saying Mr. MacMillan actually 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 or give any direction to anyone. Credibility comes into play. Whether this evidence be his fair recollection or an extension, given the record of Mr. Cameron s other participation in events his deceit toward Mr. Dover, his unilateral removal of two loaded vehicles in the face of direction to the contrary by public authorities, his lack of performance under 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 evidence of Mr. Acorn. [59] Instructions are a crucial link for the existence agreement. Without an assignment being issued to the Deputy Sheriff and accepted by him, there was no bailment or other acceptance of custody, safekeeping, or associated Sheriff responsibility. [60] Second, upon considering and applying the onus and standard of proof for civil trials to the evidence, I am not satisfied that an agreement for bailment or other duty of responsibility is proven. This is a case where weighing the evidence is in play. Some important evidence is in conflict. The onus is on the Plaintiffs to prove their assertion of a contract of bailment as the basis for Defendants liability. I accept the evidence of Messrs. 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 any initiatives on behalf of the Plaintiffs. The Prothonotary, Mr. MacMillan s evidence corroborated that position. He testified that he did not instruct the Deputy Sheriff to do anything. I also accept the evidence of the Plaintiffs witnesses. Mr. Larter may well have obtained the understanding of which he testified, and conveyed this to Mr. Dover. The evidence of Randy Cameron corroborates that view. However, the Plaintiffs evidence does not amount to the weight of the Defendants evidence on the essential points. Impressions and understandings from an ad hoc caucus held in the midst of a chaotic scene are not sufficient to outweigh an express denial of any agreement for

16 Page: 14 Sheriff involvement coupled with a clear statement that no instructions were given and a recollection that no instructions were received. [61] It is noteworthy that other people whom one would expect would have vital information about any agreement made and instructions given were not called as witnesses. Mr. Cameron s lawyer, John Hennessey, Q.C. was present throughout and was said 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 Provincial Government parking lot? I am not making negative inferences on this account. But it remains that whatever evidence those persons may have provided is not available to point toward Defendants involvement as alleged by the Plaintiffs. [62] In this assessment, I have borne in mind the challenges by counsel to the reliability of evidence of Mr. Acorn related to his weakened recollection, of Mr. Dover due to his excited state at the scene, and to both of those parties related to their previous statements on examination for discovery. [63] I find that Deputy Sheriff Acorn was called to the premises during the early morning 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 received any particular instructions from either George MacMillan or the solicitors of the landlord and tenant. Deputy Sheriff Acorn did not see the contents of the vehicles. He did not seize the tractor trailer, cube van, and their contents, and he did not take that property into his possession, or into his custody on behalf of anyone. It is not proven that he supervised the movement of the vehicles to the Government parking lot or their temporary storage at that location. Only afterwards did the Office of the Sheriff become aware of the off-site location of the goods at the Government parking lot. Never was there 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 any written instructions issued by the Plaintiffs lawyer to the Sheriff s Office. Given the evidence of usual practice, written instructions during business hours following the chaotic events of Sunday overnight could be expected. Written confirmation would in any event have made the Sheriff aware of whatever the Plaintiffs expectations and reliance were while the trailer was still at the Provincial Government parking lot. Two business days passed before the trailer disappeared. [65] The curiosity of why the Sheriff became involved on Tuesday is satisfied by Sheriff Driscoll s testimony, which advises that Mr. Bruce from Public Works called him with the thought the Sheriff might know something about it.

17 Page: 15 [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 the goods, or responsibility for their safekeeping. Curiosity is raised as to how the Government parking lot site was chosen, and how the vehicles were moved to that location; but the evidence does not advise the Deputy Sheriff directed the move or moved 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 served William 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 personal property. 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 by the 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 clandestinely removed goods, a landlord can distrain against a tenant s personal property that is or was situate in the premises between 8 a.m. and 5 p.m. within 30 days following removal of the property. [70] In this case, a clandestine removal at night was underway, the landlord and tenant agreed the goods would be held over until their respective rights were decided, and the distress paperwork was subsequently served during the permitted hours. Goods that belonged to another person, Gould Leasing, were subsequently released. Upon receiving 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 tenant when the landlord became involved. [71] Donald Dover sold the goods remaining in the cube van after release of the Stairmasters. There is no complaint before the Court about him not having followed prescribed process on sale of those goods. The Plaintiff applied part of the proceeds of sale against the arrears, leaving only the difference of arrears remaining subject to the landlord s distress. Regarding that difference, the Defendant cannot benefit from any deficiencies in the landlord s distress process. The Plaintiff had pursued distress, and there is no indication the tenant had raised any problem with the distress process. The Plaintiff also had the security of a chattel mortgage over the goods upon which it could fall back upon should the distress have been ineffective or fallen short.

18 Page: 16 The Tuesday move [72] Regarding the movement of the trailer from the Government parking lot to the LCC parking lot, I find these facts. After the holiday weekend, first thing after start of Government hours, a Government official, John Bruce, complained to Sheriff Acorn that the trailer was blocking parking spaces in the Government parking lot. Sheriff Driscoll contacted Mr. Dover, Mr. Hennessey, and left a message for Mr. Larter. The landlord and tenant or their representatives gave permission to move the trailer to the LCC parking lot and for the cube van be returned to Atlantic Rentals. Deputy Sheriff Acorn arranged for 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 the trailer and installed the device, and Deputy Sheriff Acorn followed the move and then held the key. Wednesday with the cube van [73] The Sheriff had further involvement on Wednesday. Deputy Sheriff Acorn returned the cube van to Atlantic Rentals, and he participated in the release of its contents to the other claimant and to the Plaintiffs. The evidence is quite clear about how these relationships and resulting responsibility came into being. [74] The Sheriff acted on written instructions from a solicitor for Gould Leasing to take possession 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 contents to Mr. Dover. This was all done with appropriate direction and involvement of the owner of the cube van and Mr. Dover. No liability results from this activity. It does though provide some context for the Sheriff s involvement and the relationship between the Sheriff and the Plaintiffs. Liability regarding the stolen trailer [75] On Thursday May 23 rd, upon being informed the trailer was gone, the Sheriff notified Messrs. Dover, Larter and Hennessey, and the Police. [76] The classification of the Sheriff s involvement with the trailer and contents from Tuesday, May 21 st onward until it disappeared is a different matter. The Sheriff was involved. On Tuesday, the Sheriff s Office made an arrangement with the interested parties, then moved the trailer to the LCC parking lot, and then held the key for the hitch locking device. On Monday, the Deputy Sheriff had received a Notice of Distress, although no further instructions.

19 Page: 17 [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 of the trailer. [78] Upon considering all the evidence, I conclude that (i) the Sheriff did not become a 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 is no basis for liability. [79] By the time the trailer disappeared, Mr. Dover had involved the Sheriff in the distress process, in the move of the trailer, in holding the key for the hitch lock, the Sheriff 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 contents back to the premises. During this time, Mr. Dover and the Sheriff were operating with different understandings of the underlying relationship. In my assessment, the weight of the evidence does not show the Sheriff became bailee, or assumed possession or custody by any other involvement. [80] On Monday, when distress papers were delivered, no inventory was required, and no instructions were provided for storage, safekeeping, indemnification, or payment. [81] On Tuesday, the Sheriff was centrally involved in the move. I accept his evidence that the landlord and tenant or their lawyers took up the suggestion that originated with Mr. Bruce to try the LCC parking lot alternative. The Plaintiffs did not ask or instruct the Sheriff to take possession or to be responsible for safekeeping of the trailer and its contents. 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 trailer door. In the midst of all this activity, the Plaintiffs did not issue any written instructions to the Sheriff beyond the Notice of Distress. The Sheriff s involvement and the Plaintiffs expectation was never clarified. Mr. Dover may well have viewed the Sheriff and the Prothonotary as the law, but the Sheriff was never so informed, indemnified, and assured payment in the usual course. In these circumstances, I accept the Sheriff s evidence 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 of carrying 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, and he did not put the Plaintiffs goods in danger. The Sheriff was not a bailee, and the arrangement made amongst the claimants and the Sheriff from Monday afternoon onward did not make the Sheriff or the Government responsible to the Plaintiffs for the lost property.