Intentional interference with chattels, also known as wrongful interference with goods, encompasses several distinct common law actions. Specifically, it encompasses trespass to chattels, conversion (also called trover), detinue, as well as several other actions which "fill in gaps" left by these actions.[1]
Each of these actions deals with different ways in which plaintiffs are deprived of their "things" due to the intentional actions of the defendant.[2] Intentional in this context simply means that the defendant intended the act that caused the interference—not that the defendant "'intended' to interfere with a person's rights of ownership or possession."[2]
Several remedies distinctly respond to intentional interference with chattels, namely detinue, replevin, recaption, as well as some specific considerations regarding damages.[3]
Trespass to chattels
The common law action of trespass to chattels is a tort actionable without proof of damage that "provides a remedy where a person wrongfully takes or damages another’s property."[1]
Elements of trespass to chattels
The British Columbia Court of Appeal, in North King Lodge Ltd. v. Gowlland Towing Ltd., stated that, “[a] trespass occurs when there is any direct, intentional interference with a person’s possession of a chattel without that person’s consent.”[4]
3. [W]ith the plaintiff’s possession of a chattel; and
4. [W]ithout the plaintiff’s consent.
In the news
Apple & trespass to chattels
In 2017, following Apple's acknowledgement that they slowed down older iPhones, several class actions were launched,[5] one of which alleged that, by slowing down iPhones, Apple had committed trespass to chattels.[6]
Direct
An example of a direct trespass is feeding a horse poisoned oats which causes sickness.[7] Another example of direct interference arose in Wilson v. New Brighton Panelbeaters Ltd., where a towing company was found liable in trespass for towing away the plaintiff's car at the request of someone who was not the plaintiff, unbeknownst to the towing company.[8]
Conversely, where someone "comes into possession of another’s goods innocently and without being the original taker ... there is no direct interference."[9] That said, direct interference can be made out even if the defendant did not make contact with the goods.[10]
Intentional interference
Intentional in this context simply means that the defendant intended the act that caused the harm—not that the defendant "'intended' to interfere with a person's rights of ownership or possession."[2]
Person's possession of a chattel
The trespass action protects possessory, not ownership, rights.[11] This "action is available only to the possessor. An owner who has given possession to someone else may not recover damages for the trespass."[12]
Without consent or permission
Although courts frequently include the phrases "without lawful justification" or "without consent" in defining the elements of trespass to goods,[4][11][13] in Canada consent is better understood as a defence for which the defendant bears the burden of proof.[14] That is consistent with the tort of trespass to land, where consent and lawful justification operate as defences, though judges will sometimes refer to absence of the plaintiff's consent in describing the tort.[15]
Available remedy
Following a successful action in trespass to chattels, the assessment of damages can depend on whether or not the goods are recoverable.[10] If the goods are not recoverable, damages are based on the value of goods, and if the goods are "recovered, damages compensate for the loss caused by the trespass."[10]
Conversion (trover)
Conversion, or trover, is a distinct cause of action that "provides a remedy where property is destroyed, or wrongfully 'converted,' to the use of another."[1] It entails not just interference with a possessory interest in property, but denying or negating the plaintiff's title in their property.
Elements of conversion
The British Columbia Supreme Court in Robertson v. Stang set out the elements of conversion as follows:
3. [C]onsisting of handling, disposing or destruction of the chattel; and
4. [I]ntention or effect of denying or negating the title of another person to such chattel.
Armory v. Delamirie summarized
This Quimbee video provides a summary of the case.[17]
Wrongful act
The first element—a wrongful act—may also be framed as asking "whether or not the plaintiff consented to the removal of [their] goods" or as asking if there was lawful justification.[18][19] Beyond assessing if the plaintiff consented, the court may also consider if there were any circumstances which vitiated consent.[20] Moreover, it is important to clarify that just because one had honest intent when taking the goods does not make the act lawful or amount to lawful justification.[21]
Involving a chattel
The typical types of goods covered by conversion are "tangible personal property." These encompass items such as jewellery and clothing, as well as documents that evidence rights such as documents of title and insurance.[22][23] Conversion does not extend to fixtures being removed from land.[24] It is still quite unsettled whether intangible property can be the subject of a conversion claim.[25][26]
Handling, disposing, or destruction
The element of handling, disposing, or destruction allows for a broad range of behaviours to lead to liability in conversion. Some examples where liability has been found include: handing off a towed vehicle to another individual in return for a towing fee[27] and attempting to keep stones brought in to a jewellers despite the plaintiff requesting they be returned.[22]
Intention or effect of denying or negating the title of another person
Finally, the defendant must have had the intention or effect of interfering with the plaintiff's title. One such example is found in Wilson v. New Brighton Panelbeaters Ltd, where the court found that the defendant “undoubtedly committed conversion by handing the car to Walters in return for the towing fee of $40”.[27] This provides a useful clarification of what intention means in this context, as despite the defendants not knowing that Walters' request to tow had been part of a hoax, the tort was still made out. The court further clarified this point, saying that “[the requisite intent] is present whenever the actor deliberately uses or otherwise interferes with a chattel, without so much as an inkling that this happens to be violating someone else’s possessory rights.”[28]
Conversely, this element was not made out in Robertson v. Stang when the defendant moved the plaintiff’s belongings to a storage unit because this was done “to eliminate a fire hazard and…to measure the plaintiff’s apartment.”[29] Moreover, the plaintiff's ongoing access to her belongings and the notices sent to the plaintiff requesting removal from the storage area further showed that the defendants actions were “inconsistent with an intention on the part of the defendants to interfere with the plaintiff’s title.”[30]
The person in question does not need to be the owner.[31] In fact, in Armory v. Delamirie, the court found that a “finder”, in that case a chimney sweeper’s boy who found a jewel, had a sufficient interest to maintain an action in conversion.[22]
Available remedy
Subject to exceptions now recognized under the law, "at common law, the wrongdoer was liable to pay damages measured as the value of the goods at the date of conversion."[31]
Detinue
Detinue "provides a remedy where a person wrongfully refuses a request to return property."[1]
Elements of detinue
The British Columbia Supreme Court in Neill v. Vancouver Police Department described detinue as "any improper retention of goods" and set out the elements as follows:[32]
1. "[T]he property is specific personal property";
2. "[T]he plaintiff has a possessory interest in the property"; and
3. "[T]he defendant has refused to return the propery"
Specific personal property
The first element entails that the property be specific personal property, as opposed to "an ordinary article in commerce" that is readily substitutable. That is because damages are generally the appropriate remedy for ordinary substitutable articles, as opposed to an order to return a specific item held by the defendant which is the purview of the action in detinue.[33]
Possessory interest
The second element requires that the "plaintiff has a possessory interest" that is superior to any interest of the defendant. As with trespass to chattels, the plaintiff does not necessarily need to be the owner of the goods to be successful in an action in detinue.[12][32]
Refused to return
Finally, in order for there to be an action in detinue, the plaintiff must typically have made a demand for the return of goods, and the defendant must have refused to comply, or there must be clear evidence that the defendant would have refused had a demand been made.[34]
Available remedies
Where a plaintiff is successful in proving an action in detinue, the court has three remedies available:[33]
Value of the chattel as assessed anddamages for its detention
Return of the chattel or recovery of its value as assessed anddamages for its detention
Return of the chattel anddamages for its detention
The first remedy "is appropriate where the chattel is an ordinary article in commerce, for the court will not normally order specific restitution in such a case, where damages are an adequate remedy."[33] In previous cases, wheat has been considered to be a ordinary article of commerce while an electric typewriter and money have been considered specific personal property, recoverable in detinue.[35][36][37] Importantly, it is only an action in detinue that "allows a court to order a return of property."[38]
Difference between conversion and detinue
Diplock LJ in General & Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd, stated the following in distinguishing these two causes of action:[39]
There are important distinctions between a cause of action in conversion and a cause of action in detinue. The former is a single wrongful act and the cause of action accrues at the date of the conversion; the latter is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods’ and continues until delivery up of the goods or judgment in the action for detinue. It is important to keep this distinction clear, for confusion sometimes arises from the historical derivation of the action of conversion from detinue sur bailment and detinue sur trover; of which one result is that the same facts may constitute both detinue and conversion. Demand for delivery up of the chattel was an essential requirement of an action in detinue and detinue lay only when at the time of the demand for delivery up of the chattel made by the person entitled to possession the defendant was either in actual possession of it or was estopped from denying that he was still in possession.
Replevin
"Replevin is a remedy which permits the speedy recovery of personal property that is wrongfully withheld from a person entitled to possession."[40] This is to say that through replevin, "a person who claims personal property that is in the possession of another may, in a summary way, obtain possession for himself without a formal adjudication of his right thereto."[40]
However, the exact operation of replevin depends on jurisdiction. For example, in Alberta "final orders for return of property based upon an application in replevin are still available".[41] Conversely, in British Columbia, "replevin is an interim order only for the recovery of property," and "final order for the return of specific property must be framed in detinue".[42]
Replevin statutes in Canada
In a number of Canadian provinces, there are statutes which govern replevin. These statutes include:
6.48 This Division applies to an application in an action
(a) for the recovery of personal property in which the applicant claims that the property was unlawfully taken or is unlawfully detained, and
(b) in which the applicant seeks to repossess the personal property in issue immediately, pending determination of the action described in clause (a).
Application for replevin order
6.49(1) A party may apply to the Court for a replevin order without serving notice of the application on any other party unless the Court otherwise orders.
(2) The application for a replevin order must include in the application an undertaking
(a) to conclude the action for recovery of the personal property without delay,
(b) to return the personal property to the respondent if ordered to do so, and
(c) to pay damages, costs and expenses sustained by the respondent as a result of the replevin order if the applicant is not successful in the action for recovery of the personal property and the Court so orders.
(3) The application for a replevin order must be supported by an affidavit that
(a) sets out the facts respecting the wrongful taking or detention of the personal property,
(b) contains a clear and specific description of the personal property and its value, and
(c) describes the applicant’s ownership or entitlement to lawful possession of the personal property.
Replevin order
6.50(1) A replevin order must
(a) include a clear and specific description of the personal property to be repossessed,
(b) impose on the applicant the following duties:
(i) to conclude the action for recovery of the personal property without delay, and
(ii) to return the personal property to the respondent if ordered to do so,
(c) include a requirement to pay damages, costs and expenses sustained by the respondent as a result of the replevin order if the applicant is not successful in the action for recovery of the personal property and if the Court so orders, and
(d) require the applicant to provide, to the person from whom the personal property is to be repossessed, security in a form satisfactory to the Court, which may include, without limitation, a bond, a letter of undertaking or payment into Court.
(2) A replevin order may also include either or both of the following:
(a) an order to a civil enforcement agency to make a report on its enforcement or attempted enforcement of the replevin order;
(b) the value of the personal property.
(3) If the replevin order is made without notice to the respondent, the Court must specify a date, not more than 20 days after the date the order is granted, on which the order will expire.
(4) The applicant must file an affidavit or other evidence that the order requiring security has been complied with.
(5) The replevin order is not effective until the affidavit or evidence of the security has been filed and the affidavit or evidence has been served on
(a) the respondent, and
(b) a civil enforcement agency.
Enforcement of replevin order
6.51(1) Only a civil enforcement agency has authority to enforce a replevin order.
(2) A civil enforcement agency must take possession of personal property that is the subject of the replevin order in accordance with the order and, as soon as practicable, must serve notice on the applicant.
(3) Unless the Court otherwise orders, if an order for possession of the personal property to be given to the applicant is not made within one month after the civil enforcement agency serves notice of taking possession of it, the civil enforcement agency must return the personal property to the respondent.
Respondent may apply for remedy
6.52 If the respondent did not receive notice of the application for a replevin order, or in any other circumstance with the Court’s prior permission, the respondent may apply to the Court for an order
(a) to discharge or amend the replevin order,
(b) to stay the application for a replevin order,
(c) to return, keep safe or sell the personal property or any part of it, or
(d) for any other remedy relating to the personal property.
Expiry of replevin order
6.53 A replevin order
(a) obtained without notice to the respondent, expires in accordance with its terms unless it is extended by the Court, or
(b) obtained after notice of the application for the replevin order was served on the respondent, expires on the earlier of
(i) the dismissal of the action, and
(ii) 2 months after the date on which judgment in favour of the applicant is entered.
(1) In an action for the recovery of specific property, other than land, the court may, if it considers it just and on any terms as to security or otherwise it considers just, order the person from whom recovery of the property is claimed to surrender it to the claimant pending the outcome of the action.
(2) If an order is made under subsection (1) and the action is dismissed,
(a) the claimant must
(i) return the property to the person who surrendered it, and
(ii) compensate that person for any loss suffered or damage sustained by that person because of that person’s surrender of the property or compliance with another order respecting the property, and
(b) the court may order that any security provided by or on behalf of the claimant under subsection (1) be applied in payment of the compensation for loss or damage.
59(1) Where, in an action in which the recovery of possession of personal property is claimed, it is alleged that the property,
(a) was unlawfully taken from the plaintiff; or
(b) is unlawfully detained by the defendant,
the court may, on motion, make an interim order for recovery of possession of the property.
Damages if order set aside
59(2) A person who obtains possession of personal property by obtaining or setting aside an interim order under subsection (1) is liable for damages, if any, that, as a result of obtaining or setting aside the interim order, are suffered by the person who is found entitled to possession of the property.
Recovery of damages
59(3) Liability for damages under subsection (2) and the amount of the damages may be determined in the proceeding in which the interim order under subsection (1) is made.
Forcible entry of dwelling by sheriff
59(4) Where property is recoverable under an interim order made under subsection (1) and there are reasonable grounds to believe that the property is secured or concealed in a dwelling house, building or other enclosure of the defendant or of a person holding the property for the defendant, the sheriff may, at the door of the dwelling house, building, or enclosure, publicly demand delivery of the property and if the property is not delivered as demanded, the sheriff may enter the dwelling house, building or enclosure and, if necessary, may break open the dwelling house, building or enclosure for the purpose of recovering the property.
Search of person and premises by sheriff
59(5) Where property is recoverable under an interim order made under subsection (1) and there are reasonable grounds to believe that the property is concealed on the person or premises of the defendant or other person holding the property for the defendant, the sheriff may demand delivery of the property from the defendant or other person and if delivery is neglected or refused, the sheriff may search and examine the person or premises of the defendant or other person for the purpose of recovering the property.
Property not recoverable
59(6) Property in the possession of a sheriff or other officer of the court is not recoverable under this section.
(1) An interim order for the recovery of personal property may be obtained on a motion by the plaintiff supported by affidavit containing
(a) a sufficient description of the property sought to be recovered to render it readily identifiable,
(b) the value of the property sought to be recovered,
(c) a statement that the plaintiff is the owner or lawfully entitled to possession of the property, as may be,
(d) a statement that the property was unlawfully taken from the possession of the plaintiff or is unlawfully detained by the defendant, as may be, and
(e) the facts and circumstances giving rise to the unlawful taking or unlawful detention.
(2) Notice of a motion under paragraph (1) shall be served on the defendant unless the court is satisfied that
(a) the property was unlawfully taken from the plaintiff,
(b) there is reason to believe that the defendant may attempt to prevent recovery of the property, or
(c) for any other reason, the order should be made without notice.
44.02 Interim Order
An interim order for the recovery of personal property shall contain a description of the property to be recovered sufficient to make it readily identifiable, and shall state the value of the property.
44.03 Jurisdiction on Motion
Where Made on Notice
(1) On a motion for an interim order for the recovery of personal property made on notice to the defendant, the court may
(a) order the plaintiff to pay into court 1.25 times the value of the property as stated in the order, or such amount as the court may direct, or to give to the sheriff security in such form and amount as may be approved by the court, and direct the sheriff to take the property from the defendant and deliver it to the plaintiff,
(b) order the defendant to pay into court 1.25 times the value of the property as stated in the order, or such amount as the court may direct, or to give to the plaintiff security in such form and amount as may be approved by the court, and allow the property to remain in the possession of the defendant, or
(c) make such other order as may be just.
Where Made Without Notice
(2) On a motion for an interim order for the recovery of personal property made without notice to the defendant, the court may
(a) order the plaintiff to pay into court 1.25 times the value of the property as stated in the order, or such other amount as the court may direct, or to give to the sheriff security in such form and amount as may be approved by the court, and direct the sheriff to take and detain the property for a period of 10 days after service of the interim order upon the defendant before delivering it to the plaintiff, or
(b) make such other order as may be just.
44.04 Condition and Form of Security
Where an interim order for the recovery of personal property requires either party to provide security, the condition of the security shall be that the party providing the security will return the property to the opposite party without delay should he be ordered to do so, and pay any damages and costs the opposite party may have sustained by reason of the interim order. Where the security is by bond, it shall be according to Form 44A, Form 44B or such other form as the court may approve, and shall remain in force until the security is released pursuant to this rule.
44.05 Rescinding Order
The defendant may apply to the court
(a) to rescind or vary an interim order for the recovery of personal property,
(b) to stay proceedings thereunder, or
(c) for any other relief with respect to the return, safety or sale of the property or any part thereof,
by Notice of Motion served within 10 days and returnable within 15 days after the order came to his attention.
44.06 Release of Security
Security furnished pursuant to an order made under this rule may be released on the filing of the written consent of the parties or by order of the court.
44.07 Duty of Sheriff
(1) Before a sheriff enforces an order for the recovery of personal property, he shall satisfy himself that security has been furnished in compliance with the order.
(2) As soon as possible after property has been recovered under an order for the recovery of personal property, the sheriff shall serve on the defendant the interim order and a copy of any supporting affidavit.
(3) Where the sheriff is unable to comply with an order for the recovery of personal property, or it is dangerous for him to do so, he may apply to the court for directions.
(4) The sheriff shall report without delay to the plaintiff as to the property he has recovered under an order for the recovery of personal property, and, where he has failed to recover possession of all or part of the property, as to the property he has failed to recover and the reason therefor.
(5) Where the sheriff has reason to believe that the property to be recovered under an order for the recovery of personal property, or any part thereof, is located in a building or enclosure, he shall demand from the owner or occupant thereof delivery of such property. If the owner or occupant does not deliver the property to the sheriff within 24 hours after such demand, the sheriff shall enter the building or enclosure, by force if necessary, and take possession of the property sought to be recovered.
(6) Where the sheriff has reason to believe that the property to be recovered under an order for the recovery of personal property, or any part thereof, is concealed on the person of the defendant or of someone holding it for the defendant, he shall demand possession of the property. If the defendant or other person refuses to give possession of the property to the sheriff on such demand, the sheriff shall search the defendant or other person to recover the property.
44.08 Where Property Removed
Where the sheriff reports that the defendant has prevented him from recovering property under an order for the recovery of personal property, or any part thereof, the plaintiff may apply for an order directing the sheriff to take other personal property of the defendant and deliver it to the plaintiff to hold until the defendant delivers the property in question to him.
44.09 Examination of Persons Concerning Location
of Property
Where an interim order is made under this rule, and where the court has reason to believe that a person has
information regarding the location of the property referred to in the interim order, the court may order that person to attend before the court or a court stenographer to answer under oath questions relating to the location of such property.
27.01. (1) Any party or intervenor in a proceeding may apply for an interlocutory order to recover possession of property that was unlawfully taken or is unlawfully detained from the party or intervenor by any person, or is held by an officer of the Court under any legal process issued in the proceeding.
(2) [Rep. by 36/14 s31]
(3) When it is sought to enforce an order for the recovery of possession of property, a final recovery order may be obtained as provided in rule 27.13.
Affidavit in support of interlocutory recovery order27.02. The affidavit of an applicant or the applicant's agent in support of an interlocutory recovery order shall
(a) sufficiently describe any property claimed and the value thereof;
(b) set out facts showing that
(i ) the applicant is the owner or lawfully entitled to the possession of the property,
(ii) proceedings have been commenced by the applicant for recovery of possession of the property,
(iii) the property was unlawfully taken or is unlawfully detained from the applicant by the other party or is held by an officer of the Court under any legal process issued in the proceeding, and
(iv) the applicant or the applicant's agent has made a demand for the property which has been refused; and
(c) state the applicant was advised by the applicant's solicitor, naming him or her, and verily believes the applicant is lawfully entitled to recover possession of the property.
Bond in support of interlocutory recovery order
27.03. (1) Unless the Court otherwise orders, the applicant shall provide to the Court a bond in Form 27.03A before an interlocutory recovery order is issued.
(1.1) Unless the Court otherwise orders, the bond in paragraph (1) shall be an amount equal to one and one quarter times the value of the property sought to be recovered, as stated in the applicant's affidavit, with two sufficient sureties or other form of sufficient security, approved by the Court.
(2) Unless the Court otherwise orders, the conditions of bond shall be that the applicant shall
(a) obtain, without delay, an order settling who is entitled to the ownership or possession of the property;
(b) return the property to the party or person from whom it was taken if the applicant fails to obtain the order referred to in rule 27.03(2)(a), without delay, or when the Court so orders; and
(c) pay such damages and costs awarded by the Court against the applicant, resulting from the issuance of the interlocutory recovery order.
(3) When a bond is defective or insufficient, or any surety dies or moves out of the jurisdiction or becomes insolvent, or the other form of security is insufficient, or for any other just cause, the Court may, on notice, order another bond or further security to be given and, if the provisions of the order are not complied with within the time prescribed therein, the Court may dissolve the interlocutory recovery order and order the property to be returned to the party or person from whom the property was recovered, and may grant such other order as is just.
(4) A bond and any security taken thereunder may, by leave of the Court granted on such terms as are just, be assigned by the Registrar to the party from whom the property was recovered and when so assigned that party may realize on the security and commence a proceeding to enforce the bond in that party's own name against all or any of the persons who executed it.
Recovery order
27.04. (1) Unless the Court otherwise orders, an interlocutory recovery order in Form 27.04A shall
(a) contain a description of the property sought to be recovered sufficient to describe it, and the value thereof as set out in the applicant's affidavit;
(b) direct the sheriff to take immediate possession of the property or any part thereof, to make an inventory of any property so recovered, and to serve a true copy of the order
(i ) on the party from whom recovery of the property is sought,
(ii) on any adult person in possession of the property at the time possession is taken, and
(iii) when real property is to be recovered, to post a true copy of the order in a conspicuous place thereon;
(c) direct the sheriff to deliver possession of the property recovered to the applicant when the party, from whom the property is recovered, does not deliver to the sheriff, within three days after a true copy of the order is served on that party, a certificate from the Registrar stating that the party has filed with the Court a bond pursuant to rule 27.06;
(d) direct the applicant to continue forthwith the proceeding until judgment is entered delivering possession of the property to the applicant or otherwise or a bond is filed as provided by rule 27.04(1)(c); and
(e) be endorsed with the name and address of the solicitor of the applicant and Registrar.
(2) Any share, bond, debenture or other interest of an applicant in a body corporate is deemed to be property and may be recovered as provided in rule 27.07.
(3) Unless the Court otherwise orders, after the expiration of ninety days from the issue of an interlocutory recovery order, no property may be recovered under the order, but nothing herein shall be deemed to limit the validity of the order in respect of anything previously done thereunder or to limit the right of the Court to issue a further recovery order in respect of the same or other property.
Sheriff's duty under interlocutory recovery order
27.05. (1) Upon receipt of an interlocutory order, the sheriff shall forthwith, and not later than ninety days after its issue, or within such further period of time as the Court may order, comply with the provisions of the order.
(2) The sheriff shall hold and safely keep any property taken by the sheriff under an interlocutory recovery order for a period of three days after a true copy of the order is served upon the party from whom the recovery of property is sought or other person in possession of the property at the time of taking, and then deliver the property to the applicant unless
(a) the party from whom recovery of the property is sought, or other person from whose possession the property was taken, retains or regains possession of the property by filing a bond as provided by rule 27.06;
(b) the applicant, subject to the payment of the fees and expenses of the sheriff, authorizes in writing the property to be returned to the other party or person entitled thereto; or
(c) the Court orders the property to be returned to the other party or person entitled thereto as provided by rule 27.08.
(3) Where personal property is secured or concealed in a building or enclosure and it is not delivered pursuant to the sheriff's demand, the sheriff shall break open or cause the building or enclosure to be broken open and take possession of the property pursuant to the interlocutory recovery order.
(4) Before the expiration of ninety days from the date of the issue of an interlocutory recovery order or when directed by the Court, the sheriff shall file the order with the Court with a report of any action taken by the sheriff thereunder.
Retention or repossession of property taken under an interlocutory recovery order
27.06. (1) Any party or person, claiming to be the owner or entitled to possession of any property recoverable under an interlocutory recovery order, is entitled to retain or regain possession of the property if the party or person files with the Court not later than three days after a true copy of the order is served on the party or person
(a) an affidavit stating that the party or person is entitled to possession of the property by virtue of the facts set forth therein; and
(b) unless the Court otherwise orders, a bond in Form 27.06A in an amount equal to one and one-quarter times the value of the property recovered as determined by the sheriff, with two sufficient sureties.
(2) Unless the Court otherwise orders, the condition of the bond shall be that the party or other person giving the bond shall deliver the property to the applicant if it is so adjudged, or pay to the applicant when ordered by the Court an amount equal to the value of the property retained or regained under the bond which payment shall not exceed the amount secured by the bond.
(3) When a bond is defective or insufficient, or any surety dies or moves out of the jurisdiction or becomes insolvent, or the other form of security is insufficient, or for any other just cause, the Court may, on notice, order another bond or further security to be given and, if the provisions of the order are not complied with within the time prescribed therein, the Court may grant a further interlocutory recovery order on such terms as are just and any property specified therein may be recovered thereunder.
(4) A bond and any security taken thereunder may, with the leave of the Court or consent of the parties, be assigned by the Registrar to the applicant, and when so assigned the applicant may realize on the security and commence a proceeding to enforce the bond in the applicant's own name against all or any of the persons who executed it.
(5) If more than one party or person files a bond under rule 27.06(1), the sheriff shall retain possession of the property and apply to the Court for an interpleader order under Rule 13.
(6) Where the person or party entitled to retain the property under rule 27.06(1) is a public officer, board or government agency, such officer, board or government agency may, in lieu of giving a bond in Form 27.04A, retain possession of any property seized by filing with the Court, within the time limited by the rule, a writing certifying that public health, safety or welfare would be jeopardized or impaired if the applicant acquired possession of the property prior to judgment being entered, but the applicant may apply to the Court to determine whether the public interest requires the property to be so retained.
Recovery of shares, bonds, etc., of a body corporate
27.07. (1) The sheriff may recover any share, bond, debenture or other interest of an applicant in a body corporate by serving an interlocutory recovery order upon the body corporate as provided in rule 6.02(1)(b).
(2) When an interlocutory recovery order is served upon a body corporate, the body corporate and its transfer agent shall
(a) not transfer the title to or deliver possession of any share, bond, debenture or other interest of an applicant therein to any person until the Court otherwise orders; and
(b) forthwith file with the Court a certificate setting out
(i) the number and class of any share so retained with the certificate number and the name and address of any registered owner thereof,
(ii) the number, face value and description of any bond or debenture with the serial number thereof and the name and address of any registered owner thereof, and
(iii) a description of any other interest of the defendant in the body corporate so retained.
(3) The Court may order any share, bond, debenture or other interest of an applicant in a body corporate to be held, released, transferred or otherwise disposed of upon such terms and conditions as it may order, and any such holding, release, transfer or disposal pursuant to the terms of the order shall relieve the body corporate from liability to any person claiming the share, bond, debenture or other interest.
Remedies of any part y or person in relation to an interlocutory recovery order
27.08. Any party or person, claiming an interest in any property taken under an interlocutory recovery order or claiming that the order was wrongfully granted or issued, may
(a) give written notice of the party's or person's claim to the sheriff as provided in rule 13.02 and the provisions of Rule 13 shall apply with any necessary modification to any interpleader proceeding taken thereunder;
(b) make an application in the proceeding as a party or intervenor , and the court may on the hearing thereof
(i ) grant the applicant a reasonable opportunity to amend an affidavit or bond used in support of the grant of the order,
(ii) upon such terms as it thinks just, vary or modify or set aside the order or stay the proceeding,
(iii) order any property taken under the order to be held by the sheriff pending the entry of judgment or further order of the Court or to be returned or disposed of upon such terms as it thinks just, or to grant any other relief with respect to the return, safety, or sale of the property, or any part thereof,
(iv) order any bond to be released or given, or
(v) grant such other order as it thinks just.
Sale or other disposition of property by Court
27.09. (1) When any property, taken by the sheriff under an interlocutory recovery order, is likely to perish or materially depreciate in value before the probable termination of the proceeding, or the keeping of the property could result in unreasonable loss or expense, or for other just cause, the Court may order the sale or other disposal of all or any part of the property in such manner and upon such terms as are just.
(2) Unless the Court otherwise orders, the sheriff shall forthwith on the sale of a property file a report thereon with the Court and pay the proceeds, less his or her fees and expenses, into Court to be held pending further order.
Recovery of unique property
27.10. Where any property sought to be recovered under an interlocutory recovery order is unique, the Court may also grant a restraining order providing that the property shall not be removed from the jurisdiction, transferred, sold, pledged, assigned or otherwise disposed of until further order of the Court.
Disclosure
27.11. The Court may, at any time after the granting of a recovery order, order a person to disclose any information that person possesses regarding any property which an applicant seeks to recover under the order.
Final judgment in the proceeding
27.12. (1) In a proceeding or on an application to recover possession of property, final judgment may be entered directing possession of the property to be given to the party or applicant or, where possession cannot be given, ordering the value thereof to be recovered by the party or applicant, and award damages for the wrongful taking or withholding of the same.
(2) When in a proceeding or on an application under rule 27.12(1), another party claims the return of any property recovered by an applicant under an interlocutory recovery order, final judgment may be entered directing the property to be returned to the other party or, where the property cannot be returned, may order the value thereof to be paid to the other party, and award damages for the wrongful taking and withholding of the same.
(3) Where a party to a proceeding to recover possession of property is entitled to enter judgment by default against any other party, the party may enter judgment to recover possession of the property and apply to have the damages assessed, or enter judgment to recover possession of the property, and the sum of one dollar as damages with costs to be taxed or, when the other party consents to the amount of damages, for that amount of damages and costs to be taxed.
Application for a final recovery order
27.13. (1) Where it is sought to enforce a final order for the recovery of possession of property, the Court may, on an ex parte application supported by affidavit, grant an order in Form 27.13A for the sheriff to deliver possession of the property as provided in the order.
(2) The sheriff, upon receipt of an order in Form 27.13A, shall take immediate possession of the property described therein or such part thereof as is available, and the person in possession of the property shall not have the right to retain possession of it by filing a bond or otherwise.
(3) When the sheriff is unable to take possession of any property referred to in the order, the sheriff shall forthwith file the order with the Court with the sheriff's report endorsed thereon or attached thereto, and the Court may grant such further order as is just.
Granting, etc., of recovery order on holiday
27.14. A recovery order may be granted, issued or served on a Saturday, Sunday or other holiday, if it is set out in an affidavit that the applicant who seeks to recover possession of property may not be able to do so unless the order is granted, issued or served on that day.
(1) A temporary recovery order is available in limited circumstances, before a proceeding is heard and determined, to obtain possession of property claimed in the proceeding.
(2) A party may obtain temporary possession of property, in accordance with this Rule.
43.02 Motion for temporary recovery order
(1) A party who claims possession of property in an action or application may make a motion to the prothonotary for a temporary recovery order.
(2) The motion must be supported by an affidavit and either of the following:
(a) the bond of a recognized surety company;
(b) the party’s own bond with, unless the prothonotary permits otherwise, two or more sureties.
(3) If the party’s own bond is filed with sureties, the motion must also be supported by affidavits of the sureties proving that, collectively, they have sufficient net worth to cover a claim in an amount one and a quarter times the value of the property.
43.03 Affidavit
The party who seeks a temporary recovery order must provide reliable evidence of the value of the property and establish all of the following:
(a) the party is entitled to possession of the property, the party who has possession of the property is not entitled to withhold possession from the party seeking the order, a demand for possession has been made, and the demand has been refused;
(b) the party has retained a lawyer to advise the party about the motion, and received advice about the party’s entitlement to possession and the party’s obligation under the bond.
43.04 Obligation and bond securing it
(1) A party who obtains a temporary recovery order must bring the party’s claim for possession to final determination without delay and, if the party’s claim is dismissed, do both of the following:
(a) deliver the property to the party determined to be entitled to it;
(b) indemnify the party for losses resulting from the party having been deprived of possession.
(2) The bond supporting the motion for the order must be for an amount one and a quarter times the value of the property and be payable when the party fails to return property, or to indemnify another party, as required by this Rule 43.04.
(3) The bond must be executed by a recognized surety company, or be signed and sealed by the party who makes the motion and, unless the prothonotary permits otherwise, at least two sureties.
(4) The bond must continue until either the court allows the claim of the party who makes the motion, or the court dismisses the claim and the party who obtains the temporary recovery order delivers the property to the party determined to be entitled to it and indemnifies the other party for losses resulting from having been deprived of the possession.
(5) A party’s own bond must contain the standard heading, be entitled “Bond for Temporary Recovery Order”, be signed by the party, the sureties, and subscribing witness, and include all of the following:
(a) a reference to the motion and statement of the purpose of the bond;
(b) a description of the property;
(c) the bond of the party seeking the order and of the sureties;
(d) the conditions of the bond;
(e) a term that the bond is for the benefit of each other party to the proceeding and the parties’ heirs, representatives, successors, and assigns;
(f) a term that the bond is assignable at the direction of the court.
(6) The bond may be in Form 43.04.
(7) A surety may take security from the party who makes the motion for the temporary recovery order.
43.05 Form of order
(1) A temporary recovery order must contain the standard heading, be entitled “Temporary Recovery Order”, provide a reference to the motion made for the order, and include all of the following provisions:
(a) a direction to the sheriff to immediately take possession of the property;
(b) a description of the property;
(c) authority to come on land, open a building, take control of a moveable, and break a lock or other barrier;
(d) an injunction to restrain a person who has notice of the order from obstructing the seizure and to require a person who has a means of access to provide access;
(e) authority for the sheriff to store and protect the property, a requirement the party who obtained the order pay all expenses of enforcing it, and permission for the sheriff not to act on the order if the party fails to make a payment or provide a reasonable advance;
(f) a direction to the party who obtains the order to deliver a certified copy of the order to the party from whom the property is recovered and immediately advise the sheriff in writing of the time, date, and place of the delivery;
(g) if the property is land, a direction to the party who obtains the order to deliver a certified copy of the order to each person who has a recorded interest in the land and, on behalf of the sheriff, to record the order under the Land Registration Act or register it under the Registry Act;
(h) a provision allowing the party from whom the property is recovered to reacquire possession of the property by filing a bond and obtaining a prothonotary’s certificate in accordance with these Rules before the sheriff turns the property over to the party who obtains the order;
(i) a direction to the sheriff to turn the property over to the party who obtains the order, unless the certificate is delivered no more than five days after the day of the seizure, or the day a certified copy of the order is delivered to the party from whom the property is recovered, whichever is later;
(j) a requirement that the sheriff file a report of the actions taken under the order no more than fifty days after the date the order is issued and file a further report when further action is taken.
(2) he temporary recovery order may be in Form 43.05.
43.06 Party reacquiring property
(1) A party who wishes to keep property that is the subject of, or reacquire property taken under, a temporary recovery order must obtain a prothonotary’s certificate that the party has filed the required bond, and deliver the certificate to the sheriff before the property is turned over to the party who obtains the temporary recovery order.
(2) A party who keeps or reacquires property by obtaining and delivering a prothonotary’s certificate has the same duties as the party who obtains the recovery order to bring the party’s claim for possession to final determination, to deliver the property to the other party if the claim is dismissed, and to indemnify the other party if the claim is dismissed.
(3) The reacquiring party’s bond must be in the same amount as the bond to obtain the temporary recovery order and conform with the requirements for a bond for a temporary recovery order as if the reacquiring party were the party who obtains the order, except the bond must be entitled “Bond to Retain Property” and describe the location, at which and the way the party holds or held, the property.
(4) A party who files the party’s own bond to reacquire or keep property must attach to the bond affidavits of the sureties proving that, collectively, the sureties have sufficient net worth to cover a claim in the amount of the moving party’s bond.
(5) The party’s bond may be in Form 43.06A.
(6) The prothonotary’s certificate may be in Form 43.06B.
(7) A surety may take security from the reacquiring party.
43.07 Other person reacquiring property
A person who is not a party and claims an interest in property seized, or to be seized, under a temporary recovery order may make a motion to be joined as a party or a motion for directions under Rule 43.11.
43.08 How land is seized
The sheriff may take possession of land by any reasonable means, such as changing locks or boarding up premises.
43.09 How corporate shares or securities are seized
(1) The sheriff may seize corporate shares, or securities such as bonds or debentures, by delivering a copy of the recovery order to the issuing corporation and providing sufficient information about the holder that the corporation can identify the share, or security, to which the temporary recovery order relates.
(2) A corporation to whom a temporary recovery order is delivered must do all of the following:
(a) freeze transactions in reference to shares or securities described in the recovery order;
(b) deliver to the sheriff a statement providing details of the shares or securities, including the measures that are required to record a transfer;
(c) abide by the sheriff’s directions, or make a motion for directions by a judge;
(d) take all steps necessary to prevent an interest in the shares or securities from being transferred, except a transfer permitted by the sheriff or a judge.
43.10 Sheriff to deliver property
(1) The sheriff must hold property seized under a temporary recovery order until five days after the day the property is recovered or the day a copy of the order is delivered to the party from whom the property is recovered, whichever is later.
(2) The sheriff must deliver the property to one of the following parties, in the following circumstances:
(a) the party who obtains the order, if no prothonotary’s certificate is delivered during or before the five day period;
(b) the party who delivers a prothonotary’s certificate to the sheriff before the property is delivered to the party who obtains the order.
(3) A sheriff who is unsure to whom property should be delivered, or how to make delivery, may hold the property while the sheriff requests directions of a judge.
43.11 Judge’s directions
(1) A judge may give directions on any subject regarding the enforcement of a temporary recovery order, the seizure of property, or the delivery of property, including on the following subjects:
(a) protection of property claimed to be unique;
(b) delivery of corporate shares or securities;
(c) disclosure of information about the property;
(d) sale of property that is perishable or likely to depreciate in value;
(e) sufficiency of a bond;
(f) a deadline for compliance with a provision in the temporary recovery order.
(2) The directions prevail over the terms of the temporary recovery order.
(3) A party, interested non-party, prothonotary, or sheriff may make a motion for directions.
43.12 Termination by judge
(1) A judge may terminate a temporary recovery order and give directions for release, assignment, or other disposition of the bond.
(2) The judge who terminates a temporary recovery order may, instead, grant an interlocutory injunction or a preservation order.
43.13 Final order, damages, and assignment
(1) The court may grant a remedy available at law on final disposition of a claim to recovered property, such as any of the following remedies:
(a) an order for possession of the property;
(b) an injunction requiring one party to deliver the property to another;
(c) a declaration of interests in the property;
(d) damages for the value of the property, if it can no longer be delivered and the claim to possession of the party who temporarily acquired or reacquired the property is dismissed;
(e) damages for losses caused to a party deprived of the property but found to be entitled to possession.
(2) A judge may direct the prothonotary to assign a bond to a party entitled to indemnification, and the judge may permit the party to recover up to the full limit of the bond or order a limit on the amount that may be recovered.
104 (1) In an action in which the recovery of possession of personal property is claimed and it is alleged that the property,
(a) was unlawfully taken from the possession of the plaintiff; or
(b) is unlawfully detained by the defendant,
the court, on motion, may make an interim order for recovery of possession of the property.
Damages
(2) A person who obtains possession of personal property by obtaining or setting aside an interim order under subsection (1) is liable for any loss suffered by the person ultimately found to be entitled to possession of the property.
(1) In an action in which the recovery of possession of personal property is claimed and it is alleged that the property
(a) was unlawfully taken from the possession of the plaintiff; or
(b) is unlawfully detained by the defendant, a court, on application, may make an interim order for the recovery of possession of the property.
Damages
(2) A person who obtains possession of personal property by obtaining or setting aside an interim order made under subsection (1) is liable for any loss suffered by the person ultimately found to be entitled to possession of the property.
Saskatchewan
The Queen’s Bench Rules, Sask Gaz December 27, 2013, 2684 ss 6.68-6.73 (enabling statute: The Queen’s Bench Act, 1998, SS c Q-1.01).[51]
DIVISION 6
Replevin
Recovery of goods unlawfully detained
6-68(1) A plaintiff in any action brought to recover any personal property who claims, alone or with any other claim, that the property was unlawfully taken or is unlawfully detained, may apply to the Court for a replevin order to deliver that property to the plaintiff on the plaintiff’s complying with the rules in this Division.
(2) An application pursuant to subrule (1) may be made at any time after the issue of the statement of claim.
(3) A replevin order must be in Form 6-68.
(4) Nothing in this Division authorizes the replevying of any property seized by a sheriff or other officer charged with the execution of any process issued out of the Court.
Issue of replevin order
6-69(1) The local registrar shall issue a replevin order on the plaintiff filing the plaintiff’s affidavit, or the affidavit of the plaintiff’s duly authorized agent, that contains all of the following:
(a) a description of the property and its value, to the best of the deponent’s belief;
(b) a statement that the plaintiff claiming the property is the owner or is entitled to the possession of the property;
(c) if replevin is sought in the case of property distrained for rent or damage feasant, a statement that the property was taken under colour of distress for rent or damage feasant, as the case may be;
(d) if replevin is sought in the case of property wrongfully taken out of the possession of the plaintiff, or fraudulently got out of the plaintiff’s possession, a statement of:
(i) the time when and the wrongful and fraudulent manner in which the property was taken or gotten out of the plaintiff’s possession; and
(ii) those facts and circumstances that show that the plaintiff is entitled to the possession of the property;
(e) the name of the judicial centre nearest to which the property sought to be replevied is situated.
(2) If the affidavit substantially complies with the requirements of subrule (1), the validity of the replevin order must not be questioned in any interlocutory proceeding.
Information Note
Damage feasant refers to damage caused by another’s animal or other personal property being found on land and doing damage on the land, for example, by treading down grass.
Replevin security
6-70(1) Before the sheriff recovers by replevin, the plaintiff or an agent of the plaintiff shall provide the sheriff with security equal to the value of the property to be replevied as stated in the replevin order.
(2) For the purposes of subrule (1), security must consist of:
(a) cash;
(b) negotiable securities;
(c) an irrevocable letter of credit issued by a chartered bank; or
(d) a bond with sufficient sureties.
(3) At the defendant’s request, the sheriff shall assign the security to the defendant.
(4) On an assignment pursuant to subrule (3), the defendant is entitled to bring an action on the security in the defendant’s own name against the party depositing the cash or negotiable securities, the chartered bank or the parties who execute a bond.
(5) For the purposes of this rule:
(a) a bond must be in Form 6-70A;
(b) a deposit of cash or securities must be accompanied by a Deposit of Cash or Securities for Replevin in Form 6-70B; and
(c) a deposit of a letter of credit issued by a chartered bank must be accompanied by a Deposit of Letter of Credit for Replevin in Form 6-70C.
(6) If the defendant retains possession of personal property in accordance with rule 6-72:
(a) any security deposited by the plaintiff must immediately be returned to the plaintiff; or
(b) if the security consists of cash or negotiable securities and is not returned, the cash or negotiable securities must not be released without an order of the Court.
Service of copy of replevin order where property secured or concealed from sheriff
6-71(1) A copy of a replevin order must be served:
(a) on the defendant personally;
(b) if the defendant cannot be found, by leaving it at the defendant’s usual or last place of residence with the defendant’s spouse or another adult person who is a member of the defendant’s family or household;
(c) if no person as described in clause (b) is resident at the defendant’s usual or last place of residence, by posting it in a conspicuous place on the premises; or
(d) if the defendant has no known residence, by posting it in the office of the local registrar who issued the replevin order.
(2) Service or posting pursuant to subrule (1) must not be made until the sheriff has replevied the property described in the replevin order or that part of the property that can be found.
(3) Subject to subrule (4), a sheriff or other officer may, if necessary, break open, enter and search any premises for the purpose of replevying any property demanded if:
(a) the sheriff or other officer believes on reasonable grounds that all or any part of the property to be replevied is secured, contained or concealed in any premises, building or enclosure of:
(i) the defendant; or
(ii) any other person keeping or holding the property for or on behalf of the defendant;
(b) the sheriff or other officer has demanded that the owner, occupier or other person in charge of the premises, building or enclosure deliver the property; and
(c) the property has not been delivered on that demand.
(4) A sheriff or other officer may break open, enter and search pursuant to subrule (3) only between sunrise and sunset.
(5) If the sheriff or other officer finds all or any of the property to be replevied in the premises, building or enclosure, the sheriff or other officer may replevy the property.
Defendant’s right to retain on giving security
6-72(1) Except in case of distress for rent or damage feasant, the defendant or an agent of the defendant has the right to retain possession of all or part of the property described in the replevin order if the defendant provides the sheriff with security equal to the value of the property to be replevied as stated in the replevin order.
(2) For the purposes of subrule (1), security must consist of:
(a) cash;
(b) negotiable securities;
(c) an irrevocable letter of credit issued by a chartered bank; or
(d) a bond with sufficient sureties.
(3) At the plaintiff’s request, the sheriff shall assign the security to the plaintiff.
(4) On an assignment pursuant to subrule (3), the plaintiff is entitled to bring an action on the security in the plaintiff’s own name against the party depositing the cash or negotiable securities, the chartered bank or the parties who execute a bond.
(5) For the purposes of this rule:
(a) a bond must be in Form 6-72A;
(b) a deposit of cash or securities must be accompanied by a Deposit of Cash or Securities for Replevin in Form 6-72B; and
(c) a deposit of a letter of credit issued by a chartered bank must be accompanied by a Deposit of Letter of Credit for Replevin in Form 6-72C.
(6) Security consisting of cash or negotiable securities must not be released without an order of the Court.
Sheriff’s return to replevin order
6-73 The sheriff shall without delay make a return of the replevin order to the Court at the judicial centre where that order was issued and shall attach to the return:
(a) the names, places of residence and occupation of the parties to and the date of the security taken from the plaintiff and the names of the witnesses to the security;
(b) the number, quality and quantity of the articles of property replevied;
(c) if the sheriff has replevied only a portion of the property mentioned in the replevin order and cannot replevy the residue, a statement respecting those articles that the sheriff cannot replevy and the reason why not; and
(d) if the property is retained by the defendant pursuant to rule 6-72, the date and the names, places of residence and occupation of the parties and the witnesses to any security document
Recaption
Recaption has been categorized a number of ways, but generally, it is considered a self-help remedy which allows an individual to behave in ways that would otherwise be legally wrong to recover their chattel.[52] Some courts have considered recaption to be a right while others have viewed it as a privilege.[53][54]
In Slater v. Attorney-General (No. 1), the defendant police officers sought to use recaption as a common-law defence.[53] However, the court demonstrated that there are limits to what types of behaviour fall in the scope of recaption, finding that the police officers’ use of OC spray was excessive.[55]
Critiques of intentional interference with goods
Report on wrongful interference with goods
The Law Reform Commission of BC wrote a report that deals with this topic, which has been cited throughout this page, and can be read here.
The torts that fall under the category of intentional interference with goods have at times been critiqued as being “out of step”, unsupported by policy, or as “adopting conflicting positions.”[56] They remain more closely associated with the old writ system than other contemporary torts. Rather than focusing on the nature of the interference and what remedies will make the plaintiff whole, the torts of intentional interference with goods are still largely driven by the forms that established conversion, trespass and detinue.[57]
↑ 11.011.1Wilson v. New Brighton Panelbeaters Ltd,[1989] 1 NZLR 74 (HC)(§8.1.1) at para 7 citing John W Salmond, RFV Heuston & RA Buckley, Salmond and Heuston on the Law of Torts, 19th ed (London, UK: Sweet & Maxwell, 1987) at 104.
↑Hudson's Bay Co. v. White, [1997] O.J. No. 307 (ON Ct J (Gen Div)) at para 8 citing Clerk and Lindsell on Torts, 17th ed (London: Sweet & Maxwell, 1995) at 702.
↑Hudson's Bay Co. v. White, [1997] O.J. No. 307 (ON Ct J (Gen Div)) at para 8 citing Halsbury's Laws of England, 4th ed, vol 45 (London: Butterworths, 1985) at para 1491.
↑Robertson v. Stang, 1997 CanLII 2122 (BCSC) (§8.2.3) at para 39, citing G.H.L. Fridman The Law of Torts in Canada, vol 1 (Toronto: Carswell, 1990) at 95.
↑Wilson v. New Brighton Panelbeaters Ltd,[1989] 1 NZLR 74 (HC)(§8.1.1) at para 14 citing John W Salmond, RFV Heuston & RA Buckley, Salmond and Heuston on the Law of Torts, 19th ed (London, UK: Sweet & Maxwell, 1987) at 110.
↑Wilson v. New Brighton Panelbeaters Ltd,[1989] 1 NZLR 74 (HC)(§8.1.1) at para 21, citing John G Fleming, The Law of Torts, 6th ed (Toronto: Carswell, 1983) at 47.
↑ 33.033.133.2Schentag v. Gauthier,1972 CanLII 1205 (SKQB) (§8.3.1) at para 24, citing General & Finance Facilities, Ltd. v. Cooks Cars (Romford), Ltd., [1963] 2 All ER 314 (CA) at 319, Diplock LJ .
↑Schentag v. Gauthier,1972 CanLII 1205 (SKQB) (§8.3.1) at para 7, citing General & Finance Facilities, Ltd. v. Cooks Cars (Romford), Ltd., [1963] 2 All ER 314 (CA) at 317, Diplock LJ .
