Hayward v. Bennett

2011 BCSC 1015 Hayward v. Bennett IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hayward v. Bennett, 2011 BCSC 1015 Date: 20110727 Docket: S094874 Registry: Vancouver Between: William Hayward Plaintiff And Samuel E. Bennett Defendant Before: The Honourable Mr. Justice Sewell Reasons for Judgment The Plaintiff: In Person Counsel for the Defendant: Greg Diamond C.D. Steinberg S.F. Smith Place and Date of Trial: Vancouver, B.C. April 26 - 29, May 2 - 6; May 9-13, 2011 Place and Date of Judgment: Vancouver, B.C. July 27, 2011 [1] In this case the plaintiff William Hayward seeks remedies against the defendant Samuel Bennett arising out of a failed attempt to establish an organic farm on a remote property near Birkenhead Lake. [2] Mr. Hayward seeks specific performance of an agreement he alleges he made with Mr. Bennett in which Mr. Bennett agreed to transfer three acres of the farm containing a farmhouse to him. He also seeks specific performance of a written lease agreement dated November 1, 2007 (the Vegetable Lease) that he and Mr. Bennett signed in June 2008. He also claims substantial damages that he alleges resulted from his wrongful eviction from the farm in June 2009, and for breach of the agreements. [3] Mr. Bennett denies that he made any agreement to convey the three acres to Mr. Hayward. He submits that the Vegetable Lease is too uncertain to be enforceable because its subject matter cannot be ascertained. Finally he submits that he lawfully recovered possession of his property from Mr. Hayward and that in any event Mr. Hayward suffered only nominal damages from being evicted from the property. [4] I heard thirteen days of testimony in this case. There was substantial disagreement between the witnesses both as to what events actually occurred and as to the subjective characterization of those events. Fortunately I do not have to resolve all of these conflicts to decide the issues before me. In the course of the evidence a general narrative of the history of the ill fated relationship between the parties did emerge. I will first set out that general narrative. I will address credibility and resolve conflicts in the evidence only when it is necessary to do so to determine the legal issues before me. [5] Mr. Hayward has a long history of involvement in the organic farming movement. For some time prior to 2007 he lived with his partner, Mojave Kaplan, in a farmhouse near Lytton. While there he participated in a relatively large organic farming operation with Ms. Kaplan and others. Ms. Kaplan and Mr. Hayward operated booths together at various farmers markets, including the Whistler farmers market. There is considerable disagreement between Mr. Hayward and Ms. Kaplan as to their relative contributions to the farming activities and the farmers markets. However it is clear that Mr. Hayward did make a substantial contribution to them. [6] Mr. Hayward and Ms. Kaplan separated in October 2007. As Mr. Hayward had been living in Ms. Kaplan's house he found himself without a place to live. In the fall of 2007 he began discussions with Kevin Demaskie, Mr. Bennett's business partner, about relocating to the farm, leasing some portion of the farm and playing some role in Mr. Bennett's plan to establish a certified organic farm. [7] As alluded to above, the farm is in a remote location. It is located at the end of Blackwater Road, just before it enters Birkenhead Provincial Park. Except in winter, it takes between 90 minutes and 2 hours to drive to the farm from Whistler. Blackwater Road is gravel surfaced for about 18 kilometres before it reaches the farm. It appeared from the evidence that the property is snow covered from November to April. There are no electric or telephone lines to the farm, nor is there any cell phone service. Water is obtained pursuant to a water license to take water from nearby Phelix Creek. Mr. Hayward testified that there was also a well on the property. [8] By December 2007 the farm had been unoccupied for approximately three years. It had formerly been homesteaded by the Thompson family. Mr. Bennett purchased it in 2005. His original plan was to operate an ecotourism facility on the property. However most of the farm was located within the Agricultural Land Reserve. In addition the zoning did not permit such a facility to be operated. [9] By 2007 the property had lost farm status with the British Columbia Assessment Authority (the BCAA) for lack of sufficient farm produce production. Sometime in that year Mr. Bennett and Mr. Demaskie began to pursue the idea of establishing a certified organic farm on the property with a view to supplying fresh organic vegetables to the restaurant trade in Whistler. However, not surprisingly, they had been unable to find anyone to operate the farm and no substantial progress had been made in that direction up to the time that discussions began with Mr. Hayward. [10] There are significant conflicts in the evidence as to the sequence of events that led to Mr. Hayward moving to the farm. It is however agreed that Mr. Hayward moved into the farmhouse on the farm by February 2008. When he moved in, the farmhouse was rat infested and had no source of heat. Mr. Demaskie and Mr. Hayward moved a wood stove from the greenhouse on the property into the farmhouse and Mr. Hayward established his home there. Mr. Bennett made a large Dodge pickup truck that he owned available to Mr. Hayward to assist him to move his belongings and some farm supplies and equipment from Lytton to the farm. After the move Mr. Bennett arranged for Mr. Hayward to use the truck in connection with the farming operation. [11] In the course of the trial it became apparent to me that the parties had not really thought through the nature of the ongoing role that Mr. Hayward would play in the farming operation by the time he moved to the farm. I was unable to discern any specifics about Mr. Bennett's plan for the property beyond regaining farm status with the BCAA. Mr. Bennett left the planning and day to day operational decisions with respect to the farm up to Mr. Demaskie. The lack of a specific plan for developing the farm and the undefined nature of Mr. Hayward's role in the development became an increasingly difficult issue between the parties. [12] There was a meeting involving Mr. Hayward, Mr. Bennett, Mr. Demaskie and Mike Wood on or about February 8, 2008. Mike Wood was a friend of Mr. Bennett's who lived in Mr. Bennett's Whistler house. At that meeting there was some considerable discussion about Mr. Hayward's ongoing involvement in the property. Mr. Hayward was expected to take steps to obtain certified organic status for the farm and to produce enough revenue to permit the farm to regain farm status with BCAA. Mr. Bennett was to provide funds to permit Mr. Hayward to do so. It was agreed that Mr. Hayward would be granted a lease of 10 acres of the farm on which he could conduct his own farming operation. However, the location of the 10 acres and the terms on which the lease were to be granted were not settled. [13] I also find that Mr. Hayward had led Mr. Demaskie to believe that he had previously had a lease for part of the Lytton farm. That was in fact not the case. Mr. Demaskie asked Mr. Hayward for a copy of the lease of the Lytton farm to use in the preparation of the contemplated lease of a portion of the Bennett property. Mr. Hayward did not provide any lease. Ultimately Mr. Demaskie downloaded a precedent for a vegetable lease from the British Columbia Ministry of Agriculture. He discussed the form of the Vegetable Lease with Mr. Bennett and made some modifications to it, including inserting a rent of $1000 per year and deleting a provision for a right of first refusal. [14] Mr. Bennett visited Mr. Hayward at the farmhouse in June 2008. At that time he and Mr. Hayward agreed that the Vegetable Lease would be signed in the form prepared by Mr. Demaskie. Mr. Bennett and Mr. Hayward went to an unidentified notary public in Pemberton and had an executed copy of the Vegetable Lease notarized. No executed copy was put into evidence at the trial. However everyone agrees that a copy of the lease signed by Mr. Bennett and marked as an exhibit in the trial was identical to the one that was executed and notarized. [15] In 2008 Mr. Hayward did undertake some farming activities. He cultivated some vegetables on what has been variously described as the Chef's Garden or the Thompson Garden. While there was some dispute as to whether this garden was actually on the property or on adjoining crown land I do not think anything turns on that in this case. Mr. Hayward also did some cultivation on a plot adjoining the farm road. Again, there is a dispute as to what production, if any, was achieved on that plot. [16] Mr. Hayward was also involved in the establishment and planting of approximately one acre of garlic on the farm. Mike Wood was also involved in that planting. Garlic is planted in the fall and harvested at the end of the following summer. The photographic evidence tendered at trial does show that there was a significant garlic crop in the ground shortly before Mr. Hayward was evicted. [17] By the time the Vegetable Lease was executed relations between Mr. Hayward and Messrs. Bennett and Demaskie had deteriorated. Mr. Bennett declined to advance any more money to Mr. Hayward in connection with the farm. Mr. Demaskie and Mr. Bennett testified that this was because Mr. Hayward was unable to account for his expenses. Mr. Hayward denies this and testified that he did provide receipts to Mr. Bennett. In fact some receipts were put into evidence and Mr. Bennett agreed that those were given to him by Mr. Hayward in June 2008. However it is also apparent that Mr. Hayward was becoming increasingly alienated from Mr. Demaskie and that for all practical purposes any constructive communication between Mr. Hayward and Messrs. Demaskie and Bennett ceased by the summer of 2008. Nevertheless, Mr. Hayward continued to occupy the farmhouse. [18] By a letter dated November 21, 2008, Mr. Bennett informed Mr. Hayward that he was to play no further role in the development of the Bennett property and was to restrict his activities to the 10 acres he was to lease from Mr. Bennett. He also requested that Mr. Hayward designate where he wished his 10 acres to be on the farm property. In the letter Mr. Bennett also stated that he considered that Mr. Hayward was being permitted to reside in the farmhouse on a month to month basis. He also, apparently for the first time, asked Mr. Hayward to pay the annual rent of $1000 stipulated in the Vegetable Lease. [19] Mr. Demaskie delivered the letter to Mr. Hayward on November 28, 2008. Mr. Hayward testified that he immediately called Mr. Bennett to discuss the letter. Mr. Bennett denies that any such discussion took place. Mr. Hayward however did drive to Whistler and paid the demanded rent to Mike Wood within a short period of time after November 28th. [20] In January 2009, Mr. Demaskie requested that Mr. Hayward return the Dodge pickup truck to Mr. Bennett. There was another meeting in February 2009 that resolved nothing. Mr. Hayward returned the pickup truck to Mr. Bennett by leaving it outside Mr. Bennett's house in Whistler. While it was in Mr. Hayward's possession the truck had suffered some damage to the right rear fender. Much was made of the state of the truck during the period it was in Mr. Hayward's possession. Mr. Hayward testified that the truck was in poor mechanical repair when Mr. Demaskie gave it to him to use. Other witnesses described it as being in good or even mint condition. Mr. Demaskie described it as being in a filthy state when it was returned. Mr. Hayward says he cleaned the truck before he returned it. I cannot conclude on the evidence before me that Mr. Hayward did any significant damage to the truck while it was in his possession. He testified that the damage to the fender occurred when it was hit by a fork lift loading a generator onto it and that Mr. Demaskie told him he would see to the repair. [21] At the outset of the trial Mr. Hayward advanced a claim for damages for breach of an alleged agreement on Mr. Bennett's part to transfer the truck to him. However, as the evidence unfolded Mr. Hayward acknowledged that at best Mr. Bennett had agreed to sell the truck to him but that no price had been agreed upon. He has therefore, as I understand it, abandoned any claim with respect to the truck. Similarly the defence led extensive evidence to suggest that the condition of the truck deteriorated significantly while it was in Mr. Hayward's possession. Apart from being led to attempt to establish Mr. Hayward's incompetence and inability to take proper care of the farm I am at a loss to see how this evidence was relevant to the determination of the issues before me. At trial Mr. Bennett testified that the truck was sold. No evidence was presented as to any monetary loss suffered by Mr. Bennett as a result of Mr. Hayward's operation of the truck. [22] Following delivery of the November 21st letter, relations between the parties continued to deteriorate. It is quite clear from the contents of an email that Mr. Demaskie sent to John Wood, Mike Wood's father, on February 21, 2009 that by that time Mr. Bennett had decided to evict Mr. Hayward from the farm property once the winter was over. [23] On April 19, 2009 Mr. Bennett delivered a letter to Mr. Hayward purporting to terminate the Vegetable Lease for alleged breaches of its terms and giving Mr. Hayward 15 days notice to vacate 2530 Blackwater Road by May 4, 2009. That letter was followed up by another on April 29, 2009. In that letter Mr. Bennett put three options to Mr. Hayward. One was to permit him to remain in the farmhouse as a tenant on a monthly tenancy with rent of $400 per month. Mr. Hayward did not respond to either notice. [24] On June 5, 2009, Mr. Bennett's solicitors wrote a letter to Mr. Hayward demanding that he vacate the farmhouse by June 12, 2009. [25] Mr. Demaskie arranged for a bailiff to attempt to evict Mr. Hayward on June 12, 2009 but for reasons that were not fully explained the bailiff was unable to do so. [26] On June 13, 2009 Mr. Demaskie and his brother in law went to the farm. Mr. Hayward was inside the farmhouse. Mr. Demaskie stated that he attempted to communicate with Mr. Hayward but that Mr. Hayward did not respond. Mr. Demaskie knew that Mr. Hayward was inside the house. Mr. Demaskie boarded up all the windows in the house by screwing sheets of plywood over them. He left the door unobstructed to permit Mr. Hayward to exit the house. [27] Mr. Demaskie testified that when he went to the only door in the house he observed Mr. Hayward holding a machete. At that point he left the property with all the openings to the house, except the door, boarded up. [28] Mr. Hayward testified that he was terrified by the actions of Mr. Demaskie. He says that he observed three people outside the house and that one appeared to be holding a golf club. He thought that this constituted a threat to him. He says that he attempted to have the police attend but that they told him they considered the dispute to be a civil matter. [29] Mr. Hayward was dependant on a diesel powered generator for electric power to operate his satellite phone system. He was low on fuel for the generator. Eventually the satellite telephone lost power and was no longer operable. Before he lost power, Mr. Hayward was able to call two friends to come to his assistance. It is not clear to me at what time these calls were made. However between 6:00 p.m. and 8:00 p.m. on June14th, Mr. Pat Demers, a friend of Mr. Hayward, arrived at the property with his pickup truck. A little later Mr. David Brown, another friend, arrived with diesel fuel for Mr. Hayward's generator. [30] Mr. Hayward and Mr. Demers proceeded to load as many of Mr. Hayward's possessions as possible into Mr. Demers' and Mr. Hayward's pickup trucks. They left the farm that night. Mr. Hayward stated that he tried to take his most valuable items with him but did not have room for everything he possessed. He also stated that he left a computer and some valuable records on the kitchen table in the farmhouse, intending to return to retrieve them. [31] Mr. Demaskie testified that the following Thursday he learned that Mr. Hayward was away from the property. Upon receiving this information he went back to the property and boarded up the farmhouse door. He stated that he used between 50 and 60 wood screws to affix a plywood sheet to the door. He prepared a handwritten sign and posted it on the plywood. The sign stated: No access by order of landowner June 18, 2009 Questions, call Nancy Wilhelm-Morden Race & Co. Whistler 604 935 3600 [32] Mr. Demaskie also placed a chain across the access road to the house and locked it. He states that the key to the padlock was under a stone on the ground where Mr. Hayward would be aware it was located. [33] Mr. Hayward states that he tried to go back to the property sometime after June 18 but could not open the chain or gain access to the house because it was boarded up. [34] Mr. Demaskie returned to the farm on Saturday, June 20 with Mike Wood and his brother Al Wood. He described the interior of the house as being in a filthy condition and in a total state of disarray. With the assistance of the Wood brothers he put Mr. Hayward's possessions, including some journals and books, into plastic garbage bags and moved them to an unheated shed that was covered by a roof but otherwise open. Photographs put in evidence show that the house was in disarray. This is hardly surprising given the haste with which Mr. Haywood left. However, other witnesses testified that the house was clean prior to June 2009. Certainly no one described it as filthy. [35] Mr. Demaskie says that the possessions were left in the shed for some time. He later noticed that they had been moved into a lean-to attached to the shed. He states he did not know who moved them. He says that he noticed that the books and papers were, as he put it, a bit damp. [36] Finally, on November 9, 2009 Mr. Demaskie arranged to move the possessions to a dry storage locker in Pemberton. On that date his counsel informed Mr. Hayward's then counsel that the goods were available for retrieval at the locker and provided a key for the locker. [37] A number of items were left on the farm, including a large bag of feather meal fertilizer and some pieces of farm implements. In addition, Mr. Bennett retained possession of a motorcycle until sometime in 2010, when it too was placed in the storage locker. [38] Mr. Hayward retrieved some of the items from the storage locker. However, by June 3, 2010 he still had a large number of items in the locker. On that date the storage company notified Mr. Hayward that as Mr. Demaskie was no longer paying the fees for the locker the goods would be disposed of. It appears from the evidence that the locker storage company discarded whatever was left in the storage locker shortly after that date. [39] I now turn to a consideration of each of Mr. Hayward's claims. I will deal with them in the same order that they are set out in the amended notice of civil claim. Claim for Specific Performance of Agreement to Transfer 3 Acres Containing Farmhouse [40] Mr. Hayward testified that Mr. Bennett agreed to transfer legal title to what he described as the Chef's Garden, consisting of the farmhouse and 3 acres of land surrounding it. His evidence was that Mr. Demaskie had originally promised that 10 acres would be transferred to him but that in the meeting in February 2008 he agreed to reduce the amount of land to 3 acres and Mr. Bennett agreed to transfer the Dodge pickup truck to him. Mr. Hayward stated that the promise of the transfer of this land was one of the main reasons he agreed to move to the farm. [41] Mr. Demaskie and Mr. Bennett deny that any such agreement was made. Mr. Bennett also resists the claim on legal grounds. He relies on the absence of any written agreement evidencing such an agreement. In addition he relies on the zoning of the property that would make any subdivision of the 3 acres impossible as the parcel created would be below the minimum size permitted under the applicable zoning. [42] In this case I have found it very difficult to rely on the evidence of any of Messrs Hayward, Bennett or Demaskie. Mr. Hayward often seemed to have only a tenuous grip on reality. In particular he seemed to have difficulty in distinguishing what actually occurred from what he wished had occurred. At times his evidence displayed delusions of grandeur, such as when he testified as to the prospects for his planned garlic farming operation. However, I found Mr. Demaskie to be argumentative and obsessed with justifying his conduct throughout this matter. His evidence suffered from an almost complete lack of objectivity. He displayed obvious animosity towards Mr. Hayward. For his part Mr. Bennett appeared anxious to distance himself from the events giving rise to this case. I have great difficulty in accepting that he was not fully aware of what was occurring on the farm. Further I have found his account of what transpired with respect to the cultivation of approximately 1 acre of garlic lacks credibility. He was particularly argumentative in giving his evidence, and openly displayed hostility to Mr. Hayward. [43] Nonetheless, on this issue I accept the evidence of Mr. Bennett and Mr. Demaskie. Apart from Mr. Hayward's oral evidence I can find nothing to support his assertion that Mr. Bennett agreed to transfer the 3 acre parcel to him. There were discussions about possibly providing land to Mr. Hayward if the farming venture proved successful but those discussions did not amount to any legally binding promise. [44] I also note that an early email exchange between Mr. Demaskie and Mr. Hayward on January 23, 2008 made express reference to a lease of 10 acres but made no mention whatsoever about the transfer of 3 acres. The tenor and content of this email exchange seems to me to be inconsistent with any underlying agreement to transfer 3 acres outright. [45] Accordingly I can find no credible evidence of any agreement to transfer the 3 acres and that claim is accordingly dismissed. Given my finding of fact I do not find it necessary to address Mr. Bennett's legal arguments on this issue. Claim for Transfer of the Dodge Truck [46] Mr. Hayward had originally sought damages for the failure of Mr. Bennett to transfer the Dodge truck to him. However in the course of his evidence he conceded that the only agreement he made with Mr. Bennett with respect to the truck was that Mr. Bennett agreed to sell it to him if they could agree on a price. Mr. Hayward did not allege that any agreement was reached on price. Accordingly, even on his version of events I can find no evidence of any binding agreement to transfer the truck and this claim is accordingly dismissed. Claim for Compensation for Improvements to Land [47] Mr. Hayward claims for compensation for improvements he alleges he made to Mr. Bennett's farm land. As I understand it the basis for this claim is that Mr. Hayward began the process of rehabilitating the farm and that his actions benefitted Mr. Bennett. The claim can therefore be characterized as one for quantum meruit. [48] The difficulty I have with this claim is the lack of any specific or credible evidence of Mr. Hayward having made any significant improvement to the farm. Mr. Hayward's evidence on this issue was very general and vague, except for his evidence with respect to the garlic patch. A number of independent witnesses testified that there appeared to be minimal farming activity being carried out by Mr. Hayward. There was no evidence before me to support the conclusion that Mr. Hayward was pursuing any organized or effective plan to improve the farm land. No doubt this was in part because of a lack of resources or any effective direction from Mr. Bennett. Nevertheless it is clear that little was achieved. [49] In assessing whether Mr. Hayward should be entitled to compensation for whatever efforts he did put into farm improvement I think I should take into account that he lived rent free in the farmhouse from February 2008 to mid June 2009. [50] Mr. Hayward had the burden of establishing this claim on the balance of probabilities. In my view he has failed to meet that burden and this claim must be dismissed. Claim for Production from Chef's Garden for 2009 [51] Mr. Hayward claims that he was wrongfully evicted from the farm on June 13, 2009. One of his claims is for specific performance of the Vegetable Lease. His remaining claims seek redress for that wrongful eviction. These claims require an analysis of the basis on which Mr. Hayward was occupying the farm and whether he was lawfully evicted from that occupation on June 13, 2009. I therefore turn to a consideration of these issues. [52] There is no question that Mr. Hayward was entitled to occupy the farm and the farmhouse at least until May 4, 2009. That was the date set out in the letter of April 19, 2009 letter demanding that Mr. Hayward leave the farm. That letter purported to terminate the Vegetable Lease for default. However, in my view, none of the grounds alleged in that letter provided any valid basis for termination of the Vegetable Lease. [53] The grounds of default set out in the letter were as follows: 1. You have not followed through on the directions contained in my correspondence hand delivered to you Nov. 21. 2008. Deadline of Dec. 31, 2008 was not met. 2. You have made an agreement with Mike Wood with respect to the garlic project currently underway without notifying me in writing of the terms of the agreement as per our lease. 3. You have provided a production budget to John Wood regarding the garlic project production planning without notifying me in writing as per our lease. 4. You have referred to yourself as "Farm Manager" of 2530 Blackwater Rd. in a document you dated Jan, 22, 2009 in direct contravention of 1. above. 5. These budgets and documents refer to the garlic project as an activity of WHVCORP, this is not true and contravenes our lease. 6. Failure to provide clear, consistent accounting for a majority of your activities associated with capital input I have provided you over the past year as per our lease. [54] Mr. Bennett's counsel was unable to refer to any term of the Vegetable Lease that was contravened by any of the alleged defaults. Indeed, it was only faintly argued that any of these alleged grounds would have justified terminating the lease. [55] The legal basis for resisting Mr. Hayward's claim to enforce the Vegetable Lease is that it is unenforceable because the parties did not reach agreement on an essential term, namely, the property to be leased. The Vegetable Lease purports to be a lease of 10 acres of Block A, DL 2683, Lillooet Land District, PID 013-608-240. However, this the legal description of the whole of the Bennett farm of over 100 acres. Counsel submitted that the parties never reached an agreement as to which 10 acres within the farm were to be leased. [56] I have concluded that Mr. Bennett's position on this issue is correct. The evidence in this case is that Mr. Hayward and Mr. Bennett had a fundamental disagreement over the nature of Mr. Hayward's rights under the Vegetable Lease. Mr. Bennett testified that he and Mr. Demaskie made numerous attempts to have Mr. Hayward designate the 10 acres he wished to lease but that he failed to do so. Mr. Hayward testified that his agreement with Mr. Bennett was that the 10 acres to be leased would be rotated throughout the farm as he rotated his crops. I was therefore left without any oral evidence or evidence relied upon as part performance that would allow me to determine what land was contemplated in the lease. [57] I reject Mr. Hayward's evidence that the agreement was that he was to be entitled to move the 10 acres with the boundaries of the farm. That evidence is inconsistent with the terms of the lease document. It is also inconsistent with the email exchange in January 2008 in which express reference is made to a 10 acre lease, within which 10 acres Mr. Hayward would rotate his crops. Such an agreement would have had the effect of preventing Mr. Bennett from utilizing the farm for his own purposes, and it seems to me inherently improbable that Mr. Bennett would have agreed to any such term. [58] In this case the parties clearly intended to create a legally binding lease. I think I should therefore make every effort to determine the true bargain between them and give effect to that bargain. However, I cannot make an agreement for the parties. The law is well settled that agreement on the land to be leased is an essential term of a lease. In this case I think I would be making and not interpreting the contract between the parties if I were to designate the lands that were the subject matter of the Vegetable Lease. In this regard see Courteney & Farbairn Ltd. v. Tolaini Bros. (Hotels) Ltd. (1975) 1 W.L.R. 297 and Fraser v. Van Nuys (1985) 22 D.L.R. (4th) 459. [59] The conclusion that there was no binding agreement for 10 acres of the farm does not however resolve all of the issues between the parties. As indicated above, Mr. Hayward lawfully occupied the farm and carried out farming activities on it with Mr. Bennett's express consent. The critical issue in this case therefore is what legal rights and obligations bound the parties with respect to termination of their relationship. [60] In his response to civil claim, Mr. Bennett alleges that the Vegetable Lease was only a conditional agreement, subject to the condition that the parties reach agreement on the 10 acres to be leased to Mr. Hayward. I do not agree with that characterization. In my view the parties intended to create a binding agreement and believed that they had done so. I think that the demand for and acceptance of rent by Mr. Bennett is inconsistent with the Vegetable Lease being only a conditional agreement. I also note that the April 19, 2009 notice of termination clearly is premised on the existence of a binding agreement. The position taken in that notice was that Mr. Hayward had breached the Vegetable Lease and that Mr. Bennett was terminating it for the alleged breaches. I find that Mr. Hayward moved to the farm with all of his possessions and devoted substantial effort to working the farm because he believed he had a binding lease. [61] I also find that Mr. Hayward did do at least some work for Mr. Bennett's benefit while he was on the farm. He repaired the old tractor on the farm and did considerable work to make the farm house habitable. He also clearly pursued the establishment of his own farm. I find that Mr. Bennett was aware of these activities and consented to them. [62] The situation in which the parties found themselves in the spring of 2009 was that Mr. Hayward was in occupation of the farm, was living in the farmhouse and was carrying out at least some farming activity on the farm property. He was doing so because he reasonably believed that he had a valid 10 year lease. Mr. Bennett was becoming increasingly frustrated by what he perceived to be a lack of responsiveness on Mr. Hayward's part. He had concluded that Mr. Hayward must be removed from the farm. [63] I must address what legal and equitable obligations bound the parties in view of these circumstances. I have concluded that the principles of proprietary estoppel are applicable to the facts of this case. [64] In Paul v Vancouver Airport Authority 2000 BCSC 341, Madam Justice Stromberg-Stein adopted the description of the various forms of estoppel set out in Hanbury & Martin, Modern Equity, 14th ed., (London, Sweet & Maxwell, 1993 ) at paragraph 74 of her reasons: 74 Hanbury & Martin - Modern Equity, supra at pp 878 - 881, is a useful guide in differentiating between the various forms of estoppel and the use of each: (i) Estoppel by Representation. Estoppel by representation operates over a wide field of common law and equity. The basic principle is that a person who makes an unambiguous representation, by words, or conduct, or by silence, of an existing fact, and causes another party to act to his detriment in reliance on the representation will not be permitted subsequently to act inconsistently with that representation. ... Apart from a few long-established exceptions, such an estoppel works negatively. It is not capable of creating a cause of action. It works like a rule of evidence, a rule which excludes a particular defence or line of argument... This is not to say that estoppel is available only to a defendant. A plaintiff may take advantage of the doctrine if he has an independent cause of action, and can show that the defence is inconsistent with a representation of the defendant on which he relies. ... (ii) Promissory Estoppel. The doctrine is expanded in equity, so as to include not only representations of fact, but also representations of intention; or promises. The doctrine came into prominence with the decision of Denning J. in Central London Property Trust Ltd. v. High Trees Ltd. in 1947, and became firmly established in later cases. Where, by words or conduct, a person makes an unambiguous representation as to his future conduct, intending the representation to be relied on, and to affect the legal relations between the parties, and the representee alters his position in reliance on it, the representor will be unable to act inconsistently with the representation if by so doing the representee would be prejudiced. ... But, consistently with estoppel by representation, promissory estoppel does not create a cause of action; it operates to give a negative protection. It is a shield and not a sword. (iii) Proprietary Estoppel. Distinct from the types of estoppel by representation previously explained is estoppel by encouragement or by acquiescence. This doctrine is applicable where one party knowingly encourages another to act, or acquiesces in the other's actions, to his detriment and in infringement of the first party's rights. He will be unable to complain later about the infringement, and may indeed be required to make good the expectation which he encouraged in the other party. Unlike other estoppels, therefore, this doctrine may, in some circumstances, create a claim, and an entitlement to positive proprietary rights. [65] The basis for the application of the doctrine of proprietary estoppel was restated and simplified in Taylors Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd., [1982] 1 Q.B. 133. That case was in turn quoted with approval by our Court of Appeal in Erickson v. Jones 2008 BCCA 379 [Erickson] at paragraph 54: 54 In Taylors Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd., [1982] 1 Q.B. 133 (Ch.), it was held that the five probanda set out by Fry J. in Willmott v. Barber are not necessarily appropriate in cases where the conduct relied upon has gone beyond mere silence and amounts to active encouragement. At p. 151 Oliver J. wrote: [T]he more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, L.R.1 H.L. 129 principle - whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial -- requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour. [66] Erickson makes it clear that proprietary estoppel is a flexible doctrine that may be invoked to provide a remedy in circumstances in which the enforcement of a legal right would give rise to an inequitable result. In each case the court is required to review the conduct of the parties as a whole to determine whether the outcome sought by the party asserting the legal right would produce an inequitable or unconscionable result. [67] In this case I have concluded that the right asserted by Mr. Bennett, that is, the right to evict Mr. Hayward from the farm on very short notice, has produced an inequitable result. The reality of the circumstances in which Mr. Hayward found himself in June 2009 were that he was committed to remaining on the farm at least until the conclusion of the 2009 growing season. He had paid the agreed rent for that period, had planted a garlic crop for harvest in that summer, and had had no opportunity to make any other arrangements for the growing season. I find that the manner in which Mr. Bennett proceeded to evict Mr. Hayward, including the lack of any effective notice, created a situation for Mr. Hayward that equity must remedy. [68] The law is well settled that I have great flexibility in fashioning a remedy once I determine that the elements necessary to establish a proprietary estoppel are present. In fashioning a remedy I must also strife to find the minimum equity to do justice to Mr. Hayward. Mr. Justice Groves of this court dealt with the appropriate approach to fashioning a remedy in Sykes v. Roseberry Parklands Development Society 2010 BCSC 227, aff'd 2011 BCCA 15, as follows: 78 In Halsbury's Laws of England, 4th ed. reissue, vol. 16(2) at para. 1092, the following is stated: The court has a very wide discretion in satisfying an equity arising under the doctrine of proprietary estoppel. The Court cannot, however, exercise a completely unfettered discretion according to the individual judge's notion of what is fair in any particular case. In the majority of cases the courts have satisfied the equity raised by estoppel by meeting the claimant's expectations, that is by granting him what he was promised or its monetary equivalent. 79 The process of granting relief in cases of proprietary estoppel has been described as finding the minimum equity to do justice to the claimant: Trethewey-Edge at para. 77. However, it is also apparent that the remedy granted by the Court must effectively satisfy the claimant's expectations. After reviewing the cases on point, Newbury J.A. stated the following principle in Trethewey-Edge: 84 I have mentioned these cases to emphasize the ability of the courts to fashion a remedy that will be appropriate but which also comports with the "minimum equity" doctrine: see Megarry and Wade, The Law of Real Property (6th ed., 2000) at Sec. 13-021. In this case and in this jurisdiction, where registration is all-important, it cannot be said that the trial judge erred in concluding that a registrable easement was an appropriate remedy. Given the fact that the District is a body corporate which was formed for the benefit of all landowners and their successors and assigns and which will continue on in perpetuity, I am satisfied that a licence, even an irrevocable one, would not have been sufficient to do justice between the parties. Such a remedy will not, however, be appropriate in every case, in the sense of being necessary to do justice between the parties. [69] Mr. Hayward had moved to the farm in the expectation that a lease agreement would be executed. The parties executed a lease agreement that they believed to be binding. Mr. Bennett had given Mr. Hayward permission to move to the farm. In his November 21, 2008 letter Mr. Bennett affirmed that Mr. Hayward could continue to occupy the farmhouse, albeit on a month to month basis. [70] It seems to me that Mr. Bennett's actions up to April 19, 2009 would have lead any reasonable person in Mr. Hayward's position to believe that he had the right to work 10 acres of land at least throughout the 2009 growing season. Mr. Bennett's November 21, 2008 letter clearly was premised on there being a valid lease for the 10 acres. While I have found that that was an incorrect premise I think that Mr. Hayward was entitled to conduct himself on the basis that Mr. Bennett recognized the validity of the Vegetable Lease. [71] In deciding what remedy is appropriate, I think it is relevant to consider the location of the property, the nature of the activities being undertaken, and the objective facts known to the parties with respect to the ability of Mr. Hayward to relocate. [72] I have already stated that the farm was in a remote location. Mr. Hayward was engaged there in farming, which by its very nature requires time for crops to mature. Mr. Hayward had also paid rent for the 2008 to 2009 period at a rate agreed between the parties. In addition, to Mr. Bennett's knowledge, Mr. Hayward had moved his farming inventory and equipment to the property. Mr. Hayward had only a limited capacity to remove his possessions from the property. At the time the notice of default was given he had only one small pickup truck available to him. [73] Another important factor in determining the remedy is the nature of Mr. Hayward's interest in the garlic crop planted in 2008. It is common ground that that garlic crop could not be harvested and marketed until late summer of 2009. For reasons that I will set out when I deal with the specific claim made for loss of the garlic crop I have concluded that Mr. Hayward did have an ownership interest in that crop. That was an interest that for all practical purposes he needed to occupy the land in order to care for and harvest. [74] In all of the above circumstances, and taking into account that Mr. Bennett had no immediate plans or use for the property I conclude that the minimum equity necessary to address this situation is to determine that Mr. Hayward was entitled to remain in occupation of the farm until October 31, 2009, the period for which he had paid rent. This would have permitted him to harvest any crops he had planted or was preparing to plant in the short 2009 growing season and to reap the benefits of the garlic growing operation. In my view Mr. Hayward's eviction prior to that date entitles him to damages. [75] I therefore think that Mr. Hayward is entitled to recover damages from Mr. Bennett for losses he suffered as a result of his premature eviction. [76] In this case I have rejected much of Mr. Hayward's evidence. Mr. Bennett submits that Mr. Hayward's conduct, including the exaggeration of the value of his assets and the amount he has lost from being evicted from the farm leads to the conclusion that I should deny him equitable relief because he does not come to court with clean hands. I do not think that Mr. Hayward should be denied equitable relief on the grounds put forward by Mr. Bennett. Mr. Bennett has not demonstrated that Mr. Hayward was not a competent organic farmer. He did exaggerate his accomplishments and the extent of his assets when giving evidence. However I am not convinced that he was deliberately trying to mislead me. I tend to think that he genuinely believed that he had greater skill and that his possessions were more valuable than they really were. [77] I also do not think that this conduct is sufficiently connected with the equitable relief I am granting to disentitle Mr. Hayward to that relief. The essential facts on which I am relying are set out above. They consist essentially on the reliance placed by Mr. Hayward on the existence of the Vegetable Lease and on his right to occupy the farm. [78] To return to the claim for loss of crops from the Chef's Garden, Mr. Hayward advances a claim for $110,000. He says that this is a reasonable estimate of the net revenue he would have earned from his market garden farming activities on the property in the 2009 season. However, he has failed to substantiate this claim. The evidence he sought to rely on seemed to me to be without any solid factual foundation. He was unable to produce any reliable evidence of what he had earned in 2008 from his activities on the property. I reject as inherently unreliable the estimates contained in the accounting he presented to me in evidence. He did not call any independent witness to substantiate his sales, nor produce any financial records, such as bank statements or deposit records, to give credence to his estimates. His 2008 income tax statement declared total income for 2008 of $1. [79] I note that Mr. Brown, an accountant, did assist Mr. Hayward in the preparation of an income statement for the period February 1, 2008 to January 31, 2009. This statement showed net revenue of $111,506.23 for that period. However the revenue figures were without objective substantiation. Mr. Brown testified that he reviewed Mr. Hayward's records to verify that Mr. Hayward did in fact engage in activities, such as farmer's markets, that could be expected to produce income for him. However, in my view these statements are based largely on speculation and cannot be relied upon to determine what revenue Mr. Hayward would have realized from market garden and seed production in 2009 had he been able to remain on the farm for the growing season. [80] Mojave Kaplan was called by the defendants to give evidence with respect to the income that she and Mr. Hayward earned from their joint efforts on a much more established farm near Lytton in 2006 and 2007. Her evidence was that at best they received gross income of approximately $1500 per market. This allowed them to earn about $200 each per market. This was however based on what was clearly a far more extensive farming operation and was supplemented by sales of Ms. Kaplan's baked goods. [81] A further difficulty for Mr. Hayward with respect to this claim is that a number of witnesses testified that there was very little evidence of crops having been started in 2009. Apart from the garlic planted the previous year there was no evidence called to support the presence of a viable market garden operation in 2009. [82] The onus is on Mr. Hayward to establish his actual loss with respect to this claim. However, in his February 21, 2009 email Mr. Demaskie concedes that Mr. Hayward netted $10,000 in profit in the 2009 growing seasons. It is also clear that Mr. Hayward was under considerable pressure from Mr. Bennett's campaign to evict him in 2009. This undoubtedly affected Mr. Hayward's ability to farm that year. I therefore think it reasonable to conclude he would have earned something in 2009 had he been left undisturbed. I assess this amount at $5,000. Claim for Chef's Garden Revenue for 2010-2011 [83] It follows from my conclusions that Mr. Hayward had no legal right to occupy the farm beyond September 15, 2009 that there is no basis for this claim. It is accordingly dismissed. Claim for loss of Mr. Hayward's Heirloom Seed Collection [84] Mr. Hayward testified that he brought a large and very valuable collection of rare and heirloom seeds with him to the property and that that collection was lost or destroyed when he was evicted from the farm. [85] This claim again is based almost exclusively on Mr. Hayward's uncorroborated evidence. No witness apart from Mr. Hayward testified that there was any substantial collection of seeds on the farm when Mr. Hayward was evicted. I also found Mr. Hayward's evidence with respect to his seed collection to be difficult to accept. He testified that when he was packing those of his possessions that he could fit into the 2 pickup trucks on June 14, 2009, he tried to collect what he considered to be the most valuable first. Despite this, he claims that he was unable to remove any such seeds from the farm. Mr. Hayward valued his seed collection at $273,863 as of June 18, 2009. However, there was no evidence that he made any specific effort to recover that collection after his eviction. [86] A further concern I have about this claim is that Ms. Kaplan testified that Mr. Hayward had only a very limited amount of seeds when they lived together and that substantially all of the seed inventory at their Lytton residence had been collected by and belonged to her. Finally, Mr. Hayward's claim is based in part on his seed collection weighing 1800 lbs. as of June 18, 2009. However, no other witness testified to having seen any substantial amount of seed on the property at any time. I note in this regard that neither witness called by Mr. Hayward to give evidence with respect to the events of June 13 to 14, 2009 testified as to any such quantities of seeds being present or of Mr. Hayward attempting to retrieve it. [87] Based on the above circumstances I am unable to find that Mr. Hayward suffered the loss of any material amount of seeds as the result of any act of Mr. Bennett or his agents. I also am satisfied that Mr. Hayward has greatly exaggerated the size and value of any seed collection that he did possess. Because of this I am unwilling to draw any inferences in his favour on this issue. Given my finding that there is no credible evidence of any material loss of seed inventory, I dismiss this claim. Claim for Specific Performance of the Lease of 10 Acres [88] I have already set out my reasons why this claim cannot succeed. It is accordingly dismissed. Claim for Recovery of Rents [89] Mr. Bennett has conceded that Mr. Hayward is entitled to a refund of some of the rent he paid for the 10 acres. In my view Mr. Hayward should have his damages in this case assessed on the basis that he was entitled to remain in occupation of the farm until October 31, 2009. This means that he will as a result of this judgment have the benefit of that term of occupation in my assessment of damages. An award refunding him rent would be double counting. Accordingly I do not think that I should order that any of the rent be refunded. Claim for Damages for Loss of Garlic Crop [90] I have already decided that Mr. Bennett wrongfully deprived Mr. Hayward of his right to occupy the farm until October 31, 2009. However the threshold question on this issue is whether Mr. Hayward had any ownership interest in the garlic crop. [91] I was presented with two directly opposing versions of the history of the garlic crop. Mr. Hayward testified and maintained that the garlic crop was his alone but that Mike Wood was lending him money to cover the expenses. However, in two 2009 emails to John Wood, Mike Wood's father, he described the relationship between Mike Wood and himself as a joint venture. [92] Mr. Bennett and Mr. Demaskie testified that the garlic crop was a joint venture between Mike Wood and Mr. Bennett and that Mr. Hayward had only a peripheral role in its production. Mr. Bennett stated that in 2008 Mike Wood suggested to him that he would like to pursue growing garlic on the farm. He stated in his direct examination that he reached an oral agreement with Mike Wood pursuant to which he would provide land for the garlic crop and Mike Wood would obtain the capital required for the project from his father. He produced a written agreement between himself and Mike Wood entitled the Garlic Farm Partnership. He testified that this document set out the terms under which the garlic was planted. The agreement is not dated. Mr. Bennett first testified that it was executed sometime in the winter of 2008/2009. [93] I cannot accept either version of the history of the garlic patch. It seems quite clear to me that Mike Wood had at all times a joint venture interest in the garlic crop. Based on the documentary evidence, and in particular email correspondence between John Wood, Kevin Demaskie and Mr. Bennett on the one hand and Mr. Hayward, Mike Wood and John Wood on the other I conclude that the garlic patch was initially a joint venture between Mr. Hayward and Mike Wood. John Wood provided Mike Wood with the funds necessary to commence the project. [94] I find that after John Wood had advanced a significant amount of money to his son he became concerned about his son's ability to see the garlic project through to completion. Matters appear to have come to a head in February 2009. By that point Mr. Bennett and Mr. Demaskie had concluded that Mr. Hayward must be removed from the property. The situation was summarized in the February 21, 2009 email from Mr. Demaskie to John Wood. It is quite clear from this email that by that date Mr. Bennett was aware that Mike Wood and Mr. Hayward had made an agreement to grow garlic pursuant to which they had planted approximately one acre of garlic in 2008. [95] I find that the Garlic Farm Partnership agreement relied on by Mr. Bennett was not executed until sometime in May 2009, after Mr. Bennett had delivered notice of termination of the Vegetable Lease. I also conclude that this agreement was the result of a series of discussions between John Wood and Messrs. Demaskie and Bennett in which it was decided that Mr. Hayward had to be removed from the farm. [96] I find that excluding Mr. Hayward from participating in the garlic crop was a significant motivating factor in Mr. Bennett's decision to remove him from the farm. I reject Mr. Bennett's evidence that he was a participant in the garlic project from the outset. I note that he made no assertion that he was a participant in that project in his April 19, 2009 notice of termination. It seems to me that the Garlic Farm Partnership agreement was motivated by John Wood's desire to recover his investment and by Mr. Bennett's desire to exclude Mr. Hayward from participating in the revenue from the crop. [97] These findings, coupled with my conclusion that Mr. Hayward was entitled to occupy the farm beyond the expected time for harvest, lead me to conclude that Mr. Hayward is entitled to damages for being excluded from participating in the revenue from the garlic crop. [98] Mike Wood was not called to testify in this trial. Mr. Bennett stated that he and Mr. Wood had had a falling out and that Mr. Wood had not provided an accounting of or shared any revenue from the garlic crop with him. However there is clear evidence that there was a significant crop for harvest in 2009. Mr. Bennett did not lead any evidence that the crop failed or was not harvested. On cross examination he suggested that Mr. Hayward should pursue Mr. Wood if he felt he had a claim to the proceeds of the crop. The defendant's evidence on this aspect of the case can usefully be contrasted to the detailed evidence led as to the lack of any other farming activity and the non existence of many items that Mr. Hayward claims he lost when evicted. [99] I conclude that Mr. Bennett cannot escape liability for the loss of the garlic crop revenue because Mike Wood did not account to him for it. By the time the crop was harvested it was in Mr. Bennett's control. In addition by that time Mike Wood and Mr. Bennett were partners in the garlic crop by virtue of the Garlic Farm Partnership agreement, and Mr. Bennett is bound by the actions of his partner. [100] The complete lack of evidence as to what financial results were ultimately realized from the garlic crop presents a challenge to an assessment of damages. However I did have the benefit of opinion evidence from Mr. Allan Kozak, who was qualified as an expert in the economics of cultivating organic garlic. [101] In his report Mr. Kozak addressed the revenue that a farmer could expect to receive from a one acre garlic patch. He prepared a number of scenarios based on the risks normally associated with growing garlic. His report assumed that one acre of land would support a crop of 64,000 garlic plants. These scenarios resulted in a range of net revenue from a gain of $23,098 to a loss of $40,380. [102] Mr. Hayward had significantly different expectations for the crop. He testified that there were at least 86,000 plants in the garlic patch. He also pointed out that he expected to be able to sell the bulk of his crop at premium prices in farmer's markets and as seed garlic. He also testified that he could provide a significant amount of the labour himself. [103] In this case I have concluded that there was a significant garlic crop available for harvest in 2009. The photographic evidence submitted by Mr. Hayward shows an apparently healthy and successful crop. As alluded to above, no one on behalf of the defendant gave evidence that the crop had failed. [104] I cannot however accept Mr. Hayward's estimate of the value of the crop. His estimate of revenue of $525,000 is wildly optimistic. Taking into account the evidence as to the condition and state of the crop, Mr. Kozak's opinion evidence and the prospect of Mr. Hayward being able to minimize production costs, I assess damages of $10,000 for the loss of the 2009 crop. In arriving at this figure I proceeded on the basis that Mr. Hayward would have had to reimburse Mr. Mike Wood for the amounts he advanced for the costs of the crop and would have had to split any net revenue equally with him. I also took into account the evidence that the crop planted was greater than the 64,000 plants used by Mr. Kozak in his modelling. I have balanced this consideration against the risks identified in Mr. Kozak's report to arrive at my conclusion on this issue. [105] Given my conclusion that Mr. Bennett was entitled to recover possession of the farm after the 2009 crop season, I do not find it necessary to consider any claim for damages beyond that time. Claim for Value of Assets seized from Mr. Hayward [106] Mr. Hayward has made a claim for the value of his assets and personal possessions that he alleges were seized and destroyed or damaged when he was evicted from the farm on June 13, 2009. [107] While there is some dispute over the details of what occurred on that date, Mr. Demaskie has admitted that he attended at the farmhouse and proceeded to board up all of the windows while Mr. Hayward was in the house. He did so for the express purpose of forcing Mr. Hayward to vacate the house. After Mr. Hayward left the property the next day, Mr. Demaskie removed all of Mr. Hayward's possessions from the house and stored them in a covered but open shed. Later these possessions were moved to a lean-to shelter where they were further exposed to the elements. Mr. Demaskie also acknowledged that he read passages from Mr. Hayward's personal diaries that were in the house on June 18, 2009. [108] I conclude that Mr. Hayward's occupation of the farmhouse was an integral part of the arrangement between him and Mr. Bennett. I do not think that Mr. Bennett could evict Mr Hayward from the farmhouse prior to the end of the time he was entitled to remain in occupation of the farm. Without being able to live in the farmhouse Mr. Hayward had no practical means of pursuing any farming activity on the property. Therefore I find that Mr. Bennett had no right to evict Mr. Hayward from the farmhouse on June 13, 2009. [109] In the defence evidence there was some suggestion that Mr. Hayward left the farm voluntarily. I reject that suggestion. It is quite clear that he was evicted, firstly by Mr. Demaskie's actions on June 13 and secondly by the boarding up of the door on June 18. [110] I am also satisfied that the acts of Mr. Demaskie, Mr. Bennett's agent, on June 13 and 18 constituted an act of trespass to land. Mr. Hayward was in lawful occupation of the farmhouse on both those dates. Mr. Demaskie's actions were clearly intended to and did deprive Mr. Hayward of that right of occupation. I assess damages for trespass to land at $5,000. These damages are directed at compensating Mr. Hayward for his eviction from the farmhouse. [111] As Mr. Demaskie had no right to evict Mr. Hayward, he had no right to take possession of his personal property. His interference with Mr. Hayward's personal property and effects constituted trespass to those goods. (See 384238 Ontario Limited v. The Queen in Right of Canada [1984] 1 F.C. 661, 8 D.L.R. (4th) 676 (FCA)). Mr. Hayward is entitled to damages for those acts of trespass. [112] I find myself in the same difficult position in assessing these damages as I did when attempting to assess other damage claims. Mr. Hayward has provided very little reliable evidence of the value of his personal effects and goods, the extent to which those goods were damaged or destroyed, or what was returned. He again presented a wildly exaggerated estimate of the value of his possessions. However, it is apparent that Mr. Hayward was deprived of the use of his goods for some period of time and that there was some damage done to at least his books and journals while they were in Mr. Bennett's control. [113] I am not satisfied that Mr. Bennett converted any of Mr. Hayward's property to his own use. However I am satisfied that his agents failed to take proper care of the property while it was in their possession. In this regard I note that the goods were not placed in a proper dry storage facility until November 2009 and that a motorcycle belonging to Mr. Hayward was not returned to the storage locker until the spring of 2010. [114] Mr. Demaskie and Mr. Bennett testified that they made efforts to contact Mr. Hayward after he left the farmhouse to allow him to return to retrieve the balance of his possessions. Mr. Hayward however says that when he returned to the farm he found that the gate was chained and he was unable to unlock the padlock securing the chain. He also testified that he could not gain access to the house because the door had been securely boarded shut. [115] I have some considerable concern with Mr. Demaskie's and Mr. Bennett's evidence on this point. They produced no documentary evidence to confirm that they made any efforts to communicate with Mr. Hayward. Mr. Demaskie stated that when he learned Mr. Hayward was in Whistler, he immediately went to the farm and boarded up the door to the house. He made no effort to accommodate Mr. Hayward's retrieval of his personal property at that time. While I can find no evidence that Mr. Bennett's agents intended to damage Mr. Hayward's possessions, they did treat them in a cavalier manner. I was given no explanation as to why they did not move them to a secure dry location until November. Mr. Bennett had no justification for keeping the motorcycle until 2010. [116] I find Mr. Demaskie's actions in reading through Mr. Hayward's private papers to be particularly troublesome. In my view Mr. Demaskie's actions clearly interfered with Mr. Hayward's possession and use of his property for a prolonged period of time. As I have already stated Mr. Bennett and Mr. Demaskie came into possession of Mr. Hayward's goods as the result of an unlawful act. [117] In all of the circumstances I assess Mr. Hayward's damages for trespass to his goods at $10,000. [118] Mr. Hayward also seeks an award of punitive damages. In Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, the Court reviewed and clarified the proper legal considerations to be taken into account in deciding whether punitive damages are appropriate and in assessing what amount should be awarded. More recently, our Court of Appeal considered the issue of punitive damages in a case of trespass in Bowen Contracting Ltd. v. B.C. Log Spill Recovery Co-Operative Assn., 2009 BCCA 457. [119] I do not think it necessary to review these cases in detail. They both make it clear that punitive damages are not to be awarded lightly. However, they are appropriate in situations in which the court is satisfied that the conduct of the defendant is worthy of punishment and the objects of deterrence and denunciation of wrongful conduct would be furthered by such an award. [120] In this case I have concluded that an award of punitive damages is appropriate. In my view Mr. Demaskie demonstrated a reckless disregard for Mr. Hayward's rights when he proceeded to board up all of the windows in a house that he knew Mr. Hayward was occupying. Mr. Demaskie acknowledged that his sole reason for doing this was to force Mr. Hayward out of the house by making it uninhabitable. There was no legitimate pressing need for Mr. Bennett to recover possession of the house on June 13, 2009. In the course of argument Mr. Bennett's counsel was unable to give any reason why Mr. Bennett did not seek an order for possession rather than resorting to self help. I need hardly add that Mr. Demaskie's actions carried with them the potential for a violent confrontation, which, fortunately was avoided. [121] As indicated above I am also very troubled by Mr. Demaskie's actions in reading Mr. Hayward's private papers. In so doing he seriously invaded Mr. Hayward's privacy and property rights. [122] In this case I have found myself unable to award any substantial amount of compensatory damages. I also have concluded that Mr. Bennett wanted to evict Mr. Hayward at least in part to deprive him of any benefit from his efforts on the garlic crop. While the Court in Whiten cautioned against the use of pejoratives to describe defendant's conduct in considering whether to award punitive damages, I do consider that the actions of Mr. Demaskie and Mr. Bennett in evicting Mr. Hayward and dealing with his possessions to be high handed and oppressive. [123] In all of the circumstances I consider that an award of $10,000 for punitive damages is appropriate in this case. [124] I therefore award Mr. Hayward damages of $40,000 made up as follows: (a) Loss of 2009 Vegetable production 5,000 (b) Loss of Garlic Revenue 10,000 (c) Trespass to Goods 10,000 (d) Trespass to Land 5,000 (e) Punitive Damages 10,000 $40,000 [125] Mr. Hayward is entitled to Court Order Interest on these amounts from June 13, 2009. [126] Mr. Bennett filed a counterclaim in this action. His counsel did not press it in argument. In my view the evidence did not establish any grounds on which the counterclaim could succeed. It is accordingly dismissed. [127] However, as Mr. Hayward has failed to establish any claim against the land beyond October 31, 2009, there will be an order directing that the Certificate of Pending Litigation registered by Mr. Hayward against the title to the farm property be discharged. [128] Mr. Hayward is entitled to his costs on Scale B. "The Honourable Mr. Justice Sewell"