4) The Action on the Case to Protect the Owner's Reversionary Interest

The emphasis in trespass to chattels, detinue, and conversion on the protection of possession or the right to immediate possession fails to address the interest of an owner without either possession or a right to immediate possession. That situation arises most frequently in respect of an unexpired bailment for a fixed term. In that situation, the bailor has neither possession nor a right to immediate possession. The action on the case to protect the owner's reversionary interest arises where the chattel has been destroyed or permanently damaged by the intentional or negligent act of the defendant. The classic authority is Mears v. London & South Western Ry. Co., [Note 142: (1862), 11 C.B.N.S. 850, 142 E.R. 1029 (C.P.).] where the defendant negligently caused serious damage to a barge that was owned by the plaintiff but leased to a third party. The plaintiff succeeded on proof of permanent damage to the plaintiff's reversionary interest. This action is rarely used in Canada because permanent damage or destruction most commonly arises, as it did in Mears, as a consequence of negligence and the action is brought in negligence.

5) An Illustrative Case: Penfold's Wines Pty. Ltd. V. Elliott

The High Court of Australia decision in Penfold's Wines Pty. Ltd. v. Elliott [Note 143: (1946), 74 C.L.R. 204 (H.C. Austl.).] provides an excellent illustration of both the discrete range of each of the nominate torts and the incomplete protection of chattels from intentional interference. In that case, the plaintiff sold its wine to customers in returnable bottles that remained in the ownership of the plaintiff. [Note 144: The words "This bottle remains the property of Penfold's Wines Ltd." were embossed on the bottles.] The defendant hotel keeper refilled some of these bottles with his own wine when customers brought them to him. The plaintiff objected to its bottles being used in this manner. In the absence of any general principle prohibiting the intentional interference with another's chattels, the plaintiff was obliged to fit the defendant's conduct into an established head of tort liability. This proved to be an impossible task.

The plaintiff could not sue in trespass to chattels. It had surrendered possession (but not ownership) of the bottles to its customers who had temporarily given possession of them to the defendant for the purpose of filling them with wine. Detinue did not apply because the plaintiff had made no demand of the defendant for its bottles. The defendant was not liable in conversion. He had not acted in defiance of the plaintiff's ownership rights, nor was the use of the bottles to hold wine a sufficient interference with the plaintiff's chattels to warrant a forced judicial sale to the defendant. The action on the case to protect the owner's reversionary interest was not available because the bottles had not been damaged or destroyed. The High Court concluded that the defendant's actions were not tortious.

6) The Recovery of Chattels

Only the tort of detinue holds out the prospect of recovering a chattel. The other torts are remedied in damages. This deficiency in the common law has been overcome, to some degree, by the use of replevin and the self-help remedy of recaption of chattels.

a) Replevin

Replevin is not a tort. It is a procedure that permits the speedy and effective recovery of a chattel subject to an ultimate judicial resolution of the dispute. The general idea is to maintain the status quo ante until the matter can be judicially resolved. In all provinces, there are either statutes or rules of court which outline the procedure and the requirements that must be met to secure an order of replevin. Normally, a plaintiff with a right to immediate possession must allege that the chattel was wrongfully taken, or wrongfully detained, by the defendant. The court may then order seizure of the chattel and its return to the plaintiff. The plaintiff may be ordered to post security to protect the defendant from any loss if the plaintiff's claim turns out to be without merit. The recovery of the chattel is followed by a hearing of the claim on the merits and a final determination is made of the respective rights of the litigants.

b) Recaption of Chattels

The law recognizes a limited right of self-help in the recovery of chattels. A person who has a right to the immediate possession to a chattel, which is stronger than the right of the person in possession, may, without legal process, physically take back the chattel. There is uncertainty, however, as to extent of the wrongdoing that the law will tolerate to achieve the recaption of a chattel. The recaptor may find it necessary to use physical force or intrude onto the land of the recaptee to get his chattel back and consequently may be faced with an action for battery or trespass to land brought by the recaptee. There is not a lot of authority dealing with this issue. This is not surprising given the extralegal nature of the process and the wrongful act of the recaptee in taking or retaining the chattel.

Understandably, there is some reluctance in permitting physical force (a battery) to be used to recapture chattels. Nevertheless, a person may use reasonable force to recapture a chattel that has been wrongfully taken from him. [Note 145: There is authority in Ontario that suggests that physical force is not permitted in any circumstances: see Ontario Law Reform Commission, Study Paper on Wrongful Interference with Goods by R.L. Simmonds & G.R. Stewart, with the assistance of D.P. Paciocco (Toronto: Ontario Law Reform Commission, 1989) at 69ff.] If, for example, an owner sees a person stealing his bicycle, he may use reasonable force to get it back. If the owner was not permitted to do so, he may never see his bicycle again and he may be left bereft of any effective remedy. Greater licence is given in respect of trespass to land. Chattels are commonly on the land of the recaptee and the recaption remedy would be unduly restricted if the recaptor was not permitted to enter the land to get them back. The recaptor may trespass on the land to recapture a chattel that was either wrongfully taken from him or, where the possession of the recaptee was initially lawful, a request for its return has been denied, provided that the entry is peaceable, and the recapture is carried out without any breach of peace. [Note 146: Devoe v. Long, [1951] 1 D.L.R. 203 (N.B.S.C. (A.D.)).]

7) Defences

The defences to the intentional interference with chattels largely mirror the defences that are applicable to the other intentional torts. The defence of consent and that of legal authorization are most commonly raised. The sale, bailment, and gift of chattels are all consent-driven transactions that defeat any action for conversion. Legal authority arises frequently in the administration of the criminal law. In very narrow circumstances, necessity may also be available.

8) Distress Damage Feasant

A special self-help remedy known as distress damage feasant may justify a defendant's refusal to deliver up a chattel to the person with a right to immediate possession to it. An occupier of land may seize a chattel that is unlawfully on his land and has caused or is causing damage. The requirement of damage is essential because the power to seize the chattel is given solely for the purpose of securing payment of compensation for the loss caused. The remedy is most commonly associated with the impoundment of trespassing cattle that have caused damage to crops but it is not restricted to that situation. It may apply, for example, in respect of damage caused by an aircraft that makes an unauthorized landing on the occupier's land. The chattel must be on the land at the time of seizure and there is no right of sale, merely a right to retain the chattel until the compensation is paid.

CHAPTER 4, INTENTIONAL TORTS