Indexed as:

Rounds v. Canada

Between

Sharon Rounds, Clarence Rounds, Glen Rounds, 533253 Ontario

Limited and Lakeside Elevators Retail Limited, appellants

(plaintiffs), and

Her Majesty the Queen in the Right of Canada, respondent

(defendant)

[1998] F.C.J. No. 616

[1998] A.C.F. no 616

227 N.R. 70

79 A.C.W.S. (3d) 1056

Court File No. A-172-96

 Federal Court of Appeal

 Toronto, Ontario

Stone, Linden and Robertson JJ.

Heard: May 7, 1998

 Oral judgment: May 7, 1998

(4 pp.)

Torts -- Trespass -- Trespass to goods, trespass -- Illegal seizure.

Appeal by the plaintiffs from trial judgment dismissing their action for trespass. The action resulted from a search and seizure by police.

HELD: Appeal dismissed. No trespass or other tort was committed. Even if there had been a technical trespass, that was terminated by the demand which was made shortly thereafter. The police officers acted in good faith and not unreasonably.

Counsel:

Raymond G. Colautti and Joe Rochon, for the appellants.

Dale L. Yurka, for the respondent.

The judgment of the Court was delivered orally by

1 LINDEN J.:-- Despite the forceful argument of Mr. Colautti and the unfortunate circumstances surrounding this case, we are not persuaded that the Trial Judge erred in reaching the conclusion he did.

2     We are of the view that the principles enumerated in Ronald Elwyn Lister Ltd. v. Dunlop Canada Ltd. [1982] 1 S.C.R. 726, do not extend to cover the situation in cases such as this where there is no debt involved and where the property is not owned by the person subject to the seizure.

3     We are also not convinced that there was a trespass nor any other tort committed here, save for the so-called "technical trespass" which the Crown conceded and which the Trial Judge found had been terminated by the demand which was made shortly thereafter. In the words of Chief Justice Dickson, "The validity of a search should not depend on the minor details of the actual physical process of execution". (See R. v. Strachan [1988] 2 S.R.C. 980, at p. 998). We have some doubt whether, in the light of the words of Mr. Justice Sopinka in R. v. Evans [1996] 1 S.C.R. 8 at p. 17, there was even a "technical trespass" committed, for as he pointed out, "the common law has long recognized an implied licence for all members of the public, including the police, to approach the door of a residence and knock". On the facts as found by the Trial Judge, the police officers acted in good faith and not unreasonably in the circumstances.

4     There is no res judicata in relation to any of the circumstances or the criminal or other proceedings that have taken place in this matter. Any conclusions and statements in such proceedings, although certainly worthy of respect, are not binding on this Court. The standard of proof in criminal cases is quite different than it is in civil cases such as this one.

5     The findings of fact in relation to causation of damage, which were made by the Trial Judge, are unimpeachable.

6     This appeal will be dismissed without costs.

LINDEN J.

cp/d/hbb/DRS