Claim No: 264884
Date:20070713
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: TG Industries Ltd. v. Vincent, 2007 NSSM 56
BETWEEN:
|
Name |
TG Industries Limited |
Claimant |
|
|
|
|
|
|
|
|
|
Name |
Donald Vincent and All Star Ready Mix Ltd. |
Defendants |
|
|
|
|
|
|
|
Revised Decision: The text of the original decision has been revised to remove addresses and phone numbers of the parties on September 18, 2007. This decision replaces the previously distributed decision.
DECISION
THE PARTIES
(1) The Claimant is TG Industries Limited (T.G.). Jack Goldston (Goldston) is part owner of the Claimant and acted on behalf of the Claimant in this proceeding.
(2) There are two Defendants named in the Notice of Claim, Donald Vincent (Vincent) and All Star Ready Mix Ltd. (All Star).
(3) The parties agreed at the outset and the evidence confirms that Vincent bears no personal responsibility in this case and the Claim against him is hereby dismissed.
(4) All Star was sold to a new company known as Metro Slinger Services Ltd. (Metro), and the parties also agree and it is confirmed by the evidence that if there is any liability, it shall rest with the corporate entity, Metro. Vincent is an Officer and Director of Metro.
THE PLEADINGS
(5) The Claimant claims the amount of $6,529.07 for payment of services rendered in regards to parts and labour with respect to the Defendant’s vehicle.
(6) The Claimant also seeks interest and costs.
(7) The Defendant, in its Defence, acknowledges receiving services from the Claimant but states that the negligence of the Claimant caused the Defendant to suffer damages.
(8) The Defendant Counterclaims against the Claimant for losses sustained when one of its vehicles was repaired in a negligent manner. The total amount being claimed by way of the Counterclaim is $11,970.00 plus interest and costs.
THE CLAIM
(9) The Claimant has proven the merits of the Claim, and I find that the sum of $6,529.07 is owing pursuant to the evidence provided by the parties to this proceeding. There was an admission to this effect in submissions on behalf of the Defendant. This amount is net of a credit of $345.00 applied to the account for towing charges arising from the incident from which the Counterclaim arises.
THE CIRCUMSTANCES FROM WHICH THE COUNTERCLAIM ARISES
(10) The Counterclaim arises from an incident which occurred in July 2004.
(11) The Defendant brought one of its vehicles to be repaired by the Claimant around the middle of July. The vehicle was repaired by the Claimant and picked up by an employee of the Defendant the following morning.
(12) The problem was diagnosed as a leaky pinion seal by the Claimant. Repairs were effected prior to the vehicle being released to the Defendant.
(13) The vehicle was then brought to the Defendant’s premises, however, it was still leaking oil. Witnesses described that there was a puddle of oil on the ground. Oil was streaming from the rear-end according to the witness, Ken Regan (Regan).
(14) Vincent contacted Kim Fader (Fader), the Service Manager for the Claimant, by telephone, and a conversation ensued between them.
(15) Vincent complained to Fader that the vehicle was still leaking oil, even though it had just been brought to the Claimant for repairs.
(16) Fader said that he would send a mechanic out right away. A mechanic was sent out and the leak was investigated.
(17) Vincent was quite upset as concrete had been loaded into the vehicle and there was a job in Herring Cove that had to be completed.
(18) As the mechanic was not called to testify, it is not clear exactly what was found upon his investigations or what other conversations may have taken place subsequently, however, there was at least one more phone call between Vincent and Fader.
(19) The gist of the second phone call was that the vehicle was still leaking oil. Vincent was complaining that they needed the truck and that they couldn’t afford to tie it up.
(20) I accept the evidence of Fader that Vincent was told that it was their decision whether to use the vehicle or not. Fader advised Vincent that if it was just a leaking seal, that the vehicle would be safe to use but if it were something more serious, it might not be.
(21) It is clear from the evidence that Vincent was aware of the risks of taking the vehicle. He specifically stated in his evidence, “I was taking a chance 50/50". Both Vincent and Regan testified as to statements that the mechanic made to them concerning the condition of the vehicle after he had viewed it, however, I accept Fader’s testimony as to what was stated during the second phone call with Vincent, namely, that he made it known to Vincent that there was a risk. Vincent proceeded as he did despite the warning which Fader had provided.
(22) Subsequently, it was discovered that in fact the cause of the leak was a failed pinion bearing not just the seal.
(23) Several meetings then took place between Vincent, Fader, and Goldston. Vincent withheld payment once invoiced for the repair bill.
(24) In fact, payment was withheld not only on that bill but on other bills being invoiced to the Defendant by the Claimant.
(25) The invoice for the repair work which is the subject matter of the Counterclaim was in the amount of $6,085.10. The invoices for which the Defendant withheld payment subsequent to August 2, 2004, are the invoices which are the subject matter of the claim. The invoice for the repair work, which is the subject matter of the Counterclaim, was actually paid on December 23, 2004.
ANALYSIS
(26) The Claimant had been doing work on the Defendant’s vehicles on an ongoing basis over a period of time. With this one exception, the Defendant was generally satisfied with the services of the Claimant.
(27) There is an implied term in a contract for service repair that the work will be performed in a good and workmanlike manner.
(28) In this instance, the problem was misdiagnosed by the Claimant. The Claimant’s mechanic diagnosed the problem as a leaky seal whereas the problem was with the bearing.
(29) I find in this case, therefore, that the Claimant has breached this implied term.
(30) I find, as well, however that Vincent was clearly told by Fader that there was a risk that if the problem were more serious than a leaky seal, that the vehicle could fail. Vincent was aware of and accepted this risk when he sent the vehicle to the job site.
(31) Had the Defendant sent the vehicle back to the Claimant’s shop for repairs immediately, then the Defendant would still have incurred damages in relation to the job in Spryfield, however, the damages may not have been the same as what is being claimed in the Counterclaim. The specific amounts being claimed in the Counterclaim are as follows:
(a) A cement pump truck had to be used to remove the concrete from the disabled concrete mixer and pump it into a replacement concrete mixer.......................................................................... $450.00
(b) Another cement mixer was used to receive the cement from the disabled cement mixer $195.00
(c) The disabled cement mixer was towed to the Defendant’s shop for repairs....................
...................................................................................................................... $345.00
(d) The spoiled concrete was removed and disposed of, both from the disabled cement mixer and from the job site by another contractor................................................................................... $4,500.00
(e) Concrete was lost in the disabled cement mixer and from the job site and concrete was used to replace the entire job (the entire job was done over again by the Defendant............................. $6,480.00
TOTAL................................................................................................................. $11,970.00
(32) Copies of invoices were not provided by the Defendant for many of the costs outlined in the Counterclaim.
(33) George Bellefontaine (Bellefontaine) testified that he runs a construction company and he was called by the Defendant to clean up and remove concrete from the job site in question. He did not bill the Defendant for his services but testified that his cost was $4,500.00 to send men and machines over and dispose of the cement. He states that he kept records but did not bring the records to Court with him. The evidence was that he and the Defendant were trading off their services to one another.
(34) Although the Defendant stated that it was necessary for him to do the entire job over again and he did not get paid for the job, no evidence was provided concerning the contract price for that specific job.
(35) In submissions on behalf of the Defendant, it was suggested that they would have produced additional information concerning various costs had they been requested to do so by the Claimant. As well, the Court was asked to draw an inference from several factors, including that the mechanic was not called to give evidence by the Claimant, and the Defendant withheld payment on other invoices after August 2, 2004, which is the date of the invoice for the services rendered in this particular case.
(36) The burden of proof with respect to the Counterclaim, however, rests on the Defendant to prove the damages, if any, on a balance of probabilities.
(37) I conclude from the evidence that Vincent was indeed upset after receiving the invoice, and he did withhold payment on subsequent invoices, presumably as some form of protest and, at some point, there was a discount provided for the towing charges. This was apparently not satisfactory as the Defendant continued to withhold payment on other invoices and refused to pay them, despite collection efforts by the Claimant.
(38) Although an inference could be drawn from Goldston’s refusal to provide a copy of the subject invoice to the Defendant during this proceeding as the Defendant had misplaced their copy of the invoice, nevertheless, I do not view this as an admission of liability on behalf of the Claimant or as circumstances from which it can be concluded that it has been proven that they are solely liable for the damages.
(39) Upon examination of each of the amounts being claimed in the Counterclaim, after consideration of all of the evidence, and keeping in mind the burden of proof on a balance of probabilities being on the Defendant (the Claimant by Counterclaim) and in consideration of the finding of breach of the implied term by the Claimant and acceptance of risk on behalf of the Defendant as outlined earlier, I find for the Defendant in the following amounts with respect to the Counterclaim:
(a) $450.00 - I accept that this is the amount that would have normally been billed to customers for services of this nature and, further, that once the vehicle was disabled, the concrete would have to be removed from it and pumped into a replacement mixer. The Claimant is responsible for all of this amount or $450.00.
(b) $195.00 - I accept that this is the cost of the use of a cement mixer which was used in this case to receive the cement from the disabled cement mixer. The Claimant is responsible for all of this amount or $195.00.
(c) $345.00 - The Defendant has already been giving a credit for the towing costs. This portion of the Counterclaim is disallowed.
(d) $4,500.00 - The evidence in regards to this portion of the Counterclaim was generally unsatisfactory. Bellefontaine testified that he could have produced invoices but did not bring them to Court. The services were provided by way of a barter arrangement. Nevertheless, the Defendant did incur damages. Difficulty in assessing the actual
7
amount of damages is not a bar to an assessment. I will assess damages under this heading at $2,000.00 and find the Claimant responsible for one-half of this amount or $1,000.00.
(e) $6,480.00 - I am satisfied that the job in Herring Cove required 27 yards of concrete in total and had to be redone because of what had occurred. The Defendant assumed some risk of the truck failing when it sent the truck to the job site. No reliable evidence concerning the cost of concrete at the relevant time was provided in evidence. The cost is disputed by the Claimant. I will allow the sum of $4,000.00 under this heading and the Claimant shall be responsible for one-half of this amount or $2,000.00.
(40) Based on the above, the Claimant is responsible to the Defendant for the total amount of $3,645.00 with respect to the Counterclaim.
(41) The amount awarded to the Defendant in the Counterclaim shall be set off against the amount owing by the Defendant to the Claimant with respect to the Claim. The net result is that the Defendant shall pay the total sum of $2,884.07 to the Claimant.
(42) As both parties have been successful to some degree, I shall exercise my discretion not to award costs to either party.
Dated at Dartmouth, Nova Scotia,
on July 13, 2007. ______________________________
Patrick L. Casey, Q.C., Adjudicator
|
OriginalCopyCopy |
Court FileClaimant(s)Defendant(s) |