Claim No. SCCH 281014
Date:20070919
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Bourque Security Services v. Rockingstone Developments Inc.,
2007 NSSM 73
BETWEEN:
3085036 NOVA SCOTIA LIMITED, carrying on business
BOURQUE SECURITY SERVICES
Claimant
‑ and ‑
ROCKINGSTONE DEVELOPMENTS INC.
Defendant
DECISION AND ORDER
Adjudicator: David T.R. Parker
Heard: August 7 and August 8, 2007
Decision: September 19 , 2007
Counsel:
Angela A. Walker represented the Claimant
Jasmine Ghosn represented the Defendants
PLEADINGS
(a) The Claim
The Claimant has claimed for services provided by the Claimant to the Defendant and failure to pay for same in the amount of $7,972.88.
(b) The Defence
The Defendant alleges that the contract was for security and cleaning services which were not performed as required and the Claimant failed to ensure their staff was qualified or willing to do the work required. The Defendant amended its pleading at the beginning of the proceedings to claim $4,000.00 plus HST being the cost to have cleaning completed by others when the Claimant did not do the cleaning it was responsible for under the Agreement with the Claimant. The Defendant also claimed $1,000.00 for damage done to its property by the Claimant's employees plus an additional $5,000.00 as a set‑off when the Claimant's security staffs were not present at the job site.
The Defendant was constructing a building on its property and was in need of guards to protect their property. The Defendant contacted the Claimant as they were a security service. At the time they were hired the Defendant required some heavy clean up and the Claimant hired some extra people to assist in this task on the Defendant's building. The Claim was for services rendered and the Defendant has withheld money for those services. As Christine Cahill, President of the Defendant Company, said, "They provided security services. They were not cleaning up that was the issue ‑ also they were not showing up."
The original purchase order which was held out to be the contract by the Claimant was for security services at $12.50 per hour plus HST. Subsequent invoices by the Claimant at the beginning make a notation on the invoice "Security/Clean up."
I accept as fact that the Claimant was hired to provide security services. That was the reason the Defendant wanted them on the premises. The Claimant agreed to help with the first few days they were at the premises with the Defendant's cleanup, as the project manager asked for a hand in cleaning up the site. The Claimant agreed as he believed the Defendant project manager "was between a rock and a hard place" and as a result brought in its traffic control group to specifically clean up.
I accept the Claimant's witnesses' evidence that when Peter, the project manager, later asked for clean up he was told on several occasions that "we only do light clean up and only if the guards agree." The project manager was told "only if guards wanted to and whatever you want done you have to tell them every night and if they do it they do it, if not they won't do it."
There is no doubt the guards were doing light clean up but I am convinced they did it not as part of any contractual obligation and that the project Manager was advised it was on a voluntary basis only. It would appear this stopped when one of the guards was asked to do heavy labour beyond his shift and was not paid for same.
With respect to the vapour barrier damage the Defendant's president confirmed, "I wasn't there, there was no conclusion to it because we could not figure out what happened." There is no proof that the Claimant damaged the vapour barrier as claimed or that the damages were as claimed. With respect to the guards not being on duty, the Claimant had a mechanism in place to check on the guards and when a guard was late or not there, the Defendant was not charged or a replacement was put in place. The Claimant shall succeed in its claim. There is no support for any counterclaim and that is dismissed.
IT IS THEREFORE ORDERED that the Defendant pay the Claimant the following sums:
$7,972.88
160.00 Court costs
$8,132.88
AND FURTHER the counterclaim against the Claimant is dismissed
Dated at Halifax, this 19 day of September, 2007.
__________________________
David T.R. Parker
Small Claims Court Adjudicator