Claim No: 302842
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Phonsavatdy v. Ruggles Towing Ltd., 2009 NSSM 4
BETWEEN:
PHAILATH PHONSAVATDY
Claimant
- and -
RUGGLES TOWING LIMITED
Defendant
REASONS FOR DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Dartmouth, Nova Scotia on January 6, 2009.
Decision rendered on January 7, 2009.
APPEARANCES
For the Claimant Self-represented
For the Defendant Blair MacKinnon, counsel
BY THE COURT:
[1] The Claimant sues for the return of his vehicle which was towed by the Defendant on April 15, 2008, and has been in its yard ever since. He also claims damages. The Defendant counterclaims for towing and storage fees.
[2] On April 15, 2008 the Claimant was driving his 2000 CW Jetta in Dartmouth when he was stopped by the police at a random checkpoint and discovered to have no insurance and an expired Motor Vehicle Inspection sticker. The RCMP officer issued two summary offence tickets and, quite properly, advised the Claimant that the car could not be driven without insurance and that it would have to be towed. He advised him that he could have the car towed to his own property, as long as he was prepared to pay the towing fee; otherwise the car would be towed to the towing company’s yard and he would have to make arrangements to retrieve it there at a later time.
[3] The Claimant did not have money to pay for the towing and indicated that it would have to be taken to the towing company’s yard. It appears that the Claimant was a bit impatient as it took some time for the tow truck to arrive, and he left to catch a bus just as it arrived and was starting to tow his car. The Claimant testified that he did not notice which towing company the truck belonged to, and for that reason he had no idea where his car would be taken.
[4] I accept other evidence that the truck had the Ruggles name on it and was either seen, or could have been seen by the Claimant, had he chosen to look. Furthermore, he had the name of the RCMP officer on his tickets and could easily have inquired later as to the whereabouts of his car. In fact, the Claimant appeared to show no interest in knowing where his car was or in retrieving it until many months later, in September 2008, when he received a notice from Halifax Regional Municipality that his vehicle was coming up for auction under the authority of the Warehouseman’s Lien Act. The letter advised him that the car was at Ruggles.
[5] A notice from Ruggles came shortly thereafter indicating that the total amount owing was $5,237.55 representing the $75.00 towing charge, $4,560.00 in storage fees and the rest for HST.
[6] The Claimant went down to Ruggles and tried to bargain for a better deal. He offered to pay $1,000.00 at the rate of $200.00 per month, which was rejected by Ruggles. The Claimant asked to see his car and testified that he was prevented from seeing it. The manager of Ruggles, Karen Ruggles, stated that they do try to keep people out of the yard to prevent trouble, and perhaps for insurance purposes, but that the Claimant would not take no for an answer and got close enough to his vehicle anyway to take a picture of it. However, there was no trouble and the Claimant left and decided to commence this claim. Ruggles decided to hold off on auctioning the vehicle pending the decision of this court.
[7] Ruggles has a contract with Halifax Regional Municipality to perform towing services for the police, within a geographical boundary that included the place where the Claimant was stopped. As the manager testified, and I accept, the contract is put out to tender and specifies the storage price that it is entitled to charge, which under the current contract is $24.00 per day.
[8] The Claimant believes that this is an unreasonable price. On the face of it, a charge of $4,560.00 to store an automobile that may not even be worth that much is disproportionate, but the system is clearly not designed to be economical long term storage. The Claimant knew or ought to have known that allowing his car to remain at a towing company’s yard for months on end was a financially foolish thing to do.
[9] The Claimant had no good excuse for why he did not seek out his car and do something about it before the charges mounted to a ridiculous level. The fact that he had no money on the day he was towed is one thing. The onus was on him to find the money to bail out the car soon thereafter, or rethink whether he should be owning a car. Car ownership carries with it the need for some financial resources and responsibility.
[10] The Claimant based his claim in large part on the provisions of s.4 of the Warehousemen's Lien Act, which reads:
Notice of lien to owner of goods deposited by another
4 (1) Where the goods on which a lien exists were deposited, not by the owner or by his authority, but by a person entrusted by the owner or by his authority with the possession of the goods, the warehouseman shall, within two months after the date of the deposit, give notice of the lien to
(a) the owner of the goods; and
(b) any person who has an interest in the goods that secures payment or performance of an obligation and who has registered, before the date of the deposit, a financing statement relating to that interest in the Personal Property Registry pursuant to the Personal Property Security Act.
Form and content of notice
(2) The notice shall be in writing and contain
(a) a brief description of the goods;
(b) a statement showing the location of the warehouse where the goods are stored, the date of their deposit with the warehouseman and the name of the person by whom they were deposited; and
©) a statement that a lien is claimed by the warehouseman in respect to the goods under this Act.
Failure to give notice
(3) Where the warehouseman fails to give the notice required by this Section, his lien, as against the person to whom he has failed to give notice, shall be void as from the expiration of the period of two months from the date of the deposit of the goods.
[11] The Claimant says that the fact that the notice from Ruggles was not received until about five months after the car was towed, and not within two months, means that the lien is void.
[12] I disagree. Section 4 is intended to deal with the situation where a vehicle (or other goods) is seized by the authorities or is towed after being abandoned and where the owner is uninvolved in the process. The words “[w]here the goods on which a lien exists were deposited, not by the owner or by his authority” mean that this section does not apply where goods are deposited by the owner. The circumstances here were that the Claimant had a vehicle that was essentially disabled, for legal reasons, and he had to do something with it. It could not just be left at the side of the road. It was still his property, to do with as he directed, except that he could not drive it. The choice he was given was to tow it to a place of his direction (at his expense) or allow it to be stored commercially. He chose the latter. He may have felt like he had no choice, but he actually made a choice.
[13] It is my finding that Ruggles had no obligation to do anything but wait and see what happened, and if it appeared that the owner did not intend to redeem the vehicle, it could exercise the right to auction it off to cover fees.
[14] I find that the claim is wholly unfounded. Ruggles has acted entirely within its rights. The storage fee is a negotiated rate between itself and the municipality and is essentially the “going rate.” Of course four or five thousand dollars in storage fees seems disproportionate to what is involved, but no financially responsible person would fail to inquire as to what this was costing or fail to take steps to make other, more economical arrangements, once the cost was known. The Claimant authored his own misfortune.
[15] Accordingly, the claim is dismissed. The counterclaim is allowed. The Defendant is entitled to a judgment for the accrued storage and towing charges. There is an unexplained discrepancy between what is contained in the exhibits and what is in the counterclaim filed with the court. The latter does not contain a breakdown, and accordingly I am basing my judgment on the amount stated in the October 22, 2008 notice given to the Claimant which set the charges at $4,635.00 plus $602.55 in HST for a total of $5,237.55. I also allow the cost of filing the counterclaim which is $57.68. The total judgment on the counterclaim is accordingly $5,295.23.
[16] If the Claimant decides to satisfy this judgment at any time before the vehicle is auctioned, he may redeem it. Otherwise, the Defendant is free to auction the vehicle to attempt to recover its amount owing. Should there be a surplus or a deficiency, the matter should be properly accounted for and, if necessary, either party may apply to this court to consider the implications flowing from the sale.
Eric K. Slone, Adjudicator