Claim No: 10-331323
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Beals v. Katies Tailors, 2010 NSSM 80
BETWEEN:
CAROL BEALS
CLAIMANT
- and -
KATIES TAILORS
DEFENDANT
______________________________________________________________________________
DECISION
______________________________________________________________________________
DATE OF HEARING: August 10, 2010
DATE OF DECISION: August 27, 2010
PLACE OF HEARING: Dartmouth, Nova Scotia
HEARD BEFORE: Patrick L. Casey, Q.C.
Small Claims Court Adjudicator
COUNSEL: Carol Beals, appeared on her own behalf
Katie Yu, on behalf of the Defendant
(1) The Claimant, Carol Beals (“Beals”), claims from the Defendant, Katies Tailors, the sum of $1,069.00.
(2) The basis for the claim is stated as follows in the Notice of Claim: “Eight outfits were ruined by Katies Tailors. They were for a client for a wedding.”
(3) The Defendant has filed a Defence disputing the claim and the relevant part of the defence states as follows: “The work was professionally done by myself with attention to detail and done correctly. I have twenty years experience.”
(4) Beals runs a home-based business known as Beals Wedding Apparel and Treasures. She sells suits, shoes and bridal apparel.
(5) On April 26, 2010, her husband, Glen Beals, brought eight pairs of pants to the Defendant’s premises for the pant legs to be hemmed.
(6) On Saturday, April 30, 2010, Glen Beals attended at the Defendant’s premises to pick up the eight pairs of pants. He paid $62.00 to the Defendant for her services and left with the pants.
(7) Sometime after Glen Beals had picked up the pants, Beals went to the Defendant’s premises with the pants to express her dissatisfaction with the work that had been done.
(8) The sequence of events after that is somewhat confusing but it included the following; Beals stated to Katie Yu (“Yu”), the proprietor of the Defendant, that the pant legs had been “burnt” and that the work was not done properly. Beals asked Yu to fix the pants, Yu denied that anything was wrong but offered to refund the money and Beals demanded that she be paid $75.00 for each pair of pants as they had been ruined.
(9) Beals alleges that Yu at one point threw the money that had been paid for the work at Beals. Yu denies this. Beals called 911 and the police arrived.
(10) I accept, based on the evidence provided, that the cost of each of the eight suits (each suit consisting of a pair of pants and a jacket) was $124.05 US including duty and brokerage fees or a total of $992.42 US for eight suits. This is the amount that Beals is seeking from the Defendant.
(11) Based on the evidence provided I make the following additional findings:
(a) Glen Beals did not provide any particular instructions to the Defendant other than to hem the pants and ensure that the serger machine was used.
(b) The serger machine was used by the Defendant to trim the seam so that it would not fray.
(c) Yu used an invisible seam machine for hemming two of the pants and sewed the other six by hand. She used a steam iron but there is no proven evidence of burn markings on the pants.
(d) No problems were noted by Glen Beals when he picked up and paid for the work that had been done.
(12) The Claimant must prove on a balance of probabilities that the Defendant was negligent in the performance of her duties or breached the terms of the oral contract between the parties. The burden on the Claimant is to establish the duty of care, that the Defendant breached the duty of care and that damages resulted from the breach (Obhavji Estate v. Woodhouse (2003) SCC 69 (Supreme Court of Canada )).
(13) In the absence of specific evidence outlining the standard of care required in any particular case, unless there is an act or omission such that an ordinary person would easily be able to recognize the negligence, then the Claimant may not succeed (Shaak v. McIntyre (1991) CarswellBC 1783).
(14) In this case, the Claimant did not provide independent evidence in a number of areas including the following:
(a) The standard of care expected of a tailor when hemming pants, commonly referred to as the “industry standard”;
(b) Whether the work done in this case fell below the industry standard;
(c) Whether the problem could be remedied by another tailor and, if so, the cost of remedying the problem; and
(d) The value of the suits in their present condition, keeping in mind that neither the jacket or the pants had ever been worn but also taking into consideration that the pants had been hemmed.
(15) I conclude that the suits must have some value in their present condition. They are not worthless.
(16) The Defendant described the normal process of doubling up the fabric underneath and then putting the hem line across it and she stated that this will always leave traces of an outline of the hemline on the outside of the pants. This makes eminent sense to an uninformed observer. Nothing out of the ordinary was noticed by Glen Beals when he picked the pants up from the Defendant. Ms. Philibert, who was called as a witness on behalf of the Defendant, testified that she was present while the incident between Yu and Beals was ongoing and could not understand the problem and she thought that the pants looked fine.
(17) Ms. Philibert acknowledged, however, and it is evident from examination of the pants that there are signs of a visible thread on several of the pairs of pants, which therefore do not appear to be hemmed properly.
(18) Beals is not claiming loss of profit and has not provided evidence of loss of profit in any event, although she alleges that the suits were to be sold for persons who were attending a wedding shortly after. There is no evidence that customers found the suits to be unfit or refused to wear them at the wedding.
(19) In summary some of the suits have visible defects, however, others do not, at least from the observations of the Court and the evidence provided. No objective evidence was tendered which would establish industry standards or assist the Court in determining whether the Defendant followed the usual practice in this case. I am unable to conclude that the Defendant sewed or ironed the pants in an improper manner except for the visible thread on several pairs of the pants as noted. I find that she used the serger and there is no evidence that she did not follow the explicit instructions provided to her. There is no evidence of loss of profit and there is no evidence of cost of repair.
(20) This leaves the Court with no other option but to “ballpark” the Claimant’s damages in this case.
(21) Based on the evidence provided the best estimate of damages is $100.00.
(22) The Defendant shall pay to the Claimant the sum of $100.00.
(23) Each party shall bear their own costs.
Dated at Dartmouth, Nova Scotia,
on August 20, 2010. ______________________________
Patrick L. Casey, Q.C., Adjudicator
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Court FileClaimantDefendant |
Form 7(c) - Order In the Small Claims Court of Nova Scotia
Claim No: 10-331323
BETWEEN:
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Name |
CAROL BEALS |
Claimant |
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Address |
55 Beals Crescent, Dartmouth, Nova Scotia, B2Z 1A3 |
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Phone |
902-462-8423 |
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Name |
KATIES TAILORS |
Defendant |
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Address |
99 Main Street, Dartmouth, Nova Scotia, B2X 1R4 |
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Phone |
902-463-1328 |
On August 10, 2010, a hearing was held in the above matter and the following Order is made:
The Defendant shall pay to the Claimant the sum of $100.00.
Each party shall bear their own costs.
Dated at Dartmouth, Nova Scotia,
on August 27, 2010. ______________________________
Patrick L. Casey, Q.C., Adjudicator
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