IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: Leon’s Electrical Ltd. v. McCrillis-Sigmund, 2018 NSSM 45
SCC SN NO. 450908
BETWEEN:
LEON’S ELECTRICAL LTD
CLAIMANT
and
COURTNEY McCRILLIS-SIGMUND, LISA McCRILLIS
and MAURY McCRILLIS
DEFENDANTS
Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed.
REASONS FOR DECISION
BEFORE: A. Robert Sampson, Q.C., Adjudicator
DATE OF HEARING: Hearing held at Sydney, Nova Scotia on January 17, 2018
DECISION RENDERED: March 4th, 2018
APPEARANCES:
For the Claimant: Self-Represented – Leon Sampson/Wendy Sampson
For the Defendant: no appearance
BY THE COURT:
1. This is a claim relating to services rendered, namely electrical work to a residence situate at [address removed] Loch Lomond, Cape Breton, by the Claimant company to the Defendants. The court file reveals that this action was originated in Small Claims Court on May 3rd, 2016 and scheduled for trial on July 6, 2016. The court was later contacted by the Claimant, by letter dated June 1, 2016, asking for an adjournment to a later date. The court file confirms a new claim form was filed under the same court number on June 2, 2016, confirming a scheduled hearing date of originally September 21, 2017, later amended to October 11, 2017. The court records contain an affidavit dated September 19, 2016 given by John Leblanc, Provincial Civil Constable, confirming the circumstances whereby he attempted on several occasions to effect service on the named Defendant, Courtney McCrillis-Sigmund, without success. There is further correspondence in the court file indicating the Claimant’s request for some direction for service upon the Defendants, as it appeared they had returned to the United States.
2. This matter was first presented to me on the scheduled hearing date of October 11, 2017. On that date, the Claimant indicated that they were still experiencing difficulty in effecting service upon the then named Defendant. They presented John Leblanc’s affidavit in their request for an order for substituted service on either of Maury McCrillis or Lisa McCrillis (owners of the property where work was carried out), who they confirmed they had dealt with, together with their daughter Courtney McCrillis-Sigmund in connection with being contracted to complete the work which was the subject matter of the claim.
3. In their discussion with the Court they also identified the fact that they believed that both Lisa McCrillis (the owner of the property) and her spouse, Maury McCrillis, who are the parents of Courtney, should also be responsible for their account as they had dealt with all three in connection with providing their original estimates of work and being authorized to proceed with carrying out the work. They confirmed to the court that they had email exchanges confirming this, in addition to multiple meetings with all three leading up to their entering into a contract to provide the services.
4. The Court advised the Claimants that if they felt their contract of engagement was with others as well, and provided once the hearing takes place they can prove the same, it would be necessary for them to amend their claim to include any additional Defendants and effect service on all Defendants. The Claimants verbally confirmed their intention to amend their Claim to include both Lisa McCrillis and Maury McCrillis. Their request, at this juncture, was a request for an order for substituted service upon Courtney McCrillis-Sigmund. The court was satisfied from the representations made that an order for substituted service was justified and therefore, by Order dated October 18th permitted the Claimants to effect service upon Courtney McCrillis-Sigmund by serving a copy of the Claim against her on either of her parents, Maury McCrillis or Lisa McCrillis.
5. The court file confirms on October 18, 2018 an amended Notice of Claim was issued by the court. The named Defendants included Maury McCrillis, Lisa McCrillis and Courtney McCrillis-Sigmund. The scheduled date of hearing was set forth in the Notice to be January 17, 2018.
6. This matter was again brought before me on the scheduled hearing date of January 17, 2018. The Claimants were self-represented. Leon Sampson and his spouse, Wendy Sampson, appeared.
7. The court wishes to note that prior to the scheduled hearing date it was made aware of information received on December 12, 2017 by ordinary mail referencing the claim number assigned to this matter. The information was unsigned although the return address on the letter (handwritten) noted “McCrillis-4036 US RH 2S, Alburth, VT, 05440. Included were two pages (unsigned/undated), each entitled “MOTION TO DISMISS EX PARTE”. The only difference in each was that one referenced Maury McCrillis as named Defendant and the other referenced Lisa McCrillis as named Defendant. Otherwise the content of both pages was the same and essentially requested the Court to dismiss the action against each of these named Defendants on the grounds that “the Claimant has sued the wrong person; that neither had ever had an agreement with the Claimant; that neither resided at the location where the Claimant performed any work”.
8. The court file further confirms receipt of a faxed letter dated January 8, 2018 directed to my attention, unsigned, which included identical copies of the two documents noted above. While the court reviewed these documents, such motions do not form part of the Small Claims Court process. While the procedures employed with this court are intended at times to be dealt with less formally, there are some procedures which are fundamental to ensuring procedural fairness and providing the opportunity for “all” parties to be heard.
9. In these documents submitted by or on behalf of Mr. and Mrs. McCrillis, they formulated their own position as to whether they were properly named as Defendants and further stated that “any correspondence to the Claimant by the Defendant might be construed by the court as acknowledgment of a valid claim, thus requiring alternate service by registered mail from USA.” I take this to mean that the two named Defendants did not wish to submit to the jurisdiction of the court in connection with this matter or, alternatively, they determined on their own that if they did formally respond or appear in defence, this would somehow crystallize a valid claim.
10. If the court’s assessment of what is/was intended by these named Defendants in refusing to properly respond to this claim against them is accurate, then they have taken this action at their own peril. It is the court’s position that any named defendant who has properly been provided of a Notice of Claim and hearing date is obligated to appear in person (with or without legal counsel) and present their defence to the Claim. Clearly the onus in the first instance rests with the Claimant to “prove their claim” to a requisite standard. This necessitates providing evidence to the court under oath together with supporting documentation sufficient to “prove their case”. Clearly it is always open to a named defendant to advance the position that they have been wrongly named and challenge the evidence of the Claimant in this regard. This is an evidentiary issue, one in which “both” parties are entitled to be heard. That is an essential element of any claim and that is a fundamental part of this court process. These decisions belong to the Court and not any one party who may choose to unilaterally determine that “they’ve named the wrong person”.
SUMMARY OF CLAIMANT’S EVIDENCE
11. The Claimant appeared before me and both Leon Sampson and his spouse, Wendy, were sworn in to provide evidence of their Claim. The first matter dealt with was service and proof that it was properly completed on each of the Defendants. In this regard, three separate “return of service” forms were provided to the court from Grand Isle County Sherriff’s Department, two confirming service of the “Amended Claim” on each of Lisa McCrillis and Maury McCrillis at their address previously noted and a third Return of Service confirming service of both the Amended Notice of Claim and Order for substituted service on Courtney McCrillis-Sigmund by leaving a copy of the same with Lisa McCrillis. I am satisfied that service on all Defendants had been properly carried out.
12. The Claimant presented their case surrounding the details of their claim and the monies owed to them. Mr. Leon indicated that he was initially contacted around September 2015 when Maury and Lisa McCrillis came to his home to speak with him and ask if he would attend at their residence in Loch Lomond (“property”) to provide an estimate for various electrical work they wanted completed. Mr. Sampson attended the property and tendered to the court two different estimates he had prepared. Exhibit 1 dated October 5, 2015 was for work in amount of $2302.30 and Exhibit 2 dated November 2, 2015 was for additional work in amount of $26,000.00. Both were addressed to Maury/Lisa McCrillis, [address removed]., Loch Lomond.
13. Mr. Sampson tendered an email exchange he had with M. McCrillis on October 10, 2015 and October 16, 2015 discussing issues surrounding securing required NS Power approvals which were necessary before any electrical work could commence. On October 15, 2015 at 3:51 pm the following email (Exhibit 3) was tendered:
Hi Leon,
Thanks for your reply.
We will contact NSP to get the scoper there. We’ll also have a closer look for the CSA sticker.
So, we’d like you to do the job.
We’re working on setting up the phone in LL again, but you can contact us at 802-796-3077 or at this e-mail Maury……….sent from my iphone
The e-mail immediately preceding this, from Leon Sampson is addressed to Maury and Lisa and included “electrical quote”.
14. Exhibit 4 was tendered representing the final inspection report from NS Power dated December 1, 2015 confirming an inspection was carried out and all required work was completed to their (NSP) satisfaction. Further, Exhibit 5 was a written form tendered, representing Courtney McCrillis-Sigmund’s agreement to pay the balance owing to Leon’s Electrical, stated to be $4900.00, by way of $2500.00 up front and the balance of $2400.00 in equal monthly installments of $200 each. The evidence of the Claimant was that Mr. and Mrs. McCrillis (Lisa and Maury) had returned to their home at this point (December 2015) in the United States and had advised them that their daughter, Courtney, together with her daughter were planning to remain and reside on the property over the winter months.
15. The Claimants tendered several other documents surrounding the details of their accounts, confirmation of payments received and out-of-pocket costs associated with their efforts to collect the balance of their account. Exhibits 6 and 10 confirm the principal balance which remained owing was $2000.00. The Claimants’ evidence further confirmed that their internal accounts were set up in the name of Maury and Lisa McCrillis except for a notice of overdue account that was later addressed to Courtney McCrillis–Sigmund.
16. Based on the evidence given together with the supporting documentation exhibited to me, I am satisfied that a contract for service was entered into between Leon’s Electrical Ltd and Maury and Lisa McCrillis in the principal amount of $4900.00. The evidence is clear that the initial engagement for this work was between these parties. I am further satisfied that by way of written agreement (Exhibit 5) Courtney McCrillis-Sigmund, secured her promise to pay the Claimants’ account. Whether this was intended to be “on behalf of her parents” or as a form of “guarantee for payment of the contract her parents entered into” remains unclear. However, what is clear from the evidence is that all three named Defendants were directly involved in dealing with Leon’s Electrical and therefore all three are responsible for payment of the balance owing. It is also worthy of note that the actual named owner of the property is Lisa Ann McCrillis.
17. The Court is satisfied that the Claimant has proven their case and hereby orders that the Defendants pay to the Claimant the remaining balance of their account in the amount of $2000.00 plus costs as determined below.
18. Exhibit 11 was tendered outlining the Claimants costs as follows:
i) Filing fee to Small Claims Court - $99.70
ii) Service fees incurred in attempts to serve in Canada - $50.00
iii) Registered mail - $13.51
iv) US Civil process/service (Sherriff’s Office) - $202.58
v) Registered mail to US—Sherriff’s office - $26.70
vi) Travel to/from Court House (7 trips) - $420.00
vii) Interest charges - $1153.79
19. In connection with the above, I am satisfied with the first 5 items noted. With respect to item (vi), while the court fully appreciates the travel time and expense incurred by the Claimants as they attempted to work through this process, travel costs associated with attending court are generally not something awarded unless the successful party resides or carries on business outside of the county in which the hearing was held. In this instance, having regard to the fact that the Claimants operate their business out of Louisdale, which is located in Richmond County, and therefore having to attend in Sydney to deal with this claim and further, having regard to their need to attend court for purposes of obtaining an order for substituted service, I am prepared to award $150.00 for travel expenses.
20. As for item (vii) relating to interest, this may be considered a natural extension of the principal monetary claim provided adequate notice has been provided to the customer. Based on the exhibits tendered, it would appear the first notice of interest being charged is found in Exhibit 10 which was an “overdue” invoice dated June 3, 2016. On that statement, it clearly notes that the account is outstanding and further that interest will be charged on overdue accounts at the rate of 2% per month. I find from that date to the hearing date was approximately six and one-half months and no further payment was received on account and the balance remained at $2000.00. It may be that there were earlier overdue notices sent but none were tendered to the court nor was there any reference to “interest charges” on the original estimates prepared. Therefore, I award interest in the amount of $260.00, such sum equaling 2% per month of the principal outstanding for this six and one-half month period.
ORDER
21. Based on the foregoing, I direct the Defendants to pay to the Claimants the following forthwith:
(i) Claim $2,000.00
(ii) Interest $260.00
(iii) Travel $150.00
(iv) Service fees incurred in attempts to service in Canada $50.00
(v) Registered Mail $13.51
(vi) US Civil process service (Sheriff’s Office) $202.58
(vii) Registered Mail to US Sheriff’s Office $26.70
(viii) Filing Fee $99.70
TOTAL: $2,802.49
DATED at Sydney, Nova Scotia this 5th day of March 2018.
_______________________________
A. ROBERT SAMPSON, Q.C.
Adjudicator