IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: Nadolny v. Niagara Varsity Football Club Inc., 2017 NSSM 98
Claim No: SCCH 458892
BETWEEN:
Tyler Nadolny
Claimant
-and –
Niagara Varsity Football Club Inc.
Defendant
Tyler Nadolny - Self-Represented.
Raymond Tisi and Kelly Duguay for the Defendant.
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.
DECISION
(1)
The
Claimant, Tyler Nadolny, operates a sole proprietorship known as “The Motivated
Clothing”, where he sells logoed shirts and related items on-line. Some of the
articles have team logos while others have motivational sayings. Mr. Nadolny is
a former member of the Mount Allison Mounties football team and sought an
outlet to support youth sports and reach young athletes. This worthwhile
objective manifested itself in the form of his clothing business.
(2)
One of
Mr. Nadolny’s first customers was the Niagara Spears football club (“the team”),
an amateur football organization operated by the Defendant and based in St.
Catharine’s, Ontario. Unfortunately for Mr. Nadolny, things did not go as
planned
Jurisdiction
and Procedural Issues
(3) The Defendant initially raised the issue of jurisdiction of the Nova Scotia courts to hear this matter. However, at the outset of the hearing, they conceded that Nova Scotia is a proper forum and they were prepared to attorn to this jurisdiction. The Defendant’s witnesses gave evidence by telephone conference.
(4) Ms. Duguay and Mr. Tisi testified the Defendant’s proper name is Niagara Varsity Football Club Inc. The Defendant’s name and style of cause is amended accordingly.
(5)
The
team ordered polo shirts with their logo at a cost of $22 each for their
players. The team’s initial order had several shirts where the wrong sizes were
sent by the supplier. The Claimant discounted the order by the number that were
sized wrong and provided replacements at no additional cost. Put another way,
the Claimant took orders for 276 shirts, 34 of them were sized wrong, so he
provided a discount of $748 plus HST and provided replacements at no additional
charge to the Defendants.
(6)
The
final number of shirts was provided on May 8, 2016 and the anticipated delivery
date was May 31. The product arrived late from Mr. Nadolny’s supplier,
receiving them during the first week of July. He finally received the
replacements by July 28.
(7)
There
are several payments which were made and cheques replaced. According to Mr.
Nadolny, below are the final tallies:
242 shirts @ $22 each $5324.00
HST (Ontario rate 13%) $ 692.12
Total $6016.12
(8)
The
club sent him a cheque for $4499.66.
(9)
In addition
to logoed polo shirts, Mr. Nadolny sold compression wear to parents and team
members on an individual basis. Some of these items remain unpaid.
(10)
In his
Notice of Claim, Mr. Nadolny seeks compensation for the compression wear order
and his expenses to travel to Ontario to meet with representatives from the
team in hopes of saving the business relationship.
(11)
Kelly
Duguay testified that the football season for the Niagara Spears runs from the
end of May until August 3. The purpose of the polo shirts was to ensure the
team wore identical shirts to games and team events. She indicated Mr. Nadolny
told her the order would take four weeks and to expect its arrival by the
middle of June, 2016.
(12)
Raymond
Tisi is the Treasurer of the Defendant. He testified that the compression wear
involved arrangements between Mr. Nadolny and the individual parents. Some of
those items have not been delivered. The Spears had nothing to do with the
shipment. That work was procured by Mr. Nadolny directly with the parents.
(13)
As for
the order itself, he found they used only 181 polo shirts. The remaining amount
had arrived late and were not taken by the team members.
Findings
(14) Having reviewed all of the
evidence, I find the initial order was for 276 shirts and 34 of them were sized
wrong. As a result, Mr. Nadolny reduced the price by supplying the replacements
for free and allowing the teams to keep the wrongly sized shirts. I find the
order was delivered late. I find the lateness was acceptable for 181 of the
team members. The remaining 61 shirts (or 54 depending on the evidence of the
Spears) were part of the order. It is no consequence that the parents did not
take them. The shirts were ordered and delivered. The contract was between the
team and Mr. Nadolny. Furthermore, I find there is nothing in the contract
stipulating time was of the essence. The shirts were late by a few weeks only.
That is not sufficient to order a further discount in the order. I find the
Claimant has proven liability for the balance of the order, $1516.46.
(15) The same cannot be said for
the compression wear. This order was addressed through the parents directly.
Mr. Nadolny did not require payment up front and he is having difficulty
collecting. The team’s involvement was to deal with Mr. Nadolny on behalf of
the parents to resolve the difficulties with the compression wear. There is no
evidence they intentionally or ostensibly assumed liability for the compression
wear. I find they did not. This portion of the claim is dismissed.
(16)
Mr.
Nadolny seeks compensation for his trip to Ontario to meet with the
representatives of the team. This may have been a prudent move, but the
decision was a business decision, not legally required under his contract. I
cannot conceive of any legal principle which would impose liability on the
Defendant for these expenses. I dismiss this portion of the claim.
Judgment
(17)
I find
the Claimant has established liability against the Defendant for $1516.46.
(18)
I award
prejudgment interest of $60.00. Typically, costs follow the result. Given that
Mr. Nadolny was only partially successful, I limit costs to $75.
(19) The Claimant, Tyler Nadolny shall have judgment against the Defendant, Niagara Varsity Football Club Inc., for $1651.46.
Dated at Halifax, NS,
on September 28, 2017;
______________________________
Gregg W. Knudsen, Adjudicator
Original: Court File
Copy: Claimant(s)
Copy: Defendant(s)